December 26, 2008

Fitch Even client, GPS Industries, Inc., has prevailed in its motion to dismiss a declaratory judgment claim brought by its competitor, ProLink Solutions, LLC in the U.S. District Court for the District of Arizona. ProLink’s claim sought a declaration of non-infringement and invalidity of U.S. Patent No. 5,685,786, which relates to digital advertising in GPS based golf course management systems.

ProLink filed its declaratory judgment lawsuit on the eve of an announced merger between GPSI and a third competitor, UpLink Corporation. ProLink alleged in its complaint that a senior GPSI executive had threatened to sue for infringement once the merger was completed, an allegation which GPSI denied. The merger ultimately did not close for more than two months after the ProLink lawsuit was filed.

In an Opinion dated December 24, 2008, The Honorable John W. Sedwick held that there was no present an actual controversy of sufficient immediacy to support declaratory judgment jurisdiction under the standard recently promulgated by the U.S. Supreme Court in the case MedImmune, Inc. v. Genentech, Inc. The Court recognized that the alleged threat - premised on the indefinite future event of the merger closing – was too speculative to create an immediate actual controversy as required by the MedImmune decision. The Court also agreed with GPSI that the patent infringement lawsuit it subsequently brought against ProLink in Illinois under the same ‘786 patent did not demonstrate the existence of an immediate actual controversy at the time the ProLink lawsuit was filed in Arizona.

GPS Industries is represented by attorneys Steve Schroer, Tim Maloney and Ted Li.