WATERTOWN - An international cast of litigants is assembling f6r a patent-infringement fight involving an anti-snoring device. An Ottawa-based, dental-products distributor with an Ogdensburg office is providing the jurisdictional battleground for a Texas businessman's legal claim against an Australian company.

On Aug. 9, Dallas dentist, entrepreneur, and inventor Dr. W Keith Thornton filed a patent-infringement suit against MDSA Pty, Ltd., in federal court in Watertown. The complaint charges that MDSA manufactures dental components that have no purpose but to create unauthorized copies of Thornton's patented "Apparatus for Prevention of Snoring and Improved Breathing During Sleep," protected by U.S. Patent No. 5,427,117. ('117 patent)

Thornton's complaint charges that MDSA's exclusive American distributor, Braebon Medical Corp. sells MDSA-built dental parts that are used to infringe the '117 patent.

"MDSA's components have no purpose or use except to be used to construct infringing dental devices, sales of these components include instructions that demonstrate how to construct infringing dental devices," the complaint alleges. "MDSA intends that these components will be used to construct infringing dental devices."

Braebon is not named as a defendant in the suit. The company is headquartered in the Ottawa suburb of Carp and has its American office at 800 Proctor Ave. in Ogdensburg.

Thornton's complaint seeks a declaration that MDSA is contributing to the infringement of his patent, an injunction, damages, and attorney's fees.

Paul Ragusa, an attorney for Baker Botts, LLP's Manhattan office, represents Thornton in the Northern District of New York. Thornton's counsel also includes three attorneys in Dallas.

Thornton holds more than 20 U.S. patents for dental devices used to improve breathing as well as a number of patents in foreign markets. The doctor has licensed the '117 patent to approximately 10 manufacturers, says Christopher Kennerly, an attorney at Baker Botts' Dallas office.

"Dr. Thornton is a pioneer in the field and most of the industry has respected his patent rights," he explains, "In this case, he's been forced to turn to the courts."

Kennerly has worked with Thornton to protect the doctor's intellectual-property portfolio.

The U.S. Patent Office issued Thornton the '117 patent in 1995. The device consists of two dental arches that extend the user's lower jaw to eliminate snoring.

"Snoring affects not only the snorer," the patent reads, "but also those within earshot of the snorer."

MDSA is based in Victoria, Australia, but has no office in New York or elsewhere in the United States. Thornton's complaint states that MDSA should anticipate being sued in New York, because it conducts business through Braebon. Braebon's sale of the MDSA products in the Northern District of New York provides jurisdiction for the suit, according to the complaint.

MDSA has not yet been served with a copy of the complaint, says Kennerly. Treaties govern international service of legal process.

Copyright Central New York Business Journal Aug 19, 2005
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