On the heels of the federal court ruling earlier this month that said the district court needed to reconsider the evidence that had led it to recent rulings in Icon’s favor, the Bowflex patent infringement case filed by Nautilus against Icon more than 16 months ago will go another round. Or two.
The jury trial has now been set by Judge Marsha Pechman of the U.S. District Court, Western District of Washington to begin on March 15, 2005 (yes, 2005!), and the court stated in its March 29 order that it expected the trial to last 10 days. In the past three months since Nautilus had appealed the district court’s dismissal of the case to the Federal Circuit Court of Appeals in Washington, D.C., motions for consideration and reconsideration and motions to strike motions for reconsideration on various grounds have flown back and forth.
Both parties have repeatedly declined settlement offers and counteroffers, with representatives for both companies telling SNEWSÂ® the case would most likely be going to trial.
Meanwhile, a so-called Markman hearing is set for Sept. 10. In a Markman hearing, both sides present their evidence before the trial judge prior to the jury trial — much like a short version of a pre-trial trial. The judge then issues opinions about merits of the claims. The theory is, the outcome can increase the likelihood of a pre-trial settlement and therefore avoid a time-consuming and even more costly jury trial. In addition, after a Markman hearing, the successful party may file a motion for summary judgment on patent infringement or validity, which is often granted by the court. As one judge has said about Markman hearings: “to decide what the claims mean is nearly always to decide the case.”
The Bowflex patent expires April 27, 2004, but both parties feel there is tens if not hundreds of millions of dollars at stake since damages would be calculated from the time the Icon Crossbow product in question was introduced to the market in October 2002.
Still pending is the trademark infringement allegation by Nautilus that has charged the Icon Crossbow, marketing under the Weider brand name, is too similar in name and promotions to those of the Nautilus Bowflex and thereby confusing to the consumer. Both the patent and trademark charges were brought in the same suit filed by Nautilus in December 2002, but are being addressed separately. Substantial damage awards are also at stake in this case, and a separate trial is expected.
SNEWSÂ® View: OK, let’s boil this down. One, neither of the two companies is going to cry Uncle before the hearings commence. In your dreams, right? Two, Nautilus sees several hundred million dollars spinning in front of its eyes in back damages. Three, don’t you want to bet that Icon is working on a whole lot of new product it has ready to burst onto the market in, oh, a month. Four, the possibility of yet another appeal to the feds STILL will exist after all this. Sigh. Your tax dollars at work. And, five, just you wait until April 28: No matter what the outcome, don’t you just KNOW there’ll be an immediate influx of Powerbows, Flexbows, Bowpowers, Muscleflexs, Pumpbows, Flexpowers and you-name-it-whats, all trying to cash in on the Bowflex’s cache before it trickles away.