IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO CREATIVE GIFTS, INC., FASCINATIONS TOYS & GIFTS, INC., and WILLIAM HONES Plaintiffs, CIV.97 1266 LH/WWD v. UFO, MICHAEL SHERLOCK, KAREN SHERLOCK Defendants. AFFIDAVIT OF SAUL LEITNER STATE OF NEW MARYLAND ) )ss. COUNTY OF MONTGOMERY ) I, Saul Leitner, being duly sworn, hereby depose and say as follows: 1. I am a patent attorney registered to practice before the U.S. Patent and Trademark Office. I represent Creative Gifts, Inc., Fascinations Toys & Gifts, Inc., William G. Hones (Bill), and Dr. Edward W. Hones in patent, trademark and other intellectual property matters. 2. The facts stated herein are of my own personal knowledge. I am competent and willing to testify to their truth. 3. In about October 1996, Bill Hones sent me a copy of a letter he had received from Mr. Martin Simon in which Mr. Simon raised questions about Bill Hones? dealings with Roy Harrigan. 4. I responded to Mr. Simon by a letter dated October 14, 1996 a true and accurate copy of which is attached hereto as Leitner Ex. 1. 5. In that letter I explained to Mr. Simon (1) that I had given Bill Hones my opinion that the claims of the Harrigan patent were not infringed by the new device that Bill Hones and his father Dr. Edward Hones had developed, (2) that there was no reason for Bill Hones to obtain a patent license from Roy Harrigan or pay him a royalty, and (3) that even though Bill and Dr. Edward Hones did not set out to intentionally circumvent Roy Harrigan?s patent, had they done so, that would have been a legally proper, legitimate and responsible plan for any business. 6. In about July 1997, I received a letter from Mike and Karen Sherlock a copy of which I understand has been submitted with the Sherlocks? Motion for Summary Judgment as Defendants' Exhibit 5. From that letter it is clear that the Sherlocks obtained a copy of my letter to Mr. Martin Simon and