On July 23, 2020, United States District Court Judge Paul G. Gardephe adopted in full the Report and Recommendation (“R&R”) of Magistrate Judge Barbara Moses. The procedural history of the case and analysis of Judge Moses’ report were discussed in an earlier post here. Judge Gardephe reviewed the R&R for clear error even though the parties waived their right to judicial review. Judge Gardephe agreed that the Defendant was subject to personal jurisdiction in the district because: 1) service of process was procedurally proper, 2) there was a statutory basis for personal jurisdiction, and 3) the exercise of personal jurisdiction comported with constitutional due process principles. He noted that Defendant was properly served under § 387(1)(b) of New Zealand’s Companies Act of 1933. There was also a statutory basis for personal jurisdiction because “Defendant offered to sell the alleged infringing product to New York residents on its website.” Finally, due process principles were not offended because Defendant had sufficient “minimum contacts” with New York for purposes of due process.

Judge Gardephe also noted that the award of damages to Plaintiff was proper. The request for $10,000 in “nominal” fees by Plaintiff was not granted, as “modern cases authorizing nominal damages under the Patent Act generally award significantly smaller amounts.” Judge Gardephe found that the case was not “exceptional” as to award Plaintiff its attorney’s fees under 35 U.S.C. § 285. The Court did find Plaintiff’s request for costs reasonable and awarded Plaintiff the full $4,272.60 requested. Finally, Judge Gardephe adopted Judge Moses’ recommendation that Plaintiff’s request for a permanent injunction be granted. 

The case is: American Infertility of New York, P.C. v. Deep Blue Health New Zealand Ltd., No. 17-cv-5666 (July 23, 2020)