Power Survey, LLC v. Premier Utility Services, LLC

61 F. Supp. 3d 477, 2014 U.S. Dist. LEXIS 163288, 2014 WL 6611518
CourtDistrict Court, D. New Jersey
DecidedNovember 21, 2014
DocketCivil Action No. 13-5670(FSH)
StatusPublished
Cited by1 cases

This text of 61 F. Supp. 3d 477 (Power Survey, LLC v. Premier Utility Services, LLC) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Power Survey, LLC v. Premier Utility Services, LLC, 61 F. Supp. 3d 477, 2014 U.S. Dist. LEXIS 163288, 2014 WL 6611518 (D.N.J. 2014).

Opinion

OPINION

HOCHBERG, District Judge.

This matter comes before the Court upon a Motion for a Preliminary Injunction filed by Plaintiff Power Survey, LLC (hereinafter “Power Survey” or “Plaintiff’). The Court has reviewed the submissions of the parties and held an eviden-tiary hearing on the motion on September 4, 2014.

I. BACKGROUND

Power Survey sued Defendant L-3 Communications Holdings, Inc. d/b/a Nar-da Safety Test Solutions (hereinafter “Narda”) and Defendant Premier Utility Services, LLC (hereinafter “Premier” or “Premier Utility”) (collectively, “Defendants”) for patent infringement under the patent laws of the United States, 35 U.S.C. §§ 100 et seq. Power Survey holds three issued patents and has several patents pending in the United States Patent and Trademark Office (USPTO) relating to’ methods and systems for detecting contact or stray voltage (hereinafter “stray voltage”).1 The three patents at issue in this case are: (1) 8,482,274; (2) 8,536,856; and (3) 8,598,864. All three patents were invented by David Kalokitis, Leonard J. Schultz, Christos A. Polyzois, and Vincent Paragano. Power Survey has owned the patents at all relevant times.

Prior to Power Survey’s invention, utility companies manually inspected for stray voltage. This required field technicians with handheld probes to test potentially hazardous structures on foot. Manual detection proved ineffective because it did not detect stray voltage from buried cables, a common source of stray voltage, and it was limited to surfaces directly touched by the probe.

Power Survey increased the effectiveness and increased the efficiency of the process when it developed a vehicle-mounted detection system called the SVD2000. The SVD2000 was designed to locate any stray voltage hazards within an entire geographic region, from a moving vehicle, hence not limited to surfaces it manually contacts. Since its development, the SVD2000 has successfully serviced clients in the United States, Canada, and Europe. Power Survey currently maintains thirty-two SVD2000 systems, eleven of which are typically not in use and thus available to service new business. Power Survey also has five complete sets of SVD2000 hardware available to build an additional five units.

' Narda makes, uses, offers for sale, sells, or imports the Narda Models 8950/10 and 8950/20. The Narda machines are essentially identical to Plaintiffs SVD2000 sys[480]*480tem. Narda’s 8950/10 system is designed to be mounted on a vehicle to perform mobile-stray-voltage detection, and Premier uses the systems to provide mobile-stray-voltage-detection services. Plaintiff alleges that these products infringe their patents-in-suit. Power Survey also alleges that Premier makes, uses, offers for sale, sells, or imports its own Mobile Contact Voltage Detection System that infringes on one or more of its patents.

Power Survey’s core business is mobile contact voltage detection, which comprises essentially all of its revenue. Power Survey has limited its business to providing these services directly to utility companies. Power Survey does not license its- technology and has never sold any of its systems.2

A study conducted by Power Survey compared the Narda 8950/10 with their SVD2000 after Premier conducted a mobile survey using the Narda 8950/10 in Rochester, NY. Premier only detected 40 . energized structures. Power Survey ran a concurrent survey and detected 251 energized structures, some of which were energized at full-line voltage. This represented an 8áfo false negative rate in the Premier/Narda vehicle mounted product. According to a 2012 report by National Testing Systems, an independent testing laboratory, Premier detected only 30 hazards using Narda’s 8950/10 in an area where Power Survey’s SVD2000 detected 230, an 87% false negative rate for Premier/Narda.

Power Survey alleges that it has suffered irreparable harm from Defendants’ infringement that will continue as long as they continue to infringe their patents. Power Survey argues that detecting stray voltage is their only line of work and that Defendants are larger corporations with more diverse product lines, which allows them to provide similar services at a lower cost for the sake of attracting new customers.

Power Survey argues that monetary damages cannot adequately remedy these harms because Defendants’ infringement is preventing it from growing the market. Power Survey claims to have stopped spending money lobbying for the enactment of new regulations requiring mobile contact voltage detection because it felt that doing so would lead to more business for Premier. Power Survey further argues that the use of Narda’s system in the manner used by Defendants, which has been shown to detect less stray voltage, poses serious safety risks. Lastly, Power Survey asks for an injunction because the next round on annual contract bids will be solicited soon.

II. STANDARD OF REVIEW

Federal Circuit law governs the standards for granting an application to preliminarily enjoin alleged patent infringement. See Hybritech, Inc. v. Abbott Labs., 849 F.2d 1446, 1451 n. 12 (Fed.Cir.1988). “The decision to grant or deny ... injunctive relief is an act of equitable discretion by the district court.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). A preliminary injunction is an “extraordinary remedy.” Titan Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1375 (Fed.Cir.2009). “[A]ll findings of fact and conclusions of law at the preliminary injunction stage are subject to change upon the ultimate trial on the merits.” Purdue Pharma L.P. v. Boehringer Ingelheim GmbH, 237 F.3d 1359, 1363 (Fed.Cir.2001).

,A plaintiff seeking a preliminary injunction must establish the following [481]*481four factors: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). To establish an entitlement to this type of relief, a plaintiff must make a “clear showing” of that entitlement. Id. at 22, 129 S.Ct. 365.

III. DISCUSSION

A. Likelihood of Success on the Merits

The likelihood of success on the merits is based on the validity of the patent and the infringement of said patent. Hybritech, Inc. v. Abbott Labs., 849 F.2d 1446, 1451 (Fed.Cir.1988); Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed.Cir.2001).

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61 F. Supp. 3d 477, 2014 U.S. Dist. LEXIS 163288, 2014 WL 6611518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/power-survey-llc-v-premier-utility-services-llc-njd-2014.