Boost Oxygen v. Oxygen Plus - Notice of Docketing

Case: 20-2268 Document: 1-1 Page: 1 Filed: 09/15/2020
UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT
717 MADISON PLACE, N.W.
WASHINGTON, D.C. 20439
PETER R. MARKSTEINER CLERK’S OFFICE

CLERK OF COURT 202-275-8000
September 15, 2020
NOTICE OF DOCKETING
Federal Circuit Docket No.: 2020-2268
Federal Circuit Short Title: Boost Oxygen, LLC v. Oxygen Plus, Inc.
Date of Docketing: September 15, 2020
Originating Tribunal: United States District Court for the District of Minnesota
Originating Case No.: 0:17-cv-05004-PJS-DTS
Appellant: Boost Oxygen, LLC
A notice of appeal has been filed and assigned the above Federal Circuit case number.
The court's official caption is included as an attachment to this notice. Unless otherwise
noted in the court's rules, the assigned docket number and official caption or short title
must be included on all documents filed with this Court. It is the responsibility of all
parties to review the Rules for critical due dates. The assigned deputy clerk is noted
below and all case questions should be directed to the Case Management section at (202)
275-8055.
The following documents are due within 14 days of this notice:
• Entry of Appearance or Notice of Unrepresented Person Appearance. (Fed. Cir. R.

47.3.)
• Certificate of Interest. (Fed. Cir. R. 47.4; not required for unrepresented and
federal government parties unless disclosing information under Fed. Cir. R.
47.4(a)(6))
• Docketing Statement. Note: The Docketing Statement is due in 30 days if the
United States or its officer or agency is a party in the appeal. (Fed. Cir. R. 33.1 and
the Mediation Guidelines; no docketing statement is required in cases with an
unrepresented party)
• Statement Concerning Discrimination in MSPB or arbitrator cases. (Fed. Cir. R.
15(c); completed by petitioner only)
PARTY FILING AND CONTACT INFORMATION: Each counsel representing a party

must be a member of the court's bar and registered for the court's electronic filing
system. Fed. Cir. R. 25(a). Attorneys whose contact information has changed must make
all changes through their PACER service center profile and file an amended Entry of
Appearance.
Unrepresented parties must submit documents intended for filing to the court in paper.
Unrepresented parties changing contact information must submit an amended Notice of
Unrepresented Person Appearance with the new contact information. Unrepresented
parties registered to receive notices of docket activity must also update their PACER
service center profile.
OFFICIAL CAPTION: The court's official caption is attached and reflects the lower
tribunal's caption pursuant to Fed. R. App. P. 12(a), 15(a), and 21(a). Please review the
caption carefully and promptly advise this court in writing of any improper or inaccurate
designations.
/s/ Peter R. Marksteiner

Peter R. Marksteiner
Clerk of Court
By: E. Dumont, Deputy Clerk
Attachments:
• Official caption
• Paper Copies of General Information and Forms (to unrepresented parties only):
o General Information and Overview of a Case in the Federal Circuit
o Notice of Unrepresented Person Appearance
o Informal Brief
o Informal Reply Brief (to be completed only after receiving the opposing
party's response brief)
o Motion and Affidavit for Leave to Proceed in Forma Pauperis (only to filers
owing the docketing fee)
o Supplemental in Forma Pauperis Form for Prisoners (only to filers in a
correctional institution)
o Statement Concerning Discrimination (only to petitioners in MSPB or
arbitrator case)
cc: United States District Court for the District of Minnesota

Official Caption
BOOST OXYGEN, LLC,

Plaintiff-Appellant
v.
OXYGEN PLUS, INC.,

Defendant-Appellee
Short Caption
Boost Oxygen, LLC v. Oxygen Plus, Inc.

CASECase: 20-2268 Document:
0:17-cv-05004-PJS-DTS 1-2 Page:
Document 1 Filed:
91 Filed 09/15/2020
09/08/20 Page 1 of 2
UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
BOOST OXYGEN, LLC, Case No. 0:17-cv-05004-PJS-SER

Plaintiff,
v.
NOTICE OF APPEAL
OXYGEN PLUS, Inc.
Defendant.
NOTICE IS HEREBY GIVEN that pursuant to Rules 3 and 4 of the Federal Rules
of Appellate Procedure, Boost Oxygen, LLC (“Boost”), plaintiff in the above-captioned
case, hereby appeals to the United States Court of Appeals for the Federal Circuit from the
Order dated August 10, 2020 denying Boost’s motion to hold Oxygen Plus, Inc. (“O+”) in
contempt (ECF No. 90) for violating the Court approved Settlement and Consent Judgment
dated May 14, 2018 (ECF 28) and all prior orders affecting the denial of Boost’s motion
for contempt, including but not limited to, Boost’s initial motion to enforce the consent
judgment (ECF 29), the order denying that motion as moot, (ECF 45), the transcript from
the hearing on Boost’s initial motion to enforce the consent judgment, (ECF 52), and the
letter from the Court dated June 17, 2019, (ECF 55).
Dated: September 8, 2020. By: /s/Barry M. Landy

Barry M. Landy (MN #0391307)
Ciresi Conlin LLP
225 South 6th Street, Suite 4600
Minneapolis, MN 55402
Telephone: 612-361-8200
Email: BML@ciresiconlin.com
Robert Neuner
Hoffmann & Baron LLP
6 Campus Drive
Parsippany, New Jersey 07054
Telephone: 973-331-1700
0:17-cv-05004-PJS-DTS 1-2 Page:
Document 2 Filed:
91 Filed 09/15/2020
09/08/20 Page 2 of 2
Facsimile: 973-331-1717
E-mail: rneuner@hbiplaw.com
Attorneys for Plaintiff Boost Oxygen, LLC


District of Minnesota
Warren E. Burger Federal Diana E. Murphy U.S. Gerald W. Heaney Federal Edward J. Devitt U.S.
Building and U.S. Courthouse Building and U.S. Courthouse and
Courthouse 300 South Fourth Street Courthouse Federal Building
316 North Robert Street Suite 202 515 West First Street 118 South Mill Street
Suite 100 Minneapolis, MN 55415 Suite 417 Suite 212
St. Paul, MN 55101 (612) 664-5000 Duluth, MN 55802 Fergus Falls, MN
(651) 848-1100 (218) 529-3500 56537
(218) 739-5758
September 9, 2020
Court of Appeals for the Federal Circuit

National Courts Building
717 Madison Place NW, Room 401
Washington, DC 20439
RE: Federal Circuit Appeal Information Sheet

District Court Civil Case No: 17-cv-05004-PJS-DTS
Federal Circuit Case No: Not Yet Assigned
Case Caption: Boost Oxygen, LLC v. Oxygen Plus, Inc.
Enclosed, please find one PDF copy of each of the following:

Notice of Appeal
Pleading being appealed
Docket Entries: [90], [91]
Other: Docket Sheet
Sincerely,
Kate M. Fogarty, Clerk
FEDERAL CIRCUIT APPEAL INFORMATION SHEET
Case Title: Boost Oxygen, LLC v. Oxygen Plus, Inc.

Type of Case: Civil/Patent Infringement
Parties:
Boost Oxygen, LLC – Plaintiff
Oxygen Plus, Inc. - Defendant
(List all parties. Use an asterisk to indicate dismissed or withdrawn parties. Use a separate sheet
if needed. Explain any discrepancy with the caption used on the judgment, order or opinion.)
Docket No.: 91
Date of Judgment/Order: 8/10/2020
Date of Notice of Appeal: 9/8/2020
Cross or related appeal? n/a
Appellant is: X Plaintiff Defendant Other
FEES: Court of Appeals docket fee paid? X Yes No
Receipt Number: AMNDC-8035061

U.S. Appeal? Yes X No
In forma pauperis? Yes X No
Is this matter under seal? Yes X No
Was a court reporter utilized? XX Yes
Court Reporter Name and Telephone Number:
Debra Beauvais – 612-664-5102

CM/ECF - District of Minnesota - Live https://mnd-ecf.sso.dcn/cgi-bin/DktRpt.pl?402003975930119-L_1_0-1
APPEAL,CLOSED,CV,PATENT,PROTO
U.S. District Court

U.S. District of Minnesota (DMN)
CIVIL DOCKET FOR CASE #: 0:17-cv-05004-PJS-DTS
Internal Use Only
Boost Oxygen, LLC v. Oxygen Plus, Inc. Date Filed: 11/03/2017

Assigned to: Judge Patrick J. Schiltz Date Terminated: 05/15/2018
Referred to: Magistrate Judge David T. Schultz Jury Demand: Plaintiff
Cause: 35:271 Patent Infringement Nature of Suit: 830 Patent
Jurisdiction: Federal Question
Plaintiff
Boost Oxygen, LLC represented by Barry M Landy
a Connecticut Limited Liability Company Ciresi Conlin LLP
225 S. 6th Street
Suite 4600
612-361-8224
Email: BML@ciresiconlin.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Esther Agbaje
Ciresi Conlin LLP
225 South Sixth Street
Suite 4600
612-361-8200
Email: eoa@ciresiconlin.com
LEAD ATTORNEY
Jan M Conlin
Ciresi Conlin LLP
225 South Siixth Street, Suite 4600
Mpls, MN 55402
612-361-8200
Email: JMC@CiresiConlin.com
LEAD ATTORNEY
Robert Neuner
Hoffmann & Baron, LLP
6 Campus Drive
Parsippany, NJ 07054
973-331-1700
1 of 10 9/9/2020, 3:30 PM
Fax: 973-331-1717
Email: agehring@hbiplaw.com
LEAD ATTORNEY
V.
Defendant
Oxygen Plus, Inc. represented by Brian A Dillon
a Minnesota Corporation Lathrop GPM LLP
80 S 8th St
Ste 500 IDS Center
612-632-3000
Email: brian.dillon@lathropgpm.com
LEAD ATTORNEY
David George Johnson , I

