Jessica M. Karmasek Nov. 19, 2014, 11:45am

SAN DIEGO (Legal Newsline) - A California federal court has dismissed patent claims asserted against the maker of artificial wave technology SurfStream and PerfectSwell.


Judge Cynthia Bashant for the U.S. District Court for the Southern District of California issued a six-page order denying Wave Loch Inc. and Light Wave Inc.’s motion for leave to amend their complaint and for leave to amend the preliminary infringement contentions.

Bashant granted American Wave Machines Inc.’s motion for judgment on the pleadings, dismissing with prejudice Wave Loch and Light Wave’s entire patent infringement case against the Solana Beach, Calif., company.


“On the record present in this matter, the Court finds Plaintiffs appear to seek amendment in anticipation of an adverse ruling against them on Defendant’s Motion for Judgment on the Pleadings,” the judge wrote. “Their Opposition to the Motion for Judgment on the Pleadings does not challenge the merits of the dismissal, but only the scope of the justiciable issues under the operative Complaint.


“It therefore appears from the record that Plaintiffs recognize the merits of Defendant’s motion and are seeking to avoid an adverse ruling.”


Bashant continued, “As Plaintiffs admit, the proposed amendments relate to ‘same or extraordinarily similar technology,’ ‘require interpretation and analysis of the same patents already at issue,’ and involve substantial overlapping questions of ‘fact’ and ‘law.’”


The judge questioned the companies’ motives.


“Why, if the technology is ‘the same or extraordinarily similar,’ did Plaintiffs not assert these fifty-one patent claims against the allegedly infringing products in the original Complaint?”


“It appears to the Court that Plaintiffs are attempting, at best, to take a second bite of the apple in the (U.S. Patent and Trademark Office) by asserting previously unasserted and therefore unchallenged provisions of their patents. At worst, Plaintiffs are attempting to prolong frivolous litigation to harass Defendant,” Bashant wrote. “In either scenario, the amendments appear to be undertaken in bad faith.”


The court’s dismissal of the case follows rulings from the PTO canceling all of the patent claims asserted by Wave Loch and Light Wave.


The companies sued AWM in 2008 claiming infringement of three patents -- U.S. Patent Nos. 5,236,280; 5,393,170; and 5,564,859.


The PTO, in its final rejection in 2010, found all of the asserted claims against AWM invalid based on prior art dating back to 1967.


Prior art is information made available to the public in any form before a given date that might be relevant to a patent’s claims of originality.


“Having been deeply involved in the initial engineering and development of the Flow Rider, I knew I could make a demonstrably different and superior stationary wave with our SurfStream system,” said Bruce McFarland, founder and president of American Wave Machines. “As the market is becoming more crowded with sheet flow devices, this ruling clearly shows that SurfStream is a completely different technology that has proven to be safer to ride, more cost-efficient to operate, and with a significantly greater rider capacity and throughput.”


He said the PTO’s ruling is another vindication of AWM’s position.


“It’s unfortunate that the process took longer than anticipated as Wave Loch attempted to deflect an adverse judgment,” McFarland said. “Even with the distraction brought by the litigation, we still grew our business and triumphed in the case.”


Wave Loch could not immediately be reached for comment on the ruling.


From Legal Newsline: Reach Jessica Karmasek by email at

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