UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Cary Ratner

v. Civil No. 08-cv-418-PB

Martel Electronics Corporation

O R D E R

Defendant moves to compel more complete answers to its

interrogatories 1-7 and 9-11 and to compel production of

documents responsive to Request nos. 1-5, 7-9, and 12-43. 

Plaintiff objects.

Background

This is a patent infringement case in which plaintiff

appears pro se. At the preliminary pretrial it was apparent that

this was an appropriate case for limited, focused discovery to be

followed by a prompt mediation. Plaintiff was concerned that the

defendant would not limit discovery to that necessary for

mediation and would not mediate in good faith. The number of

alleged infringing products produced is less than 1,000. Given a

prior settlement for infringement, the amount in dispute appears

to justify significant mediation effort. I offered the parties

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the opportunity to enlist the services of David Plant, Esq., an

extraordinarily able and nationally acclaimed intellectual

property mediator. The parties agreed to mediation but are now

in dispute about discovery defendant alleges is necessary for

meaningful mediation. The parties are forewarned that having

enlisted the court’s mediation plan that a failure to mediate in

good faith may well result in severe sanctions. Rulings on the

discovery disputes follow.

Rulings

Defendant Martel has argued only interrogatories #3 and #6

specifically. It has essentially left the court to rule on all

other contested answers based solely upon the face of the

question and response.

Interrogatories

Interrogatory No. 1.

“Please identify your claim construction for the 152' patent

including any intrinsic or extrinsic evidence that you believe

supports your construction.”

Answer: “The 152' Design Patent speaks for itself.”

Ruling: This is a remarkable interrogatory. It seeks a

legal brief on all the claims of the patent - from a non-lawyer

pro se plaintiff. The answer is adequate in that plaintiff’s

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position is that the language of the claims is sufficient in and

of itself. The motion is denied as to No. 1.

Interrogatory No. 2.

“Please identify the factual basis for your contention that

Martel infringes the 152' patent under the ordinary observer

test, including the level of skill and experience of and ordinary

observer and all instances of confusion relating to the Accused

Products of the 152' patent.”

Answer: “The handles on the Martel Pumps are a copy of the

handles described in the 152' patent.”

Ruling: (1) “The ordinary observer test” calls for a legal

analysis and is improper and inappropriate. Ignoring the legal

doctrine as the pro se plaintiff did, the answer, which is

consistent with the complaint, is adequate. Motion denied.

Interrogatory No. 3. 

“For the design claimed by the 152' patent, please identify

the date of conception, reduction to practice, first offer for

sale, first sale and first description in a printed publication.”

Answer: “Respondent Ratner objects on the grounds that this

information is already within the Defendants possession, custody

and control.”

Ruling: While defendant has no need for this answer if it

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already has the information, plaintiff has not shown me that

defendant does have it. Answer the question within ten (10)

business days.

Interrogatory No. 4.

“Please identify all persons with knowledge regarding the

conception and reduction to practice of the invention claimed in

the 152' patent, including the preparation and prosecution of the

152' patent.”

Answer: “Those having knowledge are Seth Ratner, USPTO

Examiner Seifert. Various vendors were consulted, but the

Plaintiff has no recollection of the specifics. With regard to

those aiding in the prosecution of the 152' patent, these details

are privileged, under the work product doctrine.”

Ruling: Why defendant needs this information before

mediation is a totally unexplained mystery. The answer appears

complete and the motion is denied.

Interrogatory No. 5.

“Please identify each person providing information in

response to any of the Interrogatories, stating for each what

information was provided and the particular to which that

information was directed.”

Answer: “Plaintiff Ratner objects on the ground that the

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Interrogatory is unintelligible, vague and ambiguous and the

interrogatory is therefore overly broad, and unduly burdensome

and oppressive. Ratner further objects on the grounds that the

Interrogatory seeks information neither relevant to the subject

matter of the action nor reasonably calculated to lead to

discovery of admissible evidence.”

Ruling: This is another wholly unjustified pre-mediation

question. Nevertheless, since the answer is undoubtedly

“plaintiff” he is to answer it within ten (10) business days.

Interrogatory No. 6.

“Please identify all communications you have had with any

third party regarding the 152' patent or any products that you

believe are within the scope of the 152' patent, including but

not limited to the Accused Products, including the date(s) of

each communication, whether the communication was oral or in

writing, and the identity of all individuals involved.”

Answer: “ Plaintiff Ratner objects on the grounds that the

Interrogatory is unintelligible, vague and ambiguous and the

interrogatory is therefore overly broad, and unduly burdensome

and oppressive. Ratner further objects on the grounds that the

Interrogatory seeks information neither relevant to the subject

matter of the action nor reasonably calculated to lead to

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discovery of admissible evidence Subject to his general and

specific objections and without waiving said objections, and

reserving the right to supplement and to amend his response,

Ratner responds as follows: There were numerous conversations

with Seth Ratner, Cease and Desist letters to Martel, Fluke and

Martel Distributors.” 

Ruling: Motion denied. Incredibly overbroad and with no

showing of relevance. 

Interrogatory No. 7.

“Please identify each and every oral or in writing

infringement opinion, expert opinion, technical opinion, legal

opinion, or prior art search relating the ‘152 patent or the

design covered under the ‘152 patent.”

Answer: “Numerous parties, including Barbara Hulit, Rick

Pirret of the Fluke Corporation, and Seth Ratner. Others are

protected by attorney privilege.”

Ruling: Why this information was necessary before mediation

is a mystery. Defendant has not pointed out any inadequacy in

the answer. Motion denied.