David George Johnson
44-118 Ikeanani Drive
Kaneohe, HI 96744
808-936-4289
Email: wb4jtt@yahoo.com
LEAD ATTORNEY
Dion Farganis
Lathrop GPM LLP
80 S 8th St
Ste 500 IDS Center
612-632-3471
Fax: 612-632-4471
Email: dion.farganis@lathropgpm.com
LEAD ATTORNEY
Loren L Hansen
Lathrop GPM LLP
80 S 8th St
Ste 500 IDS Center
612-632-3000
Email: loren.hansen@lathropgpm.com
LEAD ATTORNEY
2 of 10 9/9/2020, 3:30 PM
Date Filed # Docket Text

11/03/2017 1 COMPLAINT against Oxygen Plus, Inc. (filing fee $ 400, receipt number
AMNDC-5799109) filed by Boost Oxygen, LLC. No summons requested.
(Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3, # 4 Exhibit(s)
4, # 5 Exhibit(s) 5, # 6 Civil Cover Sheet) (Conlin, Jan) (Entered: 11/03/2017)
11/03/2017 2 NOTICE of Appearance by Jan M Conlin on behalf of Boost Oxygen, LLC.
(Conlin, Jan) (Entered: 11/03/2017)
11/03/2017 3 TEXT ONLY ENTRY: CLERK'S NOTICE OF INITIAL CASE ASSIGNMENT.
Case assigned to Judge Patrick J. Schiltz per 3rd, 4th - Patent list, referred to
Magistrate Judge Steven E. Rau. Please use case number 17-cv-5004 PJS/SER.
(LPH) (Entered: 11/03/2017)
11/03/2017 (Court only) ***Set Patent flag. (LPH) (Entered: 11/03/2017)
11/03/2017 4 NOTICE of Appearance by Barry M Landy on behalf of Boost Oxygen, LLC.

(Landy, Barry) (Entered: 11/03/2017)
11/06/2017 5 TEXT ONLY ENTRY: Notice re: Non-Admitted Attorney
We have received documents listing Robert Neuner as counsel of record. If he

or she wishes to be listed as an attorney of record in this case, he or she must be
admitted to the bar of the U.S. District Court of Minnesota in accordance with
Local Rule 83.5 (a), (b) and (c) or temporarily admitted pro hac vice in
accordance with Local Rule 83.5 (d) or (e).
For more admissions information and forms, please see the Attorney Forms
Section of the courts website at href=http://www.mnd.uscourts.gov/FORMS
/court_forms.shtml#attorneyforms. (lmb) (Entered: 11/06/2017)
11/07/2017 6 MOTION for Admission Pro Hac Vice for Attorney Robert Neuner. Filing fee $
100, receipt number AMNDC-5803190 filed by Boost Oxygen, LLC. (Landy,
Barry) (Entered: 11/07/2017)
11/07/2017 (Court only) ***Staff Note. REFUND as to 1 Complaint, filed by Boost Oxygen,
LLC due to Duplicate Payment Made per Michael Vicklund. Refund issued to
attorney Jan M Conlin. Pay.gov transaction reference number AMNDC-5799053.
(MGV) (Entered: 11/07/2017)
11/08/2017 7 TEXT ONLY ENTRY: ORDER granting 6 Motion for Admission Pro Hac Vice
of Attorney Robert Neuner for Boost Oxygen, LLC. Approved by Magistrate
Judge Steven E. Rau on 11/8/17. (AKL) (Entered: 11/08/2017)
11/15/2017 8 RULE 7.1 DISCLOSURE STATEMENT. There is no parent corporation,
publicly held corporation or wholly-owned subsidiary to report for Plaintiff
Boost Oxygen, LLC. (Landy, Barry) (Entered: 11/15/2017)
11/21/2017 9 TEXT ONLY ENTRY: Request to Clerk's Office to Issue Summons for Oxygen
Plus, Inc. Boost Oxygen, LLC. (Landy, Barry) (Entered: 11/21/2017)
11/21/2017 10 Summons Issued as to Oxygen Plus, Inc. (lmb) (Entered: 11/21/2017)
3 of 10 9/9/2020, 3:30 PM
11/27/2017 11 DOCUMENT FILED IN ERROR-INCORRECT EVENT-WILL REFILE.

AFFIDAVIT of Service by Boost Oxygen, LLC re 10 Summons Issued, 1
Complaint. (Landy, Barry) Modified text on 11/28/2017 (lmb). (Entered:
11/27/2017)
11/28/2017 12 SUMMONS Returned Executed by Boost Oxygen, LLC. Boost Oxygen, LLC
served on 11/22/2017, answer due 12/13/2017. (Landy, Barry) (Entered:
11/28/2017)
11/28/2017 13 NOTICE of Appearance by David George Johnson, I on behalf of Oxygen Plus,
Inc.. (Johnson, David) (Entered: 11/28/2017)
11/29/2017 14 RULE 7.1 DISCLOSURE STATEMENT. There is no parent corporation,
publicly held corporation or wholly-owned subsidiary to report for Defendant
Oxygen Plus, Inc.. (Johnson, David) (Entered: 11/29/2017)
12/04/2017 15 ANSWER to Complaint filed by Oxygen Plus, Inc.. (Attachments: # 1 Exhibit(s)
DES. 389,238) (Johnson, David) (Entered: 12/04/2017)
12/15/2017 16 ORDER/NOTICE OF PRETRIAL SCHEDULING CONFERENCE: Pretrial
Conference set for 1/18/2018 09:00 AM in Courtroom 3A (STP) before
Magistrate Judge Steven E. Rau. Signed by Magistrate Judge Steven E. Rau on
12/15/17. (Attachments: # 1 Consent Form)(LPH) (Entered: 12/15/2017)
01/03/2018 17 NOTICE OF ATTORNEY APPEARANCE/SUBSTITUTION for Boost Oxygen,
LLC. (Agbaje, Esther) (Entered: 01/03/2018)
01/03/2018 (Court only) *** Attorney Esther Agbaje for Boost Oxygen, LLC added. (lmb)
(Entered: 01/03/2018)
01/11/2018 18 REPORT of Rule 26(f) Planning Meeting. Filed by Boost Oxygen, LLC. Jointly
Signed by Oxygen Plus, Inc..(Agbaje, Esther) (Entered: 01/11/2018)
01/17/2018 19 STIPULATION of Protective Order by Boost Oxygen, LLC. Jointly Signed by
Oxygen Plus, Inc.. (Agbaje, Esther) (Entered: 01/17/2018)
01/17/2018 20 PROPOSED ORDER TO JUDGE re 19 Stipulation. (Agbaje, Esther) (Entered:
01/17/2018)
01/18/2018 21 ORDER re 19 Stipulation. Signed by Magistrate Judge Steven E. Rau on
1/18/18. (LPH) (Entered: 01/18/2018)
01/18/2018 22 Minute Entry for proceedings held before Magistrate Judge Steven E. Rau: Initial
Pretrial Conference held on 1/18/2018. Order to issue. (LPH) (Entered:
01/18/2018)
01/24/2018 23 PRETRIAL SCHEDULING ORDER: Amended Pleadings due by 3/1/2018.
Discovery due by 6/30/2018. Motions (non-disp) due 3/15/2018. Motions (disp)
due by 12/30/2018. Ready for trial due by 4/30/2019. Signed by Magistrate
Judge Steven E. Rau on 1/24/18. (LPH) (Entered: 01/24/2018)
03/01/2018 24 STATUS REPORT (Joint) Regarding Settlement by Boost Oxygen, LLC. (Landy,
03/15/2018 25 ORDER/NOTICE of Setting: Confidential Letter to Court due by 5/3/2018.
Settlement Conference set for 5/10/2018 at 09:00 AM in Courtroom 3A (STP)
before Magistrate Judge Steven E. Rau. Signed by Magistrate Judge Steven E.
4 of 10 9/9/2020, 3:30 PM
Rau on 3/15/2018. (MME) (Entered: 03/15/2018)

