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RUSSELL v. COMMISSIONER OF PATENTS & TRADEMARKS

July 12, 1988

DAVID B. RUSSELL, Plaintiff,
v.
COMMISSIONER OF PATENTS AND TRADEMARKS, Defendant


Harold H. Greene, United States District Judge.


The opinion of the court was delivered by: GREENE

HAROLD H. GREENE, UNITED STATES DISTRICT JUDGE

 This is a patent case involving a design for "price tag label strips." The Board of Patent Appeals and Interferences affirmed the examiner's rejection of the design submitted by plaintiff on the ground that the design would have been obvious. Following the filing of the action in this Court, the Commissioner filed for summary judgment, and it is that motion, plaintiff's opposition, and the Commissioner's reply that are presently before the Court.

 Initially the Commissioner argued that the lawsuit was not brought in the name of the real party in interest, but that issue was subsequently mooted by the entry of that party pursuant to an order of the Magistrate. The Commissioner continues to argue that the question of obviousness is one of law rather than of fact and appropriate for summary judgment on that basis. Although the courts have referred to this question as being ultimately one of law, it is apparent from the actual language of the opinions that this means little more than that, for example, a question of negligence or of breach of contract, is ultimately one of law. The legal question here, as in the examples, must be decided on the basis of facts presented to the tribunal. See, e.g., Graham v. John Deere, 383 U.S. 1, 17, 15 L. Ed. 2d 545, 86 S. Ct. 684 (1966); Sakraida v. Ag Pro, Inc., 425 U.S. 273, 280, 47 L. Ed. 2d 784, 96 S. Ct. 1532 (1976).

 The real question before the Court on the motion, therefore, is whether a genuine issue of material fact sufficient to defeat summary judgment is presented. Fed. R. Civ. P. 56. The Court concludes that plaintiff has failed to demonstrate the existence of such an issue.

 In response, plaintiff does no more than to make such entirely conclusory statements, without factual elaboration, as that several named patents "are not representative of the scope and content of the prior art" or of the "level of ordinary skill in the art of designing" the strips; that there "are several sole significant differences" between the claimed design and one of the patents; that the design characteristics of the claimed design and an existing patent "are different;" and that the appearance of the price tag label strip "is different" from the claimed design. *fn1" None of the alleged differences are spelled out.

 Such conclusory statements are not sufficient to raise a genuine issue of material fact. Barmag Barmer Maschinenfabrik AG v. Murata Machinery, Ltd., 731 F.2d 831, 836, 221 U.S.P.Q. (BNA) 561 (Fed. Cir. 1984); SRI International v. Matsushita Electric Corp., 775 F.2d 1107, 1116, 227 U.S.P.Q. (BNA) 577 (Fed. Cir. 1985).

 In addition to this basic defect, it should be noted that plaintiff failed to respond to any of the Commissioner's requests for admissions within the time allowed under the Rules, nor did he ask for an enlargement of time. Under Fed. R. Civ. P. 36(a) the matter covered by the requests "is admitted," and on this basis, too, summary judgment for the defendant is appropriate. Finally, except for discussing the issue of whether obviousness is one of fact or law, plaintiff has not bothered in his memorandum in opposition to the motion to explain in any coherent manner why the motion should be denied. *fn2"

 For the reasons stated, defendant's motion for summary judgment must be granted. An order consistent with the above is being issued contemporaneously herewith.

 July 12, 1988

 ORDER - July 13, 1988, Filed

 Upon consideration of defendant's motion for summary judgment, the opposition thereto, the entire record herein, it is, for the reasons stated in a Memorandum issued ...


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