Calmar, Inc. v. Emson Research, Inc.

Background

This action arises out of an alleged patent infringement. The Defendant (“Emson”) alleges it has been making the accused pump sprayers (a ball type PMP pump sprayer which “burp” down the dip tube) since at least 1981.

On August 7, 1992, Plaintiff (“Calmar”) brought the instant action against Emson alleging that the pump sprayers manufactured and sold by Emson infringe Calmar’s 4,051,983 patent. Calmar, through its counsel, has since confirmed that it asserts its claims of patent infringement against these ball type sprayers whether they use a groove or a bump to “burp” down the dip tube.

On August 21, 1992, Emson brought to Calmar’s attention, U.S. Patent No. 4,144,987 (“the Kishi patent”), which was not before the Patent and Trademark Office (“PTO”) and which teaches the “down the dip tube” burping which Calmar had told the patent office was its invention. Emson also provided Calmar with the drawings of its pumps, and pointed out why its pumps did not infringe the ’983 patent.

On September 21, 1992, Emson answered the complaint, counterclaimed that the ’983 patent was invalid, and that Calmar was unfairly competing with Emson by threatening its customers with suit…