05/08/2018 26 LETTER TO MAGISTRATE JUDGE by Boost Oxygen, LLC Cancellation of
Settlement Conference. (Agbaje, Esther) (Entered: 05/08/2018)
05/09/2018 27 (Text-only) NOTICE of CANCELLATION of Hearing: Settlement Conference
set for 5/10/2018 is CANCELED. (MME) (Entered: 05/09/2018)
05/15/2018 28 SETTLEMENT AND CONSENT JUDGMENT. Signed by Judge Patrick J.
Schiltz on 5/15/2018. (CLG) (Entered: 05/15/2018)
03/27/2019 29 MOTION to Approve Consent Judgment and Enforce Settlement filed by Boost
Oxygen, LLC. (Agbaje, Esther) (Entered: 03/27/2019)
03/27/2019 30 MEMORANDUM in Support re 29 MOTION to Approve Consent Judgment
and Enforce Settlement filed by Boost Oxygen, LLC. (Attachments: # 1
LR7.1/LR72.2 Word Count Compliance Certificate Certificate of Compliance)
(Agbaje, Esther) (Entered: 03/27/2019)
03/27/2019 31 Declaration of Robert C. Neuner in Support of 29 MOTION to Approve Consent
Judgment and Enforce Settlement filed by Boost Oxygen, LLC. (Attachments: #
1 Exhibit(s) Promotion photograph of oxygen canister, # 2 Exhibit(s) Promotion
photograph of Biggi oxygen canister, # 3 Exhibit(s) Gehring email 01.07.19, # 4
Exhibit(s) Johnson email 01.11.19, # 5 Exhibit(s) Gehring email 01.14.19)
03/27/2019 32 MEET and CONFER STATEMENT re 29 Motion to Approve Consent Judgment
filed by Boost Oxygen, LLC.(Agbaje, Esther) (Entered: 03/27/2019)
03/27/2019 33 NOTICE OF HEARING ON MOTION 29 MOTION to Approve Consent
Judgment and Enforce Settlement: Motion Hearing set for 5/8/2019 at 08:30 AM
in Courtroom 14E (MPLS) before Judge Patrick J. Schiltz. (Agbaje, Esther)
Modified hearing location/text on 3/28/2019 (lmb). (Entered: 03/27/2019)
03/27/2019 34 MEMORANDUM in Support re 29 MOTION to Approve Consent Judgment
and Enforce Settlement filed by Boost Oxygen, LLC. (Attachments: # 1
Exhibit(s) Settlement and Consent Judgment, # 2 LR7.1/LR72.2 Word Count
Compliance Certificate Certificate of Compliance)(Agbaje, Esther) (Entered:
03/27/2019)
03/27/2019 35 PROPOSED ORDER TO JUDGE re Plaintiff's Motion to Enforce Settlement
and Consent Judgment. (Agbaje, Esther) (Entered: 03/27/2019)
03/28/2019 (Court only) *** Set/Reset Deadlines as to 29 MOTION to Approve Consent
Judgment and Enforce Settlement. Motion Hearing set for 5/8/2019 at 08:30 AM
in Courtroom 14E (MPLS) before Judge Patrick J. Schiltz. (lmb) (Entered:
03/28/2019)
04/11/2019 36 RESPONSE in Opposition re 29 MOTION to Approve Consent Judgment and
Enforce Settlement filed by Oxygen Plus, Inc.. (Attachments: # 1 LR7.1/LR72.2
Word Count Compliance Certificate)(Johnson, David) (Entered: 04/11/2019)
04/11/2019 37 Reply to Response to Motion re 29 MOTION to Approve Consent Judgment and
Enforce Settlement filed by Oxygen Plus, Inc.. (Attachments: # 1 Exhibit(s), # 2
Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s))(Johnson, David)
(Entered: 04/11/2019)
5 of 10 9/9/2020, 3:30 PM
04/11/2019 38 AFFIDAVIT of LAUREN CARLSTROM in OPPOSITION TO 29 MOTION to

Approve Consent Judgment and Enforce Settlement filed by Oxygen Plus,
Inc..(Johnson, David) (Entered: 04/11/2019)
04/11/2019 39 MEMORANDUM in Opposition re 29 MOTION to Approve Consent Judgment
and Enforce Settlement filed by Oxygen Plus, Inc.. (Attachments: # 1
LR7.1/LR72.2 Word Count Compliance Certificate)(Johnson, David) (Entered:
04/11/2019)
04/11/2019 40 AFFIDAVIT of CHRISTINE WARREN in OPPOSITION TO 29 MOTION to
Approve Consent Judgment and Enforce Settlement filed by Oxygen Plus, Inc..
(Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5
Exhibit(s))(Johnson, David) (Entered: 04/11/2019)
04/25/2019 41 REPLY re 39 Memorandum in Opposition to Motion to Enforce Settlement and
Consent Judgment filed by Boost Oxygen, LLC. (Attachments: # 1
LR7.1/LR72.2 Word Count Compliance Certificate)(Agbaje, Esther) (Entered:
04/25/2019)
04/25/2019 42 DECLARATION of Karen Fortunato by Boost Oxygen, LLC . (Attachments: # 1
Exhibit(s) Order Summary, # 2 Exhibit(s) Photograph of Canister Top, # 3
Exhibit(s) Photograph of Top of Canister, # 4 Exhibit(s) Photograph of Canister,
# 5 Exhibit(s) Photograph of Canister Instructions)(Agbaje, Esther) (Entered:
04/25/2019)
05/01/2019 43 NOTICE of Appearance by Loren L Hansen on behalf of Oxygen Plus, Inc..
(Hansen, Loren) (Entered: 05/01/2019)
05/01/2019 44 NOTICE of Appearance by Brian A Dillon on behalf of Oxygen Plus, Inc..
(Dillon, Brian) (Entered: 05/01/2019)
05/08/2019 45 ORDER denying as moot 29 Motion to Approve Consent Judgment. Signed by
Judge Patrick J. Schiltz on 5/8/2019. (CLG) (Entered: 05/08/2019)
05/08/2019 46 Minute Entry for proceedings held before Judge Patrick J. Schiltz: Motion
Hearing held on 5/8/2019 re 29 MOTION to Approve Consent Judgment and
Enforce Settlement filed by Boost Oxygen, LLC. Written order issued. (Court
Reporter Debra Beauvais) (CLG) (Entered: 05/08/2019)
05/14/2019 47 TRANSCRIPT REQUEST for an Expedited 14-Day Transcript of 46 Motion
Hearing, to Court Reporter Debra Beauvais. (Hansen, Loren) (Entered:
05/14/2019)
05/15/2019 48 TRANSCRIPT REQUEST for a COPY OF TRANSCRIPT 46 Motion Hearing,
to Court Reporter Debra Beauvais. (Agbaje, Esther) (Entered: 05/15/2019)
05/15/2019 49 (Text-only) ORDER/NOTICE OF SETTLEMENT CONFERENCE: Settlement
Conference set for 5/24/2019 at 09:00 AM in Courtroom 3C (STP) before
Magistrate Judge Steven E. Rau. Ordered by Magistrate Judge Steven E. Rau on
5/15/2019. (MME) (Entered: 05/15/2019)
6 of 10 9/9/2020, 3:30 PM
05/16/2019 50 (Text-only) ORDER FOR PARTY TO FILE DOCUMENT/RESPOND TO

COURT re 49 Order/Notice of Setting/Resetting Hearings/Deadlines.
Confidential Letter to Court due by 5/22/2019 pursuant to the Order/Notice of
Settlement Conference [Doc. No. 25 ] Ordered by Magistrate Judge Steven E.
Rau on 5/16/2019. (MME) (Entered: 05/16/2019)
05/20/2019 51 NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated
with it. (DKB) (Entered: 05/20/2019)
05/20/2019 52 TRANSCRIPT of Motions Hearing held on 5/8/19 before Judge Patrick J.
Schiltz. (22 pages). Court Reporter: Debra Beauvais. For a copy of the transcript,
please file a Transcript Request under Other Filings/Other Documents.
For information on redaction procedures, please review Local Rule 5.5.

Redaction Request due 6/10/2019. Redacted Transcript Deadline set for
6/20/2019. Release of Transcript Restriction set for 8/19/2019. (DKB) (Entered:
05/20/2019)
05/20/2019 (Court only) ***Staff notes - Transcript fee paid by Esther Agbaje, Loren L
Hansen. Electronic access to transcript 52 granted during the 90-day restriction
period. (DKB) (Entered: 05/20/2019)
05/24/2019 53 Minute Entry for proceedings held before Magistrate Judge Steven E. Rau:
Settlement Conference held on 5/24/2019. No settlement reached. (GFK)
(Entered: 05/24/2019)
06/13/2019 54 LETTER TO DISTRICT JUDGE by Boost Oxygen, LLC . (Attachments: # 1
Exhibit(s) Exhibit A, # 2 Exhibit(s) Exhibit B, # 3 Exhibit(s) Exhibit C)(Agbaje,
Esther) (Entered: 06/13/2019)
06/17/2019 55 LETTER from Judge Patrick J. Schiltz. (CLG) (Entered: 06/17/2019)
07/10/2019 56 REPORT of Rule 26(f) Planning Meeting. Filed. (Agbaje, Esther) (Entered:
07/10/2019)
07/23/2019 57 NOTICE of Appearance by Dion Farganis on behalf of All Defendants.
(Farganis, Dion) (Entered: 07/23/2019)
07/23/2019 58 STIPULATION Joint Stipulation for Production of Electronically Stored
Information by Boost Oxygen, LLC. Jointly signed by Oxygen Plus, Inc..
(Agbaje, Esther) Modified text on 7/24/2019 (MMG). (Entered: 07/23/2019)
07/23/2019 59 STIPULATION of Protective Order by Boost Oxygen, LLC. Jointly signed by
Oxygen Plus, Inc..(Agbaje, Esther) Modified text on 7/24/2019 (MMG).
(Entered: 07/23/2019)
07/23/2019 60 PROPOSED ORDER TO JUDGE re 58 Stipulation. (Agbaje, Esther) (Entered:
07/23/2019)
07/23/2019 61 PROPOSED ORDER TO JUDGE re Stipulation of Protective Order 59
Stipulation. (Agbaje, Esther) (Entered: 07/23/2019)
07/25/2019 62 SCHEDULING ORDER: Fact Discovery due by 10/31/2019. Expert Discovery
due by 11/30/2019. Motions (non-disp) due 12/31/2019. Motions (disp) due by
1/31/2020. Ready for trial due by 5/31/2020. Signed by Magistrate Judge Steven
7 of 10 9/9/2020, 3:30 PM
E. Rau on 7/25/2019. (MME) (Entered: 07/25/2019)

