IP Litigation

Infringement and Unfair Competition Claim Involving Geotextile Erosion Fabric Soiled by Harness Dickey Litigators

Challenge

Western Excelsior Corporation (Western Excelsior) is a leading manufacturer of Rolled Erosion Control Products and Sediment Control Products with manufacturing facilities in Mancos, Colorado and Macon, Georgia, and corporate offices in Evansville, Indiana. Dedicated to continuous research and development, Western Excelsior products are engineered for performance, manufactured for quality and provided to ensure environmental stewardship and excellent value.

Industry competitor Propex Operating Company, LLC (Propex) accused Western Excelsior of patent infringement, trade dress infringement and unfair competition regarding select Western Excelsior soil erosion fabrics, its composition and weave configuration, method of manufacture and appearance. Facing the inherent threat of a preliminary injunction and after an extensive search for the right litigation team, Western Excelsior retained Harness Dickey as defense counsel.

Solution

Propex was a determined plaintiff, and sought an immediate preliminary injunction, damages with interest and costs (including attorneys’ fees) against Western Excelsior. Millions of dollars were at stake for Western Excelsior, and a swift, effective and aggressive defense of this claim would serve as a requirement for the product’s ultimate survival or demise. A loss at the preliminary injunction phase would result in years of lost revenue for Western Excelsior, as well as the original investment in research and development to create the patented soil erosion fabric.

Our litigation team worked around the clock to prepare for and defeat the preliminary injunction. We defeated Propex’s motion because our litigators effectively demonstrated that the method of manufacture for the accused product was not consistent with that claimed in the asserted patents. Later, at the Markman hearing, our litigators prevailed again on behalf of Western Excelsior on all three claim terms in dispute. As a result, Propex was forced to dismiss its lawsuit with prejudice.

At the onset of the case, our litigation team took the time to understand the economics of Western Excelsior’s lawsuit. We worked with Western Excelsior to identify and set practical business objectives as the basis for our defense strategy. We identified and defined realistic goals based upon what Western Excelsior wanted to achieve in both the industry and in court, as well as what the company was willing to spend to achieve that end. Based on our analysis, we were able to make intelligent decisions regarding a defense that maximized our chances of winning in court, as well as balanced the time and costs associated with such litigation.

Propex Operating Company, LLC v. Western Excelsior Corporation, 2011 WL 310195 (E.D. TN 1/28/11)