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January 30, 2004.

CF INFLIGHT, LTD, Plaintiff,
CABLECAM SYSTEMS, LTD, et al Defendants

The opinion of the court was delivered by: LEGROME DAVIS, District Judge



Presently before the Court are the Motion for Preliminary Injunction filed on December 24, 2004 by CF Inflight, LTD ("Plaintiff")(Doc. No. 5), the Motion for Expedited Discovery filed on December 29, 2004 by Plaintiff (Doc. No. 6), the Answering Brief in Opposition to Plaintiffs Motion for Preliminary Injunction filed on January 16, 2004 by Cablecam Systems, LTD. ("Defendant")(Doc. No. 16), the Reply Brief in Support of Preliminary Injunction filed on January 20, 2004 by Plaintiff (Doc. No. 17), the Proposed Findings of Fact and Conclusions of Law filed on January 26, 2004 by Plaintiff (Doc. No. 25), the Proposed Findings of Fact and Conclusions of Law filed on January 27, 2004 by Defendant (Doc. No. 26), and the Transcript of the Evidentiary Hearing conducted on January 26, 2004 (Doc. No. 28). Also before the Court are the Motion to Strike the Post Hearing Findings of Fact and Conclusions of Law filed on January 28, 2004 by Defendant (Doc. No. 30), and the Response in Opposition to the Motion to Strike filed on January 28, 2004 by Plaintiff (Doc. No. 29).

  For the reasons set forth herein, Plaintiffs Motion for Preliminary Injunction (Doc. No. 5) is DENIED. Plaintiffs Motion for Expedited Discovery (Doc. No. 6) is DENIED as moot Page 2 because it is subsumed by the Amended Scheduling Order issued by the Court on January 12, 2004 (Doc. No. 14). Defendant's Motion to Strike is GRANTED.*fn1


  On September 24, 2003, Plaintiff filed a Complaint against Cablecam International and Cablecam Systems, Ltd. alleging that Cablecam's Multi-V camera suspension system infringes Plaintiffs U.S. Patent No. 4,710,819 ("`819 Patent") (Doc. No. 1). CF Inflight filed an Amended Complaint on November 24, 2003 naming Cablecam as the sole defendant. (Doc. No. 4). On December 24, 2003, Plaintiff filed a Motion for Preliminary Injunction seeking to prevent Cablecam from operating its Multi-V system at the CBS Sports ("CBS") televised Super Bowl scheduled to air on February 1, 2004. Pursuant to this Court's Order of January 12, 2004 (Doc. No. 14), the parties conducted discovery and submitted briefing on Plaintiffs Motion. On January 26, 2004, the Court heard oral arguments and testimony regarding the parties' positions and, having been fully briefed thereon, renders the following findings of fact and conclusions of law.


  1. CF InFlight develops novel camera systems for the entertainment industry, particularly for athletic broadcasting. As the patent assignee from the inventor of the Skycam®, Mr. Garrett Brown ("Mr. Brown"), CF Inflight, has the right to assert all causes of action and seek Page 3 equitable or legal remedies for infringement of the `819 Patent through its principal, Roland Thompson ("Mr. Thompson").