07/25/2019 63 PROTECTIVE ORDER. Signed by Magistrate Judge Steven E. Rau on
7/25/2019. (MME) (Entered: 07/25/2019)
07/25/2019 64 ORDER on 58 Stipulation. See order for details. Signed by Magistrate Judge
Steven E. Rau on 7/25/2019. (MME) (Entered: 07/25/2019)
08/19/2019 (Court only) *** Terminate Transcript Deadlines for 52 Transcript. (lmb)
(Entered: 08/19/2019)
09/26/2019 65 Joint MOTION to Alter/Amend/Correct Other Orders 62 Scheduling Order, filed
by Boost Oxygen, LLC. (Agbaje, Esther) (Entered: 09/26/2019)
09/26/2019 66 PROPOSED ORDER TO JUDGE re 65 Motion to Alter/Amend/Correct Other
Orders. (Agbaje, Esther) (Entered: 09/26/2019)
09/26/2019 67 NOTICE OF HEARING ON MOTION Jointly to Amend the Scheduling Order
09/26/2019 68 MEET and CONFER STATEMENT re 65 Motion to Alter/Amend/Correct Other
Orders filed by Boost Oxygen, LLC.(Agbaje, Esther) (Entered: 09/26/2019)
10/01/2019 69 TEXT ONLY ORDER granting 65 Motion to Alter/Amend/Correct Other
Orders. An Amended Pretrial Scheduling Order will be filed separately. Signed
by Magistrate Judge Steven E. Rau on 10/1/2019. (MME) (Entered: 10/01/2019)
10/01/2019 70 AMENDED SCHEDULING ORDER: Fact Discovery due by 10/31/2019.
Expert Discovery due by 1/10/2020. Motions (non-disp) due 11/22/2019.
Motions (disp) due by 2/28/2020. Ready for trial due by 5/31/2020. Signed by
Magistrate Judge Steven E. Rau on 10/1/2019. (MME) (Entered: 10/01/2019)
01/08/2020 71 NOTICE by Oxygen Plus, Inc. Notice of Change of Email Address and Firm
Name (Hansen, Loren) (Entered: 01/08/2020)
01/17/2020 72 MOTION for Contempt of Court filed by Boost Oxygen, LLC. (Landy, Barry)
(Entered: 01/17/2020)
01/17/2020 73 NOTICE OF HEARING ON MOTION 72 MOTION for Contempt of Court : to
Enforce Settlement and Consent Judgment Motion Hearing set for 3/2/2020 at
08:30 AM in Courtroom 14E (MPLS) before Judge Patrick J. Schiltz. (Landy,
01/17/2020 74 SEALED MEMORANDUM in Support re 72 MOTION for Contempt of Court
filed by Boost Oxygen, Inc.. (Attachments: # 1 LR7.1/LR72.2 Word Count
Compliance Certificate)(Landy, Barry) (Entered: 01/17/2020)
01/17/2020 75 Redacted Document for 74 to Enforce Settlement and Consent Judgment filed by
Boost Oxygen, LLC. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance
Certificate)(Landy, Barry) (Entered: 01/17/2020)
01/17/2020 76 DOCUMENT FILED IN ERROR. WILL REFILE. SEALED EXHIBIT S re 72
MOTION for Contempt of Court filed by Boost Oxygen, LLC. (Attachments: # 1
Exhibit(s) Exhibit A, # 2 Exhibit(s) Sealed Exhibit B, # 3 Exhibit(s) Exhibit C, #
4 Exhibit(s) Sealed Exhibit D, # 5 Exhibit(s) Sealed Exhibit E, # 6 Exhibit(s)
Exhibit F, # 7 Exhibit(s) Exhibit G, # 8 Exhibit(s) Exhibit H, # 9 Exhibit(s)
Exhibit I, # 10 Exhibit(s) Sealed Exhibit J, # 11 Exhibit(s) Sealed Exhibit K, # 12
8 of 10 9/9/2020, 3:30 PM
Exhibit(s) Sealed Exhibit L, # 13 Exhibit(s) Sealed Exhibit M, # 14 Exhibit(s)

Exhibit N, # 15 Exhibit(s) Sealed Exhibit O, # 16 Exhibit(s) Exhibit P, # 17
Exhibit(s) Sealed Exhibit Q, # 18 Exhibit(s) Sealed Exhibit R, # 19 Exhibit(s)
Sealed Exhibit S, # 20 Exhibit(s) Sealed Exhibit T, # 21 Exhibit(s) Exhibit U, #
22 Exhibit(s) Exhibit V)(Landy, Barry) Modified text on 1/17/2020 (CLK).
(Entered: 01/17/2020)
01/17/2020 77 MEET and CONFER STATEMENT re 72 Motion for Contempt filed by Boost
Oxygen, LLC.(Landy, Barry) (Entered: 01/17/2020)
01/17/2020 78 PROPOSED ORDER TO JUDGE re Plaintiff's Motion to Enforce Settlement
and Consent Judgment 72 Motion for Contempt. (Landy, Barry) (Entered:
01/17/2020)
01/17/2020 79 Declaration of Barry M. Landy in Support of 72 MOTION for Contempt of
Court filed by Boost Oxygen, LLC. (Attachments: # 1 Exhibit(s) Exhibit A, # 2
Exhibit(s) Exhibit C, # 3 Exhibit(s) Exhibit F, # 4 Exhibit(s) Exhibit G, # 5
Exhibit(s) Exhibit H, # 6 Exhibit(s) Exhibit I, # 7 Exhibit(s) Exhibit N, # 8
Exhibit(s) Exhibit U, # 9 Exhibit(s) Exhibit V)(Landy, Barry) (Entered:
01/17/2020)
01/17/2020 80 SEALED EXHIBIT Exhibit B re 79 Declaration of Barry M. Landy filed by
Boost Oxygen, LLC. (Attachments: # 1 Exhibit(s) Exhibit D, # 2 Exhibit(s)
Exhibit E, # 3 Exhibit(s) Exhibit J, # 4 Exhibit(s) Exhibit K, # 5 Exhibit(s)
Exhibit L, # 6 Exhibit(s) Exhibit M, # 7 Exhibit(s) Exhibit O, # 8 Exhibit(s)
Exhibit Q, # 9 Exhibit(s) Exhibit R, # 10 Exhibit(s) Exhibit S, # 11 Exhibit(s)
Exhibit T)(Landy, Barry) Modified text on 1/17/2020 (MKB). (Entered:
01/17/2020)
01/17/2020 81 EXHIBIT Exhibit P re 79 Declaration in Support, filed by Boost Oxygen,
LLC.(Landy, Barry) (Entered: 01/17/2020)
02/07/2020 82 MEMORANDUM in Opposition re 72 MOTION for Contempt of Court filed by
Oxygen Plus, Inc.. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance
Certificate)(Farganis, Dion) (Entered: 02/07/2020)
02/07/2020 83 DECLARATION of Dion Farganis in Opposition to 72 MOTION for Contempt
of Court filed by Oxygen Plus, Inc.. (Attachments: # 1 Exhibit(s) A-E)(Farganis,
Dion) (Entered: 02/07/2020)
02/21/2020 84 Reply to Response to Motion re 72 MOTION for Contempt of Court to Enforce
Settlement and Consent Judgment filed by Boost Oxygen, LLC. (Attachments: #
1 LR7.1/LR72.2 Word Count Compliance Certificate LR7.1(f) Certificate of
Compliance)(Landy, Barry) (Entered: 02/21/2020)
03/02/2020 85 Minute Entry for proceedings held before Judge Patrick J. Schiltz: Motion
Hearing held on 3/2/2020 re 72 MOTION for Contempt of Court filed by Boost
Oxygen, LLC. Motion taken under advisement, written order forthcoming.
(Court Reporter Debra Beauvais) (CLG) (Entered: 03/02/2020)
03/02/2020 (Court only) *** Motions Taken Under Advisement: 72 MOTION for Contempt
of Court (CLG) (Entered: 03/02/2020)
03/11/2020 86 TEXT ONLY ENTRY: CLERK'S NOTICE OF REASSIGNMENT. This case is
reassigned to Magistrate Judge David T. Schultz. Magistrate Judge Steven E.
Rau no longer assigned to the case. NOTE: the new case number is 17cv5004
9 of 10 9/9/2020, 3:30 PM
PJS/DTS. Please use this case number for all subsequent pleadings. (JME)
(Entered: 03/11/2020)
03/12/2020 87 JOINT MOTION REGARDING CONTINUED SEALING re 74 Memorandum
in Support of Motion, 79 Declaration in Support, 80 Exhibit, Docket Nos. 80-1,
80-2, 80-3, 80-4, 80-5, 80-6, 80-7, 80-8, 80-9, 80-10, 80-11 filed by Boost
Oxygen, LLC. (Agbaje, Esther) (Entered: 03/12/2020)
03/12/2020 88 PROPOSED ORDER TO JUDGE re Continued Sealing of Documents 87 Joint
Motion Regarding Continued Sealing,. (Agbaje, Esther) (Entered: 03/12/2020)
03/13/2020 89 ORDER granting 87 Joint Motion Regarding Continued Sealing.
Document Number(s) to be UNSEALED: 74, 79, 80, 80-1 through 80-11.

