Not willing to give up on the nearly 3-year-old patent infringement case, Nautilus has appealed the lower court victory given to Icon in late May to the federal appellate court.
After the win was handed to Icon in May when the court dismissed the case (click here to see the SNEWSÂ® May 27, 2005 story, "U.S. court dismisses Nautilus' patent infringement case against Icon), the court has remained busy with motions for reconsideration and arguments for and against them.
On Aug. 29, the U.S. District Court, Western District of Washington, Seattle, issued its final judgment under Judge Ricardo Martinez against Nautilus in the infringement case originally filed in December 2002 by Nautilus charging Icon with infringement of its Bowflex.
"Judgment is entered in favor of Icon and against Nautilus on Icon's counterclaim for
declaratory judgment of non-infringement,â€¦" the two-page statement read. "The Court dismisses with prejudice Nautilus' claims for infringement of the '704 and '057 Patents and hereby enters judgment thereon in favor of Icon and against Nautilusâ€¦. The Court finds no just reason for delay and makes this judgment FINAL."
Two days later, Nautilus issued its intent to appeal and on Sept. 12, Nautilus sent its packet to appeal the ruling to the U.S. Federal Circuit Court of Appeals, Washington, D.C.
"We have begun the appeal process on the patent infringement case, which may realistically take four to five quarters," a Nautilus spokesman responded in brief to a query for comment.
Icon pointed to the fact that the federal court had already ruled once in Icon's favor in a previous appeal, so for Nautilus to bring the case to the same court again and have it heard means Nautilus will try to show other evidence to prove infringement. Nautilus, however, has won two separate prior federal appeals: one in February 2004 that reinstated the patent case after it was dismissed the first time by the district judge, and one in June 2004 that affirmed the granting of a preliminary injunction that meant Icon had to stop using the Crossbow name. The June federal ruling was the result of a reconsideration of a previous federal ruling in Icon's favor on the same issue.
"We're confident in the lower court's ruling in this," said Brad Bearnson, Icon legal counsel, "and we think it will be upheld."
Bearnson said the case could take from five to nine months, depending on whether the court actually agrees to take it. If Nautilus were to win, the district court would then take it back onto its trial calendar.
In other cases pending between the two companies:
>> A second patent infringement case filed by Icon against Nautilus in August 2002 is nearing an early November jury trial in the U.S. District Court, District of Utah. It was originally scheduled for August but was postponed.
>> A trademark infringement case that was originally part of the patent infringement case now going to appeal has been on hold but may now get put back on the court calendar.
>> Another trademark infringement case filed by Nautilus in July 2004 has been moving more slowly as the emphasis has been on the patent case now in appeal. It concerns the Crossbar name adopted by Icon for its former Crossbow when it needed to change the name to satisfy the court. Nautilus alleges in that case that the Crossbar name is also too close to the name Bowflex and may still confuse the consumer. It is currently set for a January 2006 trial.