Interrogatory No. 9.

“For your contention that you have suffered and will

continue to suffer damages, please identify your basis for

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determining damages and the amount of such damages, including but

not limited to all alleged lost sales and profits, profit margin,

and lost business relationships and customers.”

Answer: “The confusing appearance of the infringing Martel

product has misled many customers, into believing that the Martel

product and in its Fluke configuration, is the same as the one

produced by East Hills Instruments. Its inferior construction,

and unreliability has blemished the good name of the products

produced by licensee East Hills Instruments, and has limited its

sales and license fees. Whatever sales Martel has had, by using

the 152' patent and by later doing a bait and switch in their

advertising has hurt the sales of the legitimate products. 

Martel has made no attempt to stop its distributors from

continuing to market and promote the infringing product.”

Ruling: At this stage of the case, the answer is sufficient. 

Motion denied.

Interrogatory No. 10.

“Please identify any written or oral assignments, grants,

conveyances, settlement agreements, contracts, business

relationships, or licensing agreements relating to the 152'

patent.”

Answer: “Respondent Ratner objects on the grounds that this

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information is already within the Defendants possession, custody

and control. Subject to his general and specific objections and

without waiving said objections, and reserving the right to

supplement and to amend his response, Ratner responds as follows: 

With regard to other “business relationships”, Plaintiff Ratner

objects on the grounds that the Interrogatory is unintelligible,

vague and ambiguous and the interrogatory is therefore overly

broad, and unduly burdensome and oppressive. Ratner further

objects on the grounds that the Interrogatory seeks information

neither relevant to the subject matter of the action nor

reasonably calculated to lead to discovery of admissible

evidence.”

Ruling: Plaintiff is to answer as to any assignments or

licenses of the patent but the motion is otherwise denied as

overbroad.

Interrogatory No. 11.

“Identify the basis for any claim that you are making that

any of the following design features disclosed in the ‘152 patent

function better than other designs, and explain why each feature

functions better than other designs:

(a) the design of the handle disclosed in the ‘152 patent;

(b) the design of the bump on the handle disclosed in the ‘152

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patent;

(c) the design of the vernier chamber disclosed in the 152

patent;

(d) the design of the bleed valve/vent disclosed in the ‘152

patent;

(e) the design of the guard/shield covering the bleed valve

disclosed in the ‘152 patent;

(f) the design of the shuttle valve disclosed in the ‘152

patent;

(g) the design of the piston chamber disclosed in the 152

patent;

(h) the design of the shaft disclosed in the ‘152 patent;

(i) the design of the return spring disclosed in the ‘152

patent.”

Answer: “The 152' patent is a design patent covering the

ornamental design. Specifics as to the basis of each and every

external, ornamental design element were chosen for its

ornamental appeal. Plaintiff Ratner objects on the grounds that

the Interrogatory is ambiguous and the interrogatory is therefore

overly broad, and unduly burdensome and oppressive. Ratner

further objects on the grounds that the Interrogatory seeks

information neither relevant to the subject matter of the action

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nor reasonably calculated to lead to discovery of admissible

evidence.”

Ruling: Defendant has made no showing of relevance. Motion

denied. 

Document Requests

In one bare-bones paragraph, defendant baldly states that

plaintiff’s document request responses are inadequate as to nos.

1-5, 7-9 and 12-43. “The district court is free to disregard

arguments that are not adequately developed.” Higgins v. New

Balance Athletic Shoe, Inc., 194 F. 3d 252, 260 (1st Cir. 1999). 

Here defendant has not developed any arguments. “It is not the

obligation of this court to research and construct the legal

arguments open to (defendant), especially when (it is)

represented by counsel.” Kouthar SDN BHD v. Sternberg, 149 F. Ed

659, 668 (7th Cir. 1998) (citations omitted, cert. denied, 119

St. Ct. 890). Defendant has made absolutely no showing of

relevance and the court will not do defense counsel’s work for

him.

The motion is denied as to all document requests.

The motion (document no. 69) is denied except as to

interrogatories 3 and 5. The motion is grossly inadequate. If

plaintiff had counsel, fees would be in order under Fed. R. Civ.

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P. 37(d). The parties are to exchange the following information

within ten (10) days and mediate within thirty (30) days in good

faith.

a. Martel to Ratner

1. Copies of all Martel invoices for the pumps in

question, including those contained in “kits” and

also sold with calibrators from October 29, 2007

to present. This would include Fluke sales,

distributor sales, and direct sales.

2. Copies of all vendor invoices and Martel Purchase

orders for the molded pump handles in question.

3. Copies of all Martel invoices to JM Test, and M&M

Controls from October 29, 2007 to present of any

pumps, including those contained in “kits” and

also sold with calibrators.

4. Copies of all Martel web pages containing images

of the pumps in question.

5. A copy of Martel’s product catalog with the pump

in question on the cover.

6. A copy of the vendor’s invoice for printing of the

catalog in number 5.

7. Manufactured cost of the pumps in question and the

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selling prices and distributor discounts.

b. Ratner to Martel

1. USPTO application and correspondence with the

patent office.

2. Settlement documents with Fluke Corporation;

3. Plaintiff’s documents sufficient to show the sales

price, costs and net profit of the MECP 500 and

1000 and the Magnum Pro MVP-600.

The tactic of “running up costs” in this small case will not be

tolerated. Counsel is forewarned.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: February 20, 2009

cc: Cary Ratner, pro se

 Brett A. Schatz, Esq.

 Paul D. Creme, Esq.

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