Order on continued sealing becomes final on 4/10/2020 unless further timely
submissions are filed.
Signed by Magistrate Judge David T. Schultz on 03/13/2020. (TJB) (Entered:

03/13/2020)
08/10/2020 90 ORDER denying 72 Motion for Contempt. (Written Opinion) Signed by Judge
Patrick J. Schiltz on 8/10/2020. (CLG) (Entered: 08/10/2020)
09/08/2020 91 NOTICE OF APPEAL TO FEDERAL CIRCUIT as to 90 Order on Motion for
Contempt by Boost Oxygen, LLC. Filing fee $ 505, receipt number AMNDC-
8035061. (Landy, Barry) (Entered: 09/08/2020)
10
9/9/2020
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0:17-cv-05004-PJS-DTS 1-2 Page:
Document 15 08/10/20
90 Filed Filed: 09/15/2020
Page 1 of 25
DISTRICT OF MINNESOTA
BOOST OXYGEN, LLC, a Connecticut Case No. 17‐CV‐5004 (PJS/DTS)
Limited Liability Company,
Plaintiff,
v. ORDER
OXYGEN PLUS, INC., a Minnesota
Corporation,
Defendant.
Robert Neuner, HOFFMANN & BARON, LLP; Barry M. Landy, Esther
Agbaje, and Jan M. Conlin, CIRESI CONLIN LLP, for plaintiff.
Loren L. Hansen, Brian A. Dillon, and Dion Farganis, LATHROP GPM
LLP, for defendant.
In November 2017, plaintiff Boost Oxygen, LLC (“Boost”) brought suit against
defendant Oxygen Plus, Inc. (“Oxygen Plus”) for infringement of a design patent and
trade dress. The lawsuit was meritless, as Oxygen Plus’s product clearly did not
infringe Boost’s patent or trade dress. But Oxygen Plus did not have a lot of money to
spend on lawyers, and the lawyer whom it did hire apparently gave it questionable
advice.1 Based on that questionable advice, Oxygen Plus entered into a settlement
agreement and consent judgment. Oxygen Plus agreed that its product infringed
1
To be clear: The questionable advice came from a former attorney, not from
Lathrop GPM, which now represents Oxygen Plus.
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Boost’s patent and trade dress (even though it didn’t), and Oxygen Plus agreed to
redesign its product. Oxygen Plus also agreed to be enjoined from further infringement
of Boost’s patent or trade dress.
Oxygen Plus redesigned its product and brought it to market. The redesigned
product is not much different from the original product; indeed, on quick glance, it is
difficult to tell the two apart. Boost now alleges that the redesigned product infringes
its patent and trade dress, and it asks this Court to hold Oxygen Plus in contempt.
Because the consent judgment orders Oxygen Plus not to infringe Boost’s patent or
trade dress—and because Oxygen Plus’s redesigned product does not infringe Boost’s
patent or trade dress—the Court declines to hold Oxygen Plus in contempt.
I. BACKGROUND
Boost and Oxygen Plus both sell lightweight, portable oxygen canisters. ECF
No. 1 at ¶¶ 1, 3. The oxygen canisters can serve as a source of supplemental oxygen for
runners, hikers, and others engaged in intense aerobic activity. ECF No. 79‐3 at 39. The
oxygen canisters consist of two parts: (1) a tubular portion in which oxygen is stored
and (2) a “mask” that attaches to the top of the tubular portion and allows the user to
breathe in oxygen. ECF No. 1 at ¶ 1. This lawsuit concerns masks.
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Boost owns U.S. Design Patent D610,250 (“the ‘250 patent”), which covers a
design for an oxygen‐canister mask. ECF No. 28 at 1;2 ECF No. 1‐1. Boost sued Oxygen
Plus alleging (among other things) that one of Oxygen Plus’s masks (the “O+ Biggi
mask”) infringed the ‘250 patent and Boost’s trade dress. See ECF No. 1. Depicted
below (from left to right) are Boost’s patented mask design, Boost’s commercial
embodiment of that design, and Oxygen Plus’s allegedly infringing O+ Biggi mask:
Oxygen Plus decided that, ”[r]ather than spend a small fortune on attorneys,” it
would enter into a settlement agreement and consent judgment. ECF No. 80‐6 at 3. As
part of the deal, Oxygen Plus agreed that its O+ Biggi mask infringed the ‘250 patent
and Boost’s trade dress. ECF No. 28 at 1, 3. Oxygen Plus also “agreed to change the
design of the O+ Biggi mask in a way that avoids infringement of [the] ‘250 Patent and
the trade dress of Boost Oxygen’s oxygen canisters.” Id. at 3. Oxygen Plus was
2
The Court cites to this document’s internal pagination.
-3-
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“enjoined from further infringing the ‘250 Patent”and from using any “product design
that is confusingly similar to the trade dress of Boost Oxygen’s oxygen mask.” Id. at 2,
3. There was one exception: Oxygen Plus was granted a “limited term license” to sell a
limited quantity of its O+ Biggi masks for a limited amount of time, as long as it paid
substantial royalties to Boost. Id. at 2.
Oxygen Plus was not well advised during the underlying litigation. Had Oxygen
Plus filed a motion to dismiss, that motion would almost certainly have been granted,
as Oxygen Plus’s original O+ Biggi mask differed in significant respects from the
patented design. Instead of moving to dismiss the lawsuit, however, Oxygen Plus
entered into a consent judgment in which it agreed that its O+ Biggi mask infringed the
‘250 patent and Boost’s trade dress. Oxygen Plus also agreed to make royalty payments
to Boost totaling $150,000—money that could have been used to pay an attorney to
bring a motion to dismiss. ECF No. 28 at 2; ECF No. 82 at 1.3
Oxygen Plus further agreed to redesign its O+ Biggi mask—and it did so without
meaningful guidance or protection. ECF No. 28 at 3. The consent judgment provided
that:
Oxygen Plus has agreed to change the design of the
O+ Biggi mask in a way that avoids infringement of Boost
Oxygen’s ‘250 Patent and the trade dress of Boost Oxygen’s
oxygen canisters. A rough sketch of the redesigned O+ Biggi
3
The Court cites to this document’s internal pagination.
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mask is shown in Exhibit B. It is anticipated that in its final
form, the redesigned O+ Biggi mask will look even more like
the prior art and less like Boost Oxygen’s patented mask
design. With this understanding, Boost Oxygen has agreed
that the redesigned mask would not infringe its ‘250 Patent
and/or its trade dress.
ECF No. 28 at 3. Curiously, however, the “rough sketch of the redesigned O+ Biggi
mask” (which appears below) consisted of a single sketch, from a single angle, which
essentially depicted the original O+ Biggi mask with slightly more rounded sides. Id.
at Ex. B.
Basically, then, Oxygen Plus agreed to make a slight change to its O+ Biggi
mask—and vaguely said that it “anticipated” making other (unspecified) changes that
would cause the redesigned mask to look more like (unspecified) prior art—and Boost
agreed that this redesigned mask would not infringe the ‘250 patent or its trade dress.
As promised, Oxygen Plus redesigned its mask, and at considerable expense.
ECF No. 40‐1. Oxygen Plus made the sides of the redesigned mask slightly more
rounded, precisely as called for by the rough sketch. Oxygen Plus also made a couple
-5-
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of other minor changes. On the whole, though, the redesigned O+ Biggi mask looks a
lot like the original O+ Biggi mask. The two masks appear below, with the original
mask on the left and the redesigned mask on the right.
Boost now alleges that Oxygen Plus has violated the consent judgment by
continuing to infringe Boost’s patent and trade dress. Boost asks the Court to hold
Oxygen Plus in contempt.
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II. ANALYSIS
A. Contempt for Continued Patent Infringement
Boost asks that Oxygen Plus be held in contempt for continuing to infringe the
‘250 patent after the entry of a permanent injunction barring such infringement. Under
TiVo Inc. v. EchoStar Corp., Boost “must prove both that [1] the newly accused product is
not more than colorably different from the product found to infringe and that [2] the
newly accused product actually infringes.” 646 F.3d 869, 882 (Fed. Cir. 2011) (en banc).
Both elements must be proven by clear‐and‐convincing evidence. Id. at 883; see also
Acosta v. La Piedad Corp., 894 F.3d 947, 951 (8th Cir. 2018).
The parties agree that the redesigned O+ Biggi mask is not more than colorably
different from the original O+ Biggi mask. The question, then, is whether the
redesigned mask “actually infringes” the ‘250 patent. TiVo Inc., 646 F.3d at 882. The
parties disagree about whether Oxygen Plus is collaterally estopped from arguing that
its redesigned mask does not infringe the ‘250 patent. The parties also disagree about
how the Court should conduct the infringement analysis. The Court addresses these
issues in turn.
1. Collateral Estoppel
Boost contends that Oxygen Plus is collaterally estopped from arguing that its
redesigned mask does not infringe the ‘250 patent. Under the doctrine of collateral
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estoppel (or “issue preclusion”), a party may be estopped from litigating a particular
issue if five things are true:
(1) the party sought to be precluded in the second suit must have been a
party, or in privity with a party, to the original lawsuit;
(2) the issue sought to be precluded must be the same as the issue involved in
the prior action;
(3) the issue sought to be precluded must have been actually litigated in the
prior action;
(4) the issue sought to be precluded must have been determined by a valid
and final judgment; and

