Cherdak v. Nintendo of North America, Inc.
United States District Court, Eastern District of Virginia
Case No. 2:15-cv-366
Filed August 14, 2015

Plaintiff Erik B. Cherdak is a pro se applicant who sued Nintendo of America on August 14, 2015. Plaintiff sued Defendant for the alleged past infringement of his Patent Nos. 5,343,445 and 5,452,269. The patents-in-suit, entitled “Athletic Shoe with Timing Device,” cover a device for measuring the amount of time an athletic shoe is in the air, similarly known as a pedometer.

Below is an exemplary claim from the ’445 patent:

1. A method for indicating hang time off the ground and in the air during a jump by a person wearing an athletic shoe, said method comprising the steps:
(a) sensing, within said shoe, when said shoe leaves the ground during said jump;
(b) sensing, within said shoe, when said shoe returns to the ground at the end of said jump; and
(c) activating a hang time indicator on said shoe during the time interval between said shoe leaving and returning to the ground as sensed in steps (a) and (b), respectively, said indicator providing an indication of hang time in a manner perceptible to said person.

The ‘445 patent issued August 30, 1994, and the ‘269 patent issued September 19, 1995.  The filing dates for these patents were prior to June 8, 1995, when the 1994 Uruguay round of the GATT changed the rules for calculating patent term. Under the old rules, the patents-in-suit expired 17 years from the date of issue or 20 years from the earliest non-provisional priority date, whichever date is greater. Therefore, absent mitigating circumstances these patents expired July 6, 2013.

The accused products are the Nintendo DS “Personal Trainer: Walking” line, which includes a pedometer for tracking steps and other activities. The device can be worn on shoes or other articles of clothing.  The accused product also contains software for operating and controlling the device to allow users to set personal health goals.

In the complaint Plaintiff is asking for royalties for the alleged past infringement by Nintendo.

It is worth mentioning that Erik Cherdak has filed approximately 40 lawsuits for patent infringement of these two patents over the last ten years.

We will watch for any interesting developments in this case.
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