in that listing are references to several prior patents as well as to specific statements to the effect that, before the claimed design was made, the designer of ordinary capability in the art of designing price tag label strips was aware of strips, attachments, or pins having the appearance depicted in figures of the application documents. In his memorandum in support of the summary judgment motion, the Commissioner elaborates on these listings by pointing out that, for example, both the Bone patent and the claimed design have "a relatively large head portion, an elongated filament connecting member and a relatively small end bars." Similarly, he states that the Suzuki and Furuti patents each show individual price tag label strip elements which have a "picket shaped" head portion.
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.
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.
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 contemporaneously herewith, this 12th day of July, 1988
ORDERED that defendant's motion for summary judgment be and it is hereby granted; and it is further
ORDERED that this action be and it is hereby dismissed.
HAROLD H. GREENE, United States District Judge