(5) the determination in the prior action must have been essential to the prior
judgment.
Estrada‐Rodriguez v. Lynch, 825 F.3d 397, 402 (8th Cir. 2016).
Boost cannot satisfy the second or third elements. The issue now in dispute is
whether the redesigned mask—a product that did not even exist at the time of the “prior
action”—infringes the ‘250 patent. That issue is not the same as the issue involved in
the “prior action,” which was whether the original mask infringed the ‘250 patent. And
obviously, the question of whether the redesigned mask infringes the ‘250 patent was
not “actually litigated” in the “prior action.”
It cannot be true (as Boost argues) that because the consent judgment forecloses
Oxygen Plus from relitigating the question of whether the original O+ Biggi mask
infringes the ‘250 patent, and because the redesigned O+ Biggi mask is not more than
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colorably different from the original Biggi mask, Oxygen Plus is necessarily foreclosed
from litigating the question of whether the redesigned mask infringes the ‘250 patent. If
Boost were correct, then the second part of the two‐part TiVo test would serve no
purpose. On the one hand, if a redesigned product were more than colorably different
from the admittedly infringing product, that would end the inquiry; the court would
not need to address the issue of actual infringement. On the other hand, if a redesigned
product were not more than colorably different from the admittedly infringing product,
then (under Boost’s theory) the alleged infringer would be precluded from arguing that
its new product does not infringe. Again, the court would never reach the question of
actual infringement. In short, if Boost is correct, no court would ever apply the second
step of the TiVo test. Clearly, then, Boost is not correct.4 See, e.g., Glob. Ground
4
The Court’s conclusion finds support in Lund Industries, Inc. v. GO Industries,
Inc., 938 F.2d 1273 (Fed. Cir. 1991). In Lund, the parties entered into a settlement
agreement and consent judgment in which the defendant admitted that its product
infringed the plaintiff’s design patent. Id. at 1274. The defendant redesigned its
product, but the redesigned product was not more than colorably different from the
infringing product. Id. at 1274–75. Because the two products were not more than
colorably different, the district court granted a preliminary injunction to the
plaintiff—finding that the plaintiff was likely to succeed in showing that the
defendant’s redesigned product actually infringed the patent. Id.
The Federal Circuit reversed. The Federal Circuit found that “the trial court
erred in finding a likelihood of success on infringement based on a comparison of the
new [product] with the [infringing product].” Id. at 1275. The court held that, in order
to show infringement of a design patent, the ordinary‐observer test must be satisfied.
Id. at 1276. The court further held that the defendant’s “prior admission of infringement
(continued...)
-9-
CASE Case: 20-2268 Document:
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Automation, Inc. v. Orissa Holdings, LLC, No. 6:15‐cv‐002 RWS‐JDL, 2015 WL 7761089,
at *3 (E.D. Tex. Dec. 2, 2015) (“Under GGA’s interpretation, a plaintiff would have to do
no more than simply prove that there are no significant differences between the
[admittedly infringing product and the redesigned] product[] to satisfy the
infringement prong under TiVo. This Court is reluctant to collapse the two‐prong test of
TiVo as GGA would like. Particularly, the Court is disinclined to decide, on first
impression, that res judicata can be applied to satisfy the infringement prong of TiVo on
the facts of this case because to do so would be to effectively have the first prong of TiVo
swallow the second whole.”).
In addition, “[w]here a judgment between parties is entered by consent prior to
trial on any issue, no issue may be said to have been fully, fairly or actually litigated.”
Foster v. Hallco Mfg. Co., Inc., 947 F.2d 469, 480 (Fed. Cir. 1991) (citations omitted); see also
United States v. Brekke, 97 F.3d 1043, 1049 (8th Cir. 1996). Thus, “the general rule is that a
consent judgment has no issue‐preclusive effect unless it is clearly shown that the
parties intended to foreclose a particular issue in future litigation.” Brekke, 97 F.3d
at 1049 (citations omitted). The question is essentially one of contract interpretation.
4
(...continued)
on a different, albeit similar design does not justify departure from a proper [ordinary‐
observer] infringement analysis.” Id. at 1276.
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The consent judgment resolves the question of whether the original O+ Biggi
mask infringes the ‘250 patent and precludes Oxygen Plus from relitigating that issue.
But nothing in the consent judgment precludes either party from litigating whether the
redesigned O+ Biggi mask infringes the ‘250 patent. To the contrary, the consent
judgment explicitly says that Oxygen Plus will redesign its mask. And despite the fact
that the consent judgment seems to contemplate that the redesigned mask will closely
resemble the original mask, Boost conceded that “the redesigned mask would not
infringe the ‘250 patent.” ECF No. 28 at 3. If anything, the consent judgment seems to
preclude Boost from arguing that the redesigned mask does infringe the ‘250 patent. The
consent judgment certainly does not preclude Oxygen Plus from arguing that the
redesigned mask does not infringe.
This result is not unfair to Boost, as Boost complains. The consent judgment to
which Boost stipulated prohibits Oxygen Plus from infringing the ‘250 patent. Boost
knew that Oxygen Plus would redesign its mask, and Boost even signed off on a rough
sketch of that redesigned mask. Boost also knew that, if it wanted to hold Oxygen Plus
in contempt in connection with the redesigned mask, Boost would have to prove
infringement. Boost could have stipulated to a consent judgment that barred Oxygen
Plus from selling a mask that was not more than colorably different from the original
O+ Biggi mask. Had Boost done that, then Boost would not have to prove infringement,
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and the Court would now be holding Oxygen Plus in contempt.5 But Boost is stuck
with the consent judgment to which it stipulated, and that judgment does not preclude
Oxygen Plus from litigating the issue of whether its redesigned mask infringes the
‘250 patent.
2. Limit the Infringement Analysis To the Modified Elements
Boost next argues that, in determining whether Oxygen Plus’s redesigned mask
“actually infringes” the ‘250 patent, the Court may not compare the redesigned mask as
a whole to the patented design as a whole. Instead, says Boost, the Court must identify
the elements of the new mask that were modified and compare those modified elements
to the corresponding elements of the patented design. ECF No. 74 at 20–22; ECF No. 84
at 3–7.6
Boost cites a number of judicial decisions in support of its argument. What Boost
fails to recognize, however, is that all of those decisions (save one) involve utility
patents. But determining whether a utility patent has been infringed is a much different
5
See, e.g., Hubbard/Downing, Inc. v. Kevin Heath Enters., 1:10‐cv‐1131‐WSD, 2013
WL 12239523, at *4 (N.D. Ga. May 30, 2013) (finding that TiVo—and its actual‐
infringement requirement—was not applicable in a contempt proceeding when the
consent judgment did not bar the defendants from infringing the plaintiff’s patent, but
rather barred the defendants from producing a particular product of theirs or any
product not “more than colorably different from” their product).
6
The Court cites to these documents’ internal pagination.
-12-
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endeavor than determining whether a design patent has been infringed. Boost’s method
is suitable for the former, but not for the latter.
Utility patents typically include multiple claims, and claims typically include
multiple limitations. An accused product does not infringe a utility patent unless it
meets every one of the limitations of a particular claim. In essence, determining
whether there is infringement of a utility patent requires the court to compare the
elements of the accused device to the elements of the patented device (as expressed in the
limitations of the claims). When an accused product is adjudged to have infringed (in
either a contested or a stipulated judgment), the judgment is necessarily a finding that
the accused product meets every limitation of a particular claim. When a defendant
modifies the infringing product, there is no reason for the court to consider whether the
unmodified elements continue to meet their corresponding claim limitations; that has
already been determined. Instead, the court need only look at the elements that have
been modified and ensure that they continue to meet their corresponding claim
limitations.
This approach is utterly unsuited to determining whether a design patent has
been infringed. A design patent protects the overall appearance of an object. A design
patent does not describe claim limitations, as does a utility patent; instead, a design
patent consists mostly of drawings. The ‘250 patent is typical; six and one half of its
-13-
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seven pages consist of drawings. ECF No. 1‐1. The ‘250 patent contains a single claim.
In its entirety, that claim reads: “The ornamental design for a mask, as shown and
described.” Id. at 1.
Infringement of a design patent is not determined by breaking down an accused
device into elements and comparing those elements to corresponding limitations in a
claim. Rather, a court must apply the “ordinary observer test.” Egyptian Goddess, Inc. v.
Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008) (en banc). The ordinary‐observer test asks
whether “‘an ordinary observer, giving such attention as a purchaser usually gives,
[would find that the] two designs are substantially the same[.]’” Id. at 670 (quoting
Gorham Co. v. White, 81 U.S. 511, 528 (1871)). Crucially, the ordinary‐observer test
requires an “examination of the design as a whole.” Crocs, Inc. v. Int’l Trade Comm’n, 598
F.3d 1294, 1302 (Fed. Cir. 2010) (emphasis added).
Thus, the approach urged by Boost—identifying the elements of the accused
device that have been modified, and comparing those elements to corresponding claim
limitations—will simply not work with design patents.7 Again, determining
7
Boost cites only one case in which its approach was purportedly applied in
determining whether a design patent had been infringed: Lucasey Manufacturing, Inc. v.
Cuelho, Civ. A. No. 91‐4008, 1994 WL 502021 (D.N.J. Sept. 12, 1994). Lucasey involved
television mounting brackets. Id. at *1. The defendant admitted that his bracket
infringed the plaintiff’s design patent and stipulated to entry of a consent judgment. Id.
After the defendant redesigned his bracket, the plaintiff moved to hold him in
contempt, arguing that the redesigned bracket infringed the design patent. Id. As Boost
(continued...)
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infringement of a design patent involves comparing the overall appearance of the
accused device to the overall appearance of the patented design.8 “Where the claimed
7
(...continued)
points out, the Lucasey court remarked at one point that it “is bound by the defendant’s
admission . . . that his first bracket infringes on the plaintiff’s patent” and “[t]herefore
. . . only examines modifications between the first . . . bracket and the [redesigned]
bracket.” Id. at *1 n.1.
Boost’s reliance on Lucasey is misplaced, however. In deciding whether the
redesigned bracket infringed the design patent, Lucasey applied the ordinary‐observer
test, comparing the “overall appearance” of the defendant’s redesigned bracket to the
“overall appearance” of the commercial embodiment of the plaintiff’s patented design
and finding the two brackets to be “substantially similar.” Id. at *2. The court went on
to say that, under then‐governing Federal Circuit precedent, the court could not just
rely on the ordinary‐observer test, but also had to apply the “point of novelty” test. Id.
That test required the court to “dissect the brackets into a plurality of features” and
compare the modified features of the redesigned bracket to the corresponding features
of the patented design. Id.
The problem for Boost is that the point‐of‐novelty test was abandoned by the
Federal Circuit after Lucasey was decided. In Egyptian Goddess, the Federal Circuit
(sitting en banc) held that “the ‘ordinary observer’ test should be the sole test for
determining whether a design patent has been infringed.” 543 F.3d at 678 (emphasis
added). Thus, Lucasey is entirely consistent with this Court’s view, as Lucasey
recognized that applying the ordinary‐observer test requires a court to compare the
“overall appearance” of the redesigned product with the “overall appearance” of the
patented design.
8
See Columbia Sportswear N. Am., Inc. v. Seirus Innovative Accessories, Inc., 942 F.3d
1119, 1131 (Fed. Cir. 2019) (finding “the district court’s piecemeal approach, considering
only if design elements independently affect the overall visual impression that the
designs are similar,” to be “at odds with” the ordinary‐observer test, which “requir[es]
the factfinder to analyze the design as a whole” (citation omitted)); Ethicon Endo‐
Surgery, Inc. v. Covidien, Inc., 796 F.3d 1312, 1335 (Fed. Cir. 2015) (stating that differences
between the patented design and the allegedly infringing design must be evaluated “as
(continued...)
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and accused designs are ‘sufficiently distinct’ and ‘plainly dissimilar,’ the patentee fails
