Opinion
No. 10-55735 D.C. No. 2:03-cv-00992-AJW
12-15-2011
CYCLONE USA, INC., a Nevada corporation, Plaintiff-counter-defendant -Appellee, 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.
NOT FOR PUBLICATION
MEMORANDUM
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
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
--------
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.