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The manufacturer of the Super Soaker line of water pistols has lost the critical first round of litigation in its patent suit against a relative newcomer in the water pistol market now that a New Jersey federal judge has refused to issue an injunction and declared that the suit is not likely to succeed. In Larami Ltd. v. The Ohio Art Co., U.S. District Judge Joseph E. Irenas found that the design of Ohio Art’s water gun, the A.R.M. 4000XL, is different from the Super Soaker in two key aspects and therefore does not infringe on either of the two patents cited in the suit. Unlike the Super Soaker, which has a canister for water attached to the gun, Irenas found that the 4000XL is designed with a backpack that holds the water. The triggering mechanisms are also different, Irenas found, because the Super Soaker uses pressurized air in its water canister, while the 4000XL does not. Irenas found that Larami was asking the court to read its patent claims too broadly. “By arguing infringement using a broad definition of the claim language, Larami is essentially arguing that its patent covers almost every water gun that could conceivably be designed,” Irenas wrote. “It is hard to imagine how to design a water gun where the trigger would not be at least functionally and indirectly connected to a release valve. What Larami has really patented is a very specific method of assembling what is, in reality, old technology. Ohio Art has put together that same old technology in a different way from Larami and has therefore not ‘read’ onto [the] claim,” Irenas wrote. The ruling is a victory for Ohio Art’s team of lawyers — Richard E. Kurtz, Barbara L. Mullin, Richard B. LeBlanc and Joseph Milowic III of Woodcock Washburn. Larami’s longtime lawyer, Gary A. Rosen, said on Friday that he has already filed a notice of appeal to challenge Irenas’ decision before the U.S. Court of Appeals for the Federal Circuit. Rosen said he believes Irenas erred by imposing an “unduly narrow construction” of the claims in Larami’s two patents. Under Irenas’ analysis, Rosen said, the patents cover only products that have the “exact configuration” of the Super Soaker. Larami, a subsidiary of Hasbro Inc., has dominated the toy water gun market since 1990 when it introduced the Super Soaker line. Super Soakers currently account for about 60 to 80 percent of total sales in the toy water gun market, but Larami claims that sales have been declining as the market has matured and demand for high end water guns has declined. Ohio Art is best-known for its Etch-A-Sketch drawing toy. The 4000XL is a relatively new product that represents the first attempt by Ohio Art to enter the toy water gun market. According to court papers, the 4000XL is designed to allow users to strap the gun onto their arms. “As a result, unlike Larami’s Super Soaker, only one arm is needed to operate the gun,” Irenas noted. The 4000XL also uses a tank to store water that is worn on the user’s back and is similar to a backpack. The tank is connected to a bladder strapped to the user’s bicep that fills when the user flexes his or her arm. Ohio Art’s lawyers argued that the 4000XL does not infringe on Larami’s patents because the Super Soaker’s patent claims call for the gun to have “a water tank connected to said water gun and having an outlet connected to a pump.” The Woodcock lawyers argued that the 4000XL does not infringe on the claim since the claim requires two connections, one to the gun and one to the pump. Irenas found that under settled patent law, “one does not escape infringement by combining into one element what a claim specifies as two, provided that the single element performs the function of both in the same way.” Nonetheless, Irenas found, under the “all elements rule,” a plaintiff alleging infringement must prove that “every element in the claim” can be found in the accused device, either literally or equivalently. Applying that law to the water pistols, Irenas found that the claim in Larami’s patent clearly calls for “two separate connections.” Although the 4000XL does have an outlet connected to a pump, Irenas found that by employing a backpack to store the water, the design differed from the Larami patent. “The reading of the patent implies that the tank also be physically connected to the gun and therefore functionally the connection through the outlet cannot be the same as having the tank be physically connected to the gun,” Irenas wrote.

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