to meet its burden of proving infringement as a matter of law.” Ethicon Endo‐Surgery,
Inc., 796 F.3d at 1335 (citation omitted).
Here, Oxygen Plus’s redesigned O+ Biggi mask and Boost’s patented design are
plainly dissimilar. Boost’s patented design features a draping shoulder, a slanted
mouth opening, and an angular neck portion. Oxygen Plus’s redesigned mask shares
none of those features. Instead of a draping shoulder, Oxygen Plus’s mask features a
narrow ring that attaches to the top of the oxygen canister. Instead of a slanted mouth
opening, Oxygen Plus’s mask features a flat mouth opening. And instead of an angular
neck portion, Oxygen Plus’s mask features a hemispherical neck portion. A side‐by‐
side comparison of the patented design and the redesigned mask is shown below:
8
(...continued)
a whole, and not in the context of separate elements in isolation. . . . An element‐by‐
element comparison, untethered from application of the ordinary observer inquiry to
the overall design, is procedural error.” (citation omitted)).
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The Federal Circuit has made clear that “[i]nfringement is the sine qua non of
violation of an injunction against infringements.” KSM Fastening Sys., Inc. v. H.A. Jones
Co., Inc., 776 F.2d 1522, 1528 (Fed. Cir. 1985). Indeed, “devices which could not be
enjoined as infringements on a separate complaint cannot possibly be deemed enjoined as
infringements under an existing injunction in contempt proceedings.” Id. (citation
omitted). The consent judgment entered in this case does not enjoin Oxygen Plus from
using a redesigned mask that differs only slightly from its original mask; instead, the
consent judgment enjoins Oxygen Plus from infringing the ‘250 patent. The redesigned
O+ Biggi mask does not infringe the ‘250 patent, and thus the Court will not hold
Oxygen Plus in contempt.
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B. Contempt for Continued Trade‐Dress Infringement
In addition to enjoining Oxygen Plus from infringing the ‘250 patent, the consent
judgment also enjoins Oxygen Plus “from using the Boost Oxygen trade dress or any
other product design that is confusingly similar to the trade dress of Boost Oxygen’s
oxygen mask.” ECF No. 28 at 3. Boost alleges that Oxygen Plus’s redesigned mask
infringes Boost’s trade dress and asks the Court to hold Oxygen Plus in contempt. Once
again, Boost has the “burden of proving, by clear and convincing evidence, that
[Oxygen Plus] violated a court order.” Chi. Truck Drivers v. Brotherhood Lab. Leasing, 207
F.3d 500, 505 (8th Cir. 2000) (citation omitted).
To establish trade‐dress infringement, a plaintiff must show that its trade dress is
protectable, meaning that the trade dress (1) is distinctive, or has secondary meaning,
and (2) is nonfunctional. Munro v. Lucy Activewear, Inc., 899 F.3d 585, 589 (8th Cir. 2018);
Jalin Realty Cap. Advisors, LLC v. A Better Wireless, NISP, LLC, 917 F. Supp. 2d 927, 939
(D. Minn. 2013). The plaintiff must then show that the defendant’s trade dress is
confusingly similar to the plaintiff’s protectable trade dress. Munro, 899 F.3d at 589.
Oxygen Plus argues that Boost has not established that its trade dress is
protectable. ECF No. 82 at 23–24. That is true, but Oxygen Plus may not, in this
contempt proceeding, contest the protectability of Boost’s trade dress. That issue was
resolved by the consent judgment. Now, “the court must simply determine whether the
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terms of the injunction were violated by the new [product] version chosen by [Oxygen
Plus].” 5 J. McCarthy, Trademarks and Unfair Competition § 30.18, p. 30‐68 (5th ed.
2019) (hereinafter, “McCarthy”). In other words, the Court need only decide whether
Oxygen Plus’s redesigned mask is “confusingly similar” to Boost’s trade dress.9
“The trade dress of a product ‘involves the total image of a product and may
include features such as size, shape, color or color combinations, texture, graphics, or
even particular sales techniques.’” Prufrock Ltd., Inc. v. Lasater, 781 F.2d 129, 132 (8th
Cir. 1986) (citation omitted). In cases in which “the plaintiff has defined the trade dress
as the total image or overall impression of plaintiff’s product,” the court must compare
“this composite . . . with the corresponding image or impression of defendant’s
product.” 1 McCarthy, § 8.1, p. 8‐7. “If the accused trade dress is simply not similar
enough that confusion is likely, then no infringement has occurred.” Id. at § 8.15, p. 8‐
97.
9
See Wolfard Glassblowing Co. v. Vanbragt, 118 F.3d 1320, 1322 (9th Cir. 1997)
(“‘When enforcing injunctions that enjoin use of any mark confusingly similar to the
protected mark, courts should . . . simply evaluate whether or not the new mark is
confusingly similar to the protected mark.’” (quoting Wella Corp. v. Wella Graphics, Inc.,
37 F.3d 46, 48 (2d Cir. 1994)); Eskay Drugs, Inc. v. Smith, Kline & French Labs., 188 F.2d
430, 431 (5th Cir. 1951) (holding that, because the defendant had previously admitted
infringement in the consent decree, the only issue before the court was whether its new
name (“Enkay”) was a colorable imitation of the plaintiff’s protected trademark
(“Eskay”)).
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Boost’s mask (on the left) and Oxygen Plus’s redesigned mask (on the right) are
depicted below:
Clearly, Oxygen Plus’s redesigned mask is not confusingly similar to Boost’s
mask. As the Court has already explained, the two masks have completely different
designs. Among the most prominent features of Boost’s mask are a draping shoulder, a
slanted mouth opening, and an angular neck portion; Oxygen Plus’s redesigned mask
shares none of those features. Indeed, it is telling that Boost does not even attempt to
compare Oxygen Plus’s redesigned mask to Boost’s mask; instead, Boost compares
Oxygen Plus’s redesigned mask to Oxygen Plus’s original mask and argues that those two
masks are “confusingly similar.” ECF No. 74 at 24; ECF No. 84 at 10.
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In focusing only on the similarities between the two Oxygen Plus masks, Boost
relies on Toyo Tire & Rubber Co., Ltd. v. Hong Kong Tri‐Ace Tire Co., Ltd., 281 F. Supp. 3d
967 (C.D. Cal. 2017). The plaintiff in Toyo Tire sought to hold a defendant in contempt
for continued trade‐dress infringement in violation of a consent judgment. Id. at 974–77.
The defendant had previously agreed that its tire (the Mark Ma tire) infringed the trade
dress of the plaintiff’s tire (the OPMT tire). Id. at 975. The defendant then marketed a
new tire that was nearly identical to its Mark Ma tire. Id. at 975–76. The court decided
that, because the defendant had admitted that the Mark Ma tire infringed the plaintiff’s
trade dress, the court simply needed to decide whether the defendant’s new tire was
confusingly similar to the defendant’s Mark Ma tire. Id. at 985.
The defendant argued that the court could not determine whether the
defendant’s new tire infringed the plaintiff’s trade dress without comparing the new
tire to the plaintiff’s tire. Id. The court disagreed, finding that a comparison of the
defendant’s new tire to the plaintiff’s OPMT tire was unnecessary, as the defendant
admitted “that the Mark Ma tire infringed on the OPMT trade dress, and as a
consequence a tire with a confusingly similar overall appearance to the Mark Ma would
also infringe on the OPMT trade dress.” Id. Essentially, the court reasoned that if a (the
new tire) is confusingly similar to b (the Mark Ma tire), and b (the Mark Ma tire) is
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confusingly similar to c (the OPMT tire), then a (the new tire) must be confusingly
similar to c (the OPMT tire).
The Court questions the logic of Toyo Tire. “Confusingly similar” does not mean
“identical.” Thus, a can be confusingly similar to b even though the two products differ
in x respects. And b can be confusingly similar to c even though the two products differ
in y respects. The difference between a and c would be x + y. In other words, the gap
between a and c could be greater than the gap between a and b or b and c. Although
two products separated by x or y might be confusingly similar, two products separated
by x and y might not.
Whether or not Toyo Tire’s logic is sound, the Court does not agree with its legal
approach. The consent judgment entered in this case prohibits Oxygen Plus from
selling a product that is confusingly similar to Boost’s product. ECF No. 28 at 3. And
thus, to determine whether Oxygen Plus violated the consent judgment, the Court must
compare Oxygen Plus’s redesigned mask to Boost’s mask, not to Oxygen Plus’s original
mask. Other courts seem to agree. See, e.g., Wolfard Glassblowing Co., 118 F.3d at 1322
(“The question . . . is whether [the defendant’s] new lamp is a ‘colorable imitation’ of
[the plaintiff’s protected] lamp.”); Inverness Corp. v. Whitehall Labs., 710 F. Supp. 473,
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473–74 (S.D.N.Y. 1989) (comparing the defendant’s new product to the plaintiff’s
protected product).10
In sum, because Oxygen Plus was enjoined from using a “product design that is
confusingly similar to the trade dress of Boost Oxygen’s oxygen mask,” and because
Oxygen Plus’s redesigned mask is not “confusingly similar to the trade dress of Boost
Oxygen’s oxygen mask,” the Court will not hold Oxygen Plus in contempt.
One final point: A party can be held in contempt for violating a court order only
if the order is “‘clear and unambiguous.’” Imageware, Inc. v. U.S. W. Commc’ns, 219 F.3d
793, 797 (8th Cir. 2000) (quoting Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir. 1991)).
The consent judgment in this case is not “clear and unambiguous.” One problem is that
the consent judgement does not “define[] exactly what [Boost’s] trade dress consists of.”
1 McCarthy, § 8.3, p. 8‐17. Instead, the consent judgment merely refers to Boost’s mask
design, ECF No. 28 at 3, making the consent judgment impermissibly vague,
1 McCarthy, § 8.3, pp. 8‐20–8‐21.11
10
The Court notes that Toyo Tire cited nothing in support of its contrary approach.
And, in fact, the court did not just compare the defendant’s new tire to the defendant’s
old tire, but went on to compare the defendant’s new tire to the plaintiff’s tire. Toyo Tire
& Rubber Co., Ltd., 281 F. Supp. 3d at 985–86.
11
See also, e.g., Tumblebus Inc. v. Cranmer, 399 F.3d 754, 768 (6th Cir. 2005)
(reversing the grant of a preliminary injunction that enjoined the defendant from using
the plaintiff’s trade dress, because the district court did not “identify what particular
elements or attributes comprise the protectable trade dress” (citation omitted)); Yurman
(continued...)
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Another problem is that the consent judgment simply orders Oxygen Plus not to
produce any mask that is confusingly similar to Boost’s mask. This “adds nothing to
what the law already requires.” 5 McCarthy, § 30.13, p. 30‐49. When “an injunction is
so worded, then the factual elements of what exactly is [trade‐dress infringement] must
be re‐hashed all over again in a contempt hearing. . . . [This] is useless in informing the
defendant exactly what it is he must not do.” Id.12
In sum, then, the consent judgment (1) does not identify which features of
Boost’s mask are protected trade dress; (2) does not say why Oxygen Plus’s original
11
(...continued)
Design, Inc. v. PAJ, Inc., 262 F.3d 101, 117 (2d Cir. 2001) (noting the many problems that
arise when a plaintiff fails to identify which aspects of its products comprise the
protectable trade dress, including the problem that “‘[c]ourts will . . . be unable to shape
narrowly‐tailored relief’” and “competitor[s]” will not “know what new designs would
be subject to challenge” (citation omitted)); Yellowfin Yachts, Inc. v. Barker Boatworks,
LLC, 237 F. Supp. 3d 1230, 1235–36 (M.D. Fla. 2017) (“A plaintiff’s inability to identify
and describe a distinctive, aesthetic feature exposes a trade‐dress claim too vague to
succeed. . . . [I]f [the plaintiff’s] founder cannot describe with words the infringed
feature, neither can an injunction.”).
12
See also Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665, 667,
669 (8th Cir. 1987) (vacating the portion of an injunction which forbade the defendant
from using any materials “which are likely to confuse . . . the public into believing that
[defendant’s] products are associated with . . . [plaintiff’s] products,” as this was simply
a command to obey the law and left the defendant “to guess at what kind of conduct
would be deemed trademark infringement”); John H. Harland Co. v. Clarke Checks, Inc.,
711 F.2d 966, 984–85 (11th Cir. 1983) (reversing the grant of an injunction which
enjoined the defendant from using a trade dress “which is confusingly similar to the
trade dress or overall appearance” of the plaintiff’s “or is likely to cause confusion
therewith,” reasoning that the injunction “‘should be phrased in terms of objective
actions, not legal conclusions’” (citation omitted)).
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mask is confusingly similar to Boost’s trade dress (most likely because the masks are not
confusingly similar); and (3) simply orders Oxygen Plus to obey the law. This likely left
Oxygen Plus “uncertain as to what to do to avoid a charge of contempt and create[d] [a]
danger[] of anti‐competitive overprotection.” 1 McCarthy, § 8.3, p. 8‐17.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT plaintiff’s motion for contempt of court [ECF No. 72] is
DENIED.
Dated: August 10, 2020 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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Case: 20-2268 Document: 1-1 Page: 1 Filed: 09/15/2020

