International Medical Devices, Inc. v. Robert Cornell

Opinion

INTERNATIONAL MEDICAL Case No.: CV 20-03503-CBM (RAOx) DEVICES, INC., et al., Plaintiffs, PRELIMINARY INJUNCTION v. [122] ROBERT CORNELL, MD, et al., Defendants. The Court having granted Plaintiffs’ Motion for a Preliminary Injunction issues the following injunction: 1. Pending the entry of final judgment in this action, Defendants and their officers, directors, agents, servants, and employees, as well as all persons in active concert or participate or in privity with any of them, shall be and hereby are, effectively immediately, enjoined from engaging in any of the following acts: a. Using or disclosing Plaintiffs’ trade secret information, including (1) the design concept for internal pockets or voids of space to increase softness in a cosmetic penile implant; (2) the design concept for use of mesh tabs imbedded in or around the distal tip of a cosmetic penile implant to assist with implantation; (3) the design concept for the use of absorbable sutures in coordination with the mesh tabs imbedded in or around the distal tip of a cosmetic penile implant; and (4) Plaintiffs’ list of surgical instruments and supplies for use during a cosmetic penile implant procedure; b. Commercializing, marketing, advertising, promoting, offering for sale, and/or profiting from the Augmenta implant, U.S. Patent No. 10413413 (“’413 Patent”), and Patent Application No. 16/238,821 (“’821 Application”); c. Referencing, mentioning, promoting, advertising, marketing and/or using the Penuma mark in commerce; d. Acting in a way likely to cause confusion, mistake, or deception on the part of consumers as to the origin or sponsorship of Penuma. 2. Pending the entry of final judgment in this action, Defendants and their officers, directors, agents, servants, and employees, as well as all persons in active concert or participate or in privity with any of them, shall be and hereby are, effectively immediately, ordered to: a. Return to IMD or destroy: (i) Plaintiffs’ list of surgical instruments and supplies for use during a cosmetic penile implant procedure; (ii) any notes taken by Defendant Robert Cornell reflecting his observations from his Penuma training, including the notes attached as Exhibit A to the Declaration of Dr. Robert Cornell in support of Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction. 3. Defendants are hereby ordered to file a declaration including when and how they returned or destroyed Plaintiffs’ list of surgical instruments and supplies and notes taken by Defendant Robert Cornell reflecting his observations that were made during his trainings with Dr. Elist. Said declaration must be filed no later than February 1, 2021. 4. No bond will be required of Plaintiffs at this time since the Court is not ordering Defendants to abandon the ‘821 Application or preventing Defendants from pursuing any pending Food and Drug Administration 510(k) submission, there is no evidence supporting harm to Defendants. “Rule 65(c) invests the district court with discretion as to the amount of security required, if any.” Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009) (internal quotation marks omitted). “[T]he likelihood of success on the merits, as found by the district court, tips in favor of a minimal bond or no bond at all.” 2Die4Kourt v. Hillair Capital Mgmt., LLC, 692 Fed. Appx. 366, 369 (9th Cir. 2017). DATED: January 20, 2021 UNITED STATES DISTRICT JUDGE