Ellison/Sizzix Patent Litigation Update

Against the backdrop of those events, four of the patent lawsuits initiated by Ellison in defense of its die patent have also continued throughout April. (To learn more about the background on these lawsuits and the patent they are alleging infringement of, click here.)

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Court proceedings have been quiet in Ellison's case against Stephanie Barnard since early March when a Special Master was appointed by the judge to assist in managing the case. The parties have entered the time-consuming (and expensive) period of litigation involving discovery and other out-of-court preparation for an eventual court trial scheduled for September .

April has been taken up by relatively routine matters in the case between Ellison and Hero Arts. The two companies jointly requested a protective order from the judge to govern the handling of confidential information during the case. That order was granted on April 24th. The two sides have also agreed with the court to a schedule for the case that will lead to a trial in October .

Heartfelt Creations filed a Motion to Dismiss Ellison's case against them on April 24th. The filing claims that Ellison was too vague in their original lawsuit filing, failing to meet a sufficient burden of proof for a claim of infringement because they never pointed to a specific product of Heartfelt's that allegedly infringes under the '325 patent standard. Heartfelt is asking for the lawsuit to be dismissed as a result.

Avery Elle was responsible for the most notable activity in any of Ellison's ongoing lawsuits in April. On April 11th, Avery Elle's lawyers filed a Motion for Sanctions against both Ellison and their lawyers. The motion accuses Ellison of filing a frivolous lawsuit to harass Avery Elle and failing to do a proper investigation before filing. Avery Elle claims that their dies do not infringe the '325 patent because 32% of their dies' flat border extends into the center and the '325 patent describes dies with "none" of the border extending into the center.

The company went a step further in its Motion for Sanctions, however, by claiming that prior art from Spellbinders (a video and an internet archive of their website)  and Quickutz (a circle die) makes the patent itself invalid. Avery Elle also claims that Ellison should have been aware of this art, and concludes, "Ellison and its Attorneys either failed to perform a basic pre-filing investigation or they knowingly brought an objectively baseless lawsuit."

As a result of the claims in its motion, Avery Elle is asking for the court to sanction Ellison and its attorneys by awarding attorney's fees and other costs to them to compensate them for what they call an action that was "frivolous and filed to harass." Attorney's fees being awarded to a successful defendant is not the normal outcome in patent litigation. It's only done when the court rules there has been some egregious behavior by the plaintiff in the course of the suit. (Coincidentally, the industry's previous die patent litigation ended this way, with Spellbinders ordered to pay attorney's fees to Quickutz.)

Ellison filed its response to the Motion for Sanctions on April 29th. To defend their lawsuit, they presented some interpretations of both the word "none" and the first claim in the patent to the court.

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The original patent application demonstrated the die construction with "none" of the cutting edge extending into the center of the die with this art:

I have a Cricut and a Big shot and I find both are invaluable for different reasons. I started with a just a Cricut a couple years ago. Shortly after getting my Cricut, I discovered embossing folders, which you can't do on a Cricut. That led me to getting a Cuttlebug on clearance from Cricut, but didn't realize at the time that it was discontinued (hence the clearance sale, lol). I used it for a while, but got more interested in intricate dies, cover plates, and coordinating dies with stamp sets that the Cuttlebug didn't do very well at cutting without having to add a bunch of shims, etc. It works great for embossing, but lacks in die cutting, especially when not using Cuttlebug specific dies. That led me to upgrade to the Big Shot, which I got on sale with a coupon, etc., so it was a win-win. I found that some intricate dies are just better with a machine like the Big Shot. And sometimes you just want to cut something quickly and don't have the time to fuss with Design Space.

The Cricut is great, but there are just some things the manual die cutting machines are just better at. Also, at the time, using the Cricut to cut out stamped images was cumbersome due to the way the software worked when you scan things in. This was before they had the "offset" function they have now in Design Space, so having a manual machine with the coordinating dies to stamp sets worked better and was faster. It's easier now with Design Space having the "offset" function, but it still takes time to set that up initially when you have a new stamp set. I like having both, as they each have their uses and things they're better at. Cutting paper strips or nesting dies is MUCH faster with a manual machine than it is to set up on Cricut. But Scrapbook.com was right, it really depends on what you want to do with it. Some find one or the other is all they need, some overachievers, like me, love having both options. All I can do is share what works for me :)

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I have a Cricut and a Big shot and I find both are invaluable for different reasons. I started with a just a Cricut a couple years ago. Shortly after getting my Cricut, I discovered embossing folders, which you can't do on a Cricut. That led me to getting a Cuttlebug on clearance from Cricut, but didn't realize at the time that it was discontinued (hence the clearance sale, lol). I used it for a while, but got more interested in intricate dies, cover plates, and coordinating dies with stamp sets that the Cuttlebug didn't do very well at cutting without having to add a bunch of shims, etc. It works great for embossing, but lacks in die cutting, especially when not using Cuttlebug specific dies. That led me to upgrade to the Big Shot, which I got on sale with a coupon, etc., so it was a win-win. I found that some intricate dies are just better with a machine like the Big Shot. And sometimes you just want to cut something quickly and don't have the time to fuss with Design Space.The Cricut is great, but there are just some things the manual die cutting machines are just better at. Also, at the time, using the Cricut to cut out stamped images was cumbersome due to the way the software worked when you scan things in. This was before they had the "offset" function they have now in Design Space, so having a manual machine with the coordinating dies to stamp sets worked better and was faster. It's easier now with Design Space having the "offset" function, but it still takes time to set that up initially when you have a new stamp set. I like having both, as they each have their uses and things they're better at. Cutting paper strips or nesting dies is MUCH faster with a manual machine than it is to set up on Cricut. But Scrapbook.com was right, it really depends on what you want to do with it. Some find one or the other is all they need, some overachievers, like me, love having both options. All I can do is share what works for me :)

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