Nova BioGenetics Inc. (fka NVBG)

[jurisper]

Filing by Nova et al's attorney in the Emory/Microbe Guard patent infrignement case, which seems to lay out the main points of contact between the two sides (without giving many details):

DECLARATION OF SANFORD J. ASMAN IN SUPPORT OF
DEFENDANTS’ MOTION TO EXTEND TIME TO ANSWER OR
OTHERWISE RESPOND TO THE COMPLAINT
1. I, Sanford J. Asman, am over the age of 21 years, I am competent to
make this affidavit, and I have firsthand knowledge of the facts stated herein.
2. I am an attorney, duly admitted to practice and in good standing before
this honorable Court as well as a Registered Patent Attorney, having been registered
to practice before the U.S. Patent and Trademark Office for over 34 years.
3. I am making the present Declaration in support of defendants’ Motion
to Extend the Time to Answer or Otherwise Respond to the Complaint.
4. On February 8, 2006 I was asked to represent the defendants in the
captioned civil action.
5. Upon making inquiry into the underlying facts, I became aware that the
factual and legal issues presented involved numerous ongoing and prior matters
between the parties hereto as well as other, possibly related parties, an understanding
of which would be required in order to properly represent the defendants.
6. Without going into excessive detail, I learned of:
(a) a prior contractual relationship between the defendants and/or
related or predecessor companies and Emory University which relate to the patents in
suit;
(b) a prior arbitration proceeding involving the defendants and/or
related or predecessor companies and Emory University relating to the patents in
suit;
(c) an ongoing bankruptcy adversary proceeding (captioned In Re
International BioChemical Industries, Inc. Debtor. Herbert C. Broadfoot II,
Trustee v. Nova Biogenetics, Inc., U.S. Bankruptcy Court, Northern District of
Georgia, Atlanta Division, Case No. 04-92814-JB) relating to the technology which
appears to be the subject of the present action;
(d) an ongoing Minnesota case (captioned Microbe Guard, Inc. v.
Timothy C. Moses, Nova BioGenetics, and Nova Specialty Chemicals, Inc., District
Court, State of Minnesota, County of Hennepin, Court File No. 27-CV-06-633)
involving one of the named plaintiffs herein, along with both of the present
defendants; and
(e) a recent collection case (captioned Nova Specialty Chemicals,
Inc., Fulton County State Court, Civil Action No. 05-VS-086702-G) involving
unpaid accounts due from the plaintiff herein, Microbe Guard, Inc., to Nova
Specialty Chemicals, Inc., a company not represented by the undersigned, but related
to defendant Nova Biogentics. I understand that Micro Guard, Inc. defaulted in that
action.
7. I also became aware that the attorneys in the law firm of Needle &
Rosenberg, PC, who represent the plaintiffs herein also acted as the patent attorneys
representing Emory University in prosecuting the patents in suit, and as such they
may be called as witnesses in the present action. However, it has not been possible
for me to obtain copies of the relevant file history of the patents-in-suit in the one
day which I have had to consider the matter.
8. In addition to the prior legal, contractual, and patent issues which
require investigation, it is acknowledged by the attorney for the plaintiffs, Lawrence
K. Nodine, Esq. (in the Civil Cover Sheet accompanying the filing of the Complaint [1] herein) that the present case should be considered “Complex” in that it involves
factual issues which are extremely complex, multiple use of experts, and the
existence of highly technical issues and proof.
9. Finally, on a personal note, my oldest son is engaged to be married next
weekend (on February 19, 2006), and I have had to expend considerable time with
wedding related matters.
10. With the foregoing in mind, and with the expectation of receiving
professional courtesy from the Mr. Nodine, I telephoned him yesterday, explained
the foregoing, and I requested at least a thirty-day extension of time to investigate the
underlying facts and to answer or otherwise respond to the complaint.
11. Rather than agreeing to that seemingly reasonable request, and much to
the surprise of the undersigned, Mr. Nodine refused to discuss any extension of time
unless it was coupled with concessions in the Fulton County State Court matter
identified above, in which plaintiff Microbe Guard has already defaulted, and in
which I do not even represent the plaintiff.
12. In view of the foregoing, I believe that it is necessary for the Court to
intervene and extend sufficient time for the defendants to have an opportunity to
properly investigate the allegations and answer or otherwise respond to the
Complaint herein. 13. Given that many of the documents will have to be retrieved from
storage facilities used by the U.S. Patent and Trademark Office, and due to the fact
that it is presently unknown where other documents relating to the prior contracts
and arbitration proceeding are presently located, I believe that a reasonable
investigation could take sixty or more days to conduct.
I declare under penalty of perjury that all statements made herein of my own
knowledge are true; and all statements made on information and belief are believed
to be true.
Dated: __February 9, 2006__ By:_s/ Sanford J. Asman________
Sanford J. Asman
Georgia Bar No. 026118
Attorney for Defendants
Timothy C. Moses and
Nova Biogenetics, Inc.
Law Office of Sanford J. Asman
570 Vinington Court
Atlanta, GA 30350
Phone : [phone]
Fax : [phone]
E-mail : [e-mail]