2. Among many other camera devices for which he holds approximately fifty patents, Mr. Brown, a Philadelphia inventor and cinematographer, invented the Skycam®, a camera system that operates suspended from a computerized transport device. Pl.'s Mem. at 2.
3. Mr. Brown is a member of the American Society of Cinematographers, the Directors Guild, the Screen Actors Guild and the Academy of Motion Picture Arts and Sciences. Pl.'s Mem at Ex. C. He has published numerous articles relating to cinematography and has lectured at film festivals and schools. Id. In addition to filming professional and amateur sporting events, his work has been used in films such as "The Shining," "Rocky," and "Return of the Jedi." Hr'g Tr. at 100. He has won an Academy Award®, Emmy Awards, and numerous international awards. Id.
4. Mr. Brown conceived of the Skycam® after a discussion with Merlin Olson and he deployed the first commercial system in 1984. Hr'g Tr. at 102.
5. Cablecam International, Inc. ("Cablecam") is a corporation engaged in the development and deployment of various camera suspension systems. Cablecam focuses its business primarily in the area of television, film, commercials and professional sports. D.'s Opp'n at 8.
  6. James Rodnunsky ("Mr. Rodnunsky"), Cablecam's principal and designer of the Multi — V camera system, has developed innovative camera systems for nineteen years. Some of the Cablecam systems designed by Mr. Rodnunsky include the Traveling High Line, Dial High Line, Flying-V and the Manned A to B. D.'s Opp'n at Ex. 1. In addition to filming professional and amateur sporting events, his work has been used in films such as "Hook," Page 4 "Terminator 2," "Con Air," "Dudley Doright," "Spiderman," and "Daredevil." Hr'g Tr. at 186-187. He has earned an award for technical achievement from the Academy of Motion Picture Arts and Sciences and six Emmy awards. Id. at 188.
7. Mr. Rodnunsky first conceived of the Multi-V when asked to develop a system to provide aerial coverage for Fox Sports. According to Mr. Rodnunsky, the Multi-V camera system evolved from combining the principles of the Flying V (a system deployed by Cablecam at NBA basketball games) with the rolling tag system (a concept developed by Cablecam during the filming of a movie in Prague). Hr'g Tr. at 214-215.
8. The United States Patent and Trademark Office ("PTO") issued the `819 Patent, titled "Suspension System for Supporting and Conveying Equipment Such as a Camera," to Mr. Brown in compliance with the Patent Statute and without defect or informality in issuance. U.S. Patent No. 4,710,819 (issued Dec. 1, 1987).
9. The term of the `819 Patent is seventeen years and expires on December 1, 2004. Claim 1 of the `819 Patent is as follows:
A suspension system for supporting and conveying equipment, said system comprising: at least three elongate, flexible members; mounting means spaced-apart from each other for extendably and retractably supporting said flexible members;
an equipment support member attached to each of the flexible members, wherein the equipment support member is adapted to be moved in three directions in response to movement of the flexible members; and
means for operatively connecting said equipment with said equipment support member so that said equipment is in controllable isolation from angular movement of said equipment support member.
Claim 58 of the `819 Patent is as follows:
  In a suspension system for supporting equipment in three-dimensionally adjustable positions by means of at least three cables which are operatively Page 5 connected to said equipment and which extend away from said equipment in different directions, the combination of:
at least three elevated support means, one for each of said cables, spaced from said equipment and defining the corners of a three-dimensional space above the surface over which they are elevated;
means for adjusting the lengths of the cables between the respective support means and the equipment in such relationships as to move said equipment in three directions to place the equipment in any desired position within said three-dimensional space; and
means for providing controllable angular isolation of said equipment from the cables which support said equipment.
U.S. Patent No. 4,710,819 (issued Dec. 1, 1987).
10. In July 2003, CF Inflight entered into an exclusive contract with ESPN for the ESPN Sunday Night Football and ABC Monday Night Football telecasts. Pl.'s Mem. at 4.
11. The exclusivity contract precluded Plaintiff from providing similar services to Fox Sports ("Fox") or CBS who had both expressed interest in obtaining aerial footage of NFL games without the express permission of ESPN. Id.
12. Upon request by Fox, Cablecam has been using its Multi-V system since August 2003 for televising NFL Football games. D.'s Opp'n at 8.
13. Beginning in October 2003, CBS was awarded the rights to televise many of the 2003-2004 NFL playoff games and the February 2004 Super Bowl and sought to award Plaintiff the contract to provide aerial camera perspective for the post-season NFL football games. Pl.'s Reply at Ex. A.
  14. After lengthy negotiation for permission to enter into contract with CBS despite the exclusivity contract with ESPN, Mr. Thompson and CBS were unable to come to an agreement. Pl.'s Reply at Ex. A; Hr'g at 53. Page 6
15. Via e-mail correspondence, CBS communicated to Plaintiff its intention to negotiate with both Cablecam and Spydercam, another competitor. CBS awarded a contract to Cablecam for all but one post-season NFL games on or about Wednesday, December 17, 2003. Hr'g Tr. at 46.
A. Standard for Preliminary Injunction
  The standard for a preliminary injunction is the same as that for a temporary restraining order. Bieros v. Police Chief Nicola, 857 F. Supp. 445, 446 (E.D.Pa. 1994). A party to a patent dispute, must convince the Court that the following factors favor granting preliminary injunctive relief: "(1) the likelihood that the moving party will succeed on the merits; (2) the extent to which the moving party will suffer irreparable harm without injunctive relief; (3) the extent to which the nonmoving party will suffer irreparable harm if the injunction is issued; and (4) the public interest." Novartis Consumer Health, Inc. v. Johnson & Johnson-Merk Consumer Pharms. Co., 290 F.3d 578, 586 (3d Cir. 2002) citing Clean Ocean Action v. York, 57 F.3d 328, 331 (3d Cir. 1995); see also Impax Laboratories, Inc. v. Aventis Pharmaceuticals, Inc., 235 F. Supp.2d 390 (D.Del. 2002); Merrill Lynch v. Napolitano, 85 F. Supp.2d 491, 496 (E.D.Pa. 2000).

  B. Likelihood of CF Inflight's Success on the Merits

  In order for CF Inflight to obtain a preliminary injunction to enjoin Cablecam from providing the Super Bowl coverage, it must establish that it will likely succeed on the merits of its patent infringement claim. The Third Circuit has recognized that "[i]t is not necessary that the moving party's right to a final decision after trial be wholly without Page 7 doubt; rather, the burden is on the party seeking [injunctive] relief to make a prima facie case showing a reasonable probability that it will prevail on the merits." Oburn v. Shapp, 521 F.2d 142, 148 (3d Cir. 1975): see also Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994). "`Reasonable' probability is used in the opinions interchangeably with `substantial' likelihood of success." Gucci Am., Inc. v. Daffy's, Inc., 2000 WL 1720738, at *7 (D.N.J. Nov. 14, 2000) citing Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989). "`Probability of success' implies that the moving party, usually the plaintiff, must have a very clear and strong case." J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 30:45 at 30-80. In the patent infringement context, to establish likelihood of success on the merits, the moving party must show, consistent with the burdens of proof required at trial, that (1) its patent was infringed, and (2) ...

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