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ACCU-SORT SYS. v. LAZERDATA CORP.

April 21, 1993

ACCU-SORT SYSTEMS, INC.
v.
LAZERDATA CORPORATION



The opinion of the court was delivered by: JOHN R. PADOVA

 Padova, J.

 Plaintiff, Accu-Sort Systems, Inc. ("Accu-Sort"), alleges that defendant, Lazerdata Corporation ("Lazerdata"), violated section 43(a) of the Lanham Act, 15 U.S.C.A. ยง 1125(a) (West Supp. 1993), *fn1" by incorporating into an advertising brochure false and misleading statements about Accu-Sort's product -- a laser scanner capable of reading bar codes. *fn2" In support, Accu-Sort attaches to its complaint a copy of the allegedly offensive brochure and cites to the following language therein:

 
RECONSTRUCTION METHODS
 
Barcode reconstruction methods are based on the fact that, as a barcode moves under the laser's scan line, all of the barcode will eventually be "seen". In theory then, it should be possible to save up all the barcode fragments and then rebuild them into the complete barcode once the label has passed out from under the scan line.

 [diagram deleted]

 
The difference in reconstruction methods involves how these barcode fragments are rebuilt into the whole so that the information encoded in the label is recovered.
 
There are at least six patents involving different methods of accomplishing this rebuilding task. The method in the widest use currently is covered in patents assigned to Accu-Sort Systems, Inc. and is built into a group of omni-directional and line scanners.
 
The patented methods use pattern matching to line up each fragment with the fragment before. In other words, the software slides the new fragment along the data which has been previously acquired until the bars and spaces match up.
 
The dangerous thing about reconstruction technology is the increased risk of mis-reads. Mis-reads become more likely in reconstruction because of the loss of redundancy.

 Accu-Sort claims that Lazerdata's characterization of its product as "dangerous" because of an "increased risk of misreads . . . because of the loss of redundancy" is false and misleading, and Accu-Sort seeks damages, profits, treble damages and profits, costs and attorney's fees. Presently before the Court are cross motions for summary judgment on this claim. *fn3" For the following reasons, I will deny these motions.

 I.

 Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Whether a fact is material will be determined by reference to the "substantive evidentiary standards that apply to the case." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Whether a genuine issue of material fact is presented will be determined by asking if "a reasonable jury could return a verdict for the non-moving party." Id.

 Rule 56 requires opposition to a proper motion for summary judgment to be made by submission "of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Such evidence and all justifiable inferences that can be drawn from it are to be taken as true. Anderson, ...


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