Cyclone Usa, Inc. v. Sei Kim

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                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 15 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CYCLONE USA, INC., a Nevada                      No. 10-55735
corporation,
                                                 D.C. No. 2:03-cv-00992-AJW
              Plaintiff-counter-defendant -
Appellee,
                                                 MEMORANDUM *
LL&C DEALER SERVICES, LLC,

              Defendant-counter-claimant -
Appellee,

    v.

SEI KIM, DBA Korean Industrial Design
Company, Erroneously Sued as Korean
Industrial Design Corporation,

             Defendant-counter-claimant-
3rd-party-plaintiff - Appellant,

_____________________________,

  and

JAY KIM,

              Third-party-defendant.



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Appeal from the United States District Court
                       for the Central District of California
                  Andrew J. Wistrich, Magistrate Judge, Presiding

                           Submitted December 8, 2011 **
                               Pasadena, California

Before: NOONAN, GOULD, and IKUTA, Circuit Judges.




      Sei Kim appeals the district court’s award of $500 for a single transaction of

false patent marking by Cyclone USA under 35 U.S.C § 292. On September 16,

2011, Congress amended 35 U.S.C. § 292 and made the amendments retroactive on

pending cases. Leahy-Smith America Invents Act, Pub. L. No. 112-29, § 16(b)(4),

125 Stat. 329 (2011). The penalty under the amended § 292(a) is no longer

available to a private party such as Sei Kim. Instead, § 292(b) now grants Sei Kim

the right to recover damages to compensate for competitive injury due to the false

patent marking. We VACATE and REMAND for a calculation of Cyclone USA’s

liabilities under the amended statute.




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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