UNITED STATES COURT OF APPEALS

PETER R. MARKSTEINER CLERK’S OFFICE

September 15, 2020

Federal Circuit Docket No.: 2020-2268

Date of Docketing: September 15, 2020

Originating Case No.: 0:17-cv-05004-PJS-DTS

Appellant: Boost Oxygen, LLC

The following documents are due within 14 days of this notice:

• Entry of Appearance or Notice of Unrepresented Person Appearance. (Fed. Cir. R.

PARTY FILING AND CONTACT INFORMATION: Each counsel representing a party

/s/ Peter R. Marksteiner

By: E. Dumont, Deputy Clerk

cc: United States District Court for the District of Minnesota

BOOST OXYGEN, LLC,

OXYGEN PLUS, INC.,

Boost Oxygen, LLC v. Oxygen Plus, Inc.

UNITED STATES DISTRICT COURT

BOOST OXYGEN, LLC, Case No. 0:17-cv-05004-PJS-SER

Dated: September 8, 2020. By: /s/Barry M. Landy

Attorneys for Plaintiff Boost Oxygen, LLC

UNITED STATES DISTRICT COURT

Court of Appeals for the Federal Circuit

RE: Federal Circuit Appeal Information Sheet

Enclosed, please find one PDF copy of each of the following:

FEDERAL CIRCUIT APPEAL INFORMATION SHEET

Case Title: Boost Oxygen, LLC v. Oxygen Plus, Inc.

Boost Oxygen, LLC – Plaintiff

Oxygen Plus, Inc. - Defendant

FEES: Court of Appeals docket fee paid? X Yes No

Receipt Number: AMNDC-8035061

Court Reporter Name and Telephone Number:

Debra Beauvais – 612-664-5102

U.S. District Court

Boost Oxygen, LLC v. Oxygen Plus, Inc. Date Filed: 11/03/2017

David George Johnson , I

Date Filed # Docket Text

11/03/2017 4 NOTICE of Appearance by Barry M Landy on behalf of Boost Oxygen, LLC.

We have received documents listing Robert Neuner as counsel of record. If he

11/27/2017 11 DOCUMENT FILED IN ERROR-INCORRECT EVENT-WILL REFILE.

Rau on 3/15/2018. (MME) (Entered: 03/15/2018)

04/11/2019 38 AFFIDAVIT of LAUREN CARLSTROM in OPPOSITION TO 29 MOTION to

05/16/2019 50 (Text-only) ORDER FOR PARTY TO FILE DOCUMENT/RESPOND TO

For information on redaction procedures, please review Local Rule 5.5.

E. Rau on 7/25/2019. (MME) (Entered: 07/25/2019)

Exhibit(s) Sealed Exhibit L, # 13 Exhibit(s) Sealed Exhibit M, # 14 Exhibit(s)

Document Number(s) to be UNSEALED: 74, 79, 80, 80-1 through 80-11.

Signed by Magistrate Judge David T. Schultz on 03/13/2020. (TJB) (Entered:

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