UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Hypertherm, Inc.

v. Civil No. 05-cv-373-JD

American Torch Tip Company

O R D E R

Hypertherm, Inc. moved for summary judgment that American

Torch Tip Company’s (“ATTC”) replacement parts infringe five of

Hypertherm’s patents, United States Patents No. 7,019,255 (“‘255

patent), No. 6,946,617 (“‘617 patent”), No. 6,207,923 (“’923

patent”), No. 5,977,510 (“‘510 patent”), and No. 5,310,988 (“‘988

patent”). ATTC moved for summary judgment of non-infringement of

the ‘923, ‘255, ‘510, and ‘988 patents. ATTC’s motions also

address invalidity of the ‘255, ‘617, and ‘988 patents and

marking of the ‘510 patent. 

After those motions were filed, the court on July 24, 2008,

granted Hypertherm’s motion for summary judgment (document no.

133), in part, and directed the parties to file a joint notice

specifying those parts of pending motions that were resolved or

changed by the order. On August 6, 2008, the court granted

Hypertherm’s motion to strike (document no. 219) certain evidence

ATTC submitted in support of its defenses. Because the parties

disagreed about the effect of the July 24 order, while ATTC’s

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motion for reconsideration was pending, their joint notice in

response to the July 24 order was not helpful.

On September 11, 2008, the court granted Hypertherm’s motion

for summary judgment and denied ATTC’s motion for summary

judgment on ATTC’s affirmative defenses of laches, estoppel,

acquiescence, waiver, and unclean hands. The court denied ATTC’s

motion for reconsideration of the August 6 order. The court also

denied ATTC’s motion for reconsideration of the July 24 order,

except that the order was amended to incorporate certain

corrections filed by Hypertherm on March 11, 2008. ATTC’s motion

for reconsideration of the September 11 order was denied on

November 17, 2008. 

With the motions for reconsideration decided, the court

ordered the parties to file a joint notice “clearly specifying

the parts of pending motions that have been resolved or changed

in any respect by the July 24, 2008, order.” In response, the

parties filed a notice that listed two of the pending motions as

not resolved or changed and listed four motions as resolved or

changed. The notice did not specify which parts of the motions

had been resolved or changed. Therefore, the parties failed to

comply with the court’s order. Since that time, the court has

issued additional orders on pending motions, which may affect

pending motions. 

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Trial is scheduled on the infringement claims in February of

2009. Therefore, the pending motions that could affect those

claims and any remaining defenses should be addressed as

expeditiously as possible. 

Conclusion

For the foregoing reasons, the parties’ joint notice filed

on November 26, 2008, is rejected because the parties failed to

comply with the court’s order. On or before January 12, 2009,

the parties shall file a joint notice specifying in detail which

parts of the pending motions have now been resolved or changed by

the orders that have been issued to date. If the parties cannot

agree as to the effect of the court’s orders, they shall file

separate notices with thorough explanations for their

disagreement and for their reasonable view of the effect of the

court’s orders. Disagreement with an order is not a reasonable

basis to avoid its effect on other pending motions. 

Any response that fails to comply with this order or fails

to provide detail as to the parts of pending motions that have

been resolved or changed by intervening orders may result in

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sanctions, which could include dismissal of affected claims or

defenses.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

December 29, 2009

cc: Jill C. Anderson, Esquire

Jacob K. Baron, Esquire

Steven M. Bauer, Esquire

Lucas M. Blower, Esquire

Colin G. Cabral, Esquire

Seth M. Cannon, Esquire

Joseph A. Capraro, Jr., Esquire

Christopher J. Carney, Esquire

Jeffery M. Cross, Esquire

Joseph T. Dattilo, Esquire

Ami D. Gandhi, Esquire

Maia H. Harris, Esquire

Marc H. Kallish, Esquire

Rhett R. Krulla, Esquire

Jonathan A. Lax, Esquire

Richard C. Nelson, Esquire

W. Scott O'Connell, Esquire

Jeremy P. Oczek, Esquire

Richard D. Rochford, Jr., Esquire

David W. Ruoff, Esquire

John T. Shapiro, Esquire

John M. Skeriotis, Esquire

Benjamin M. Stern, Esquire

Wayne Tang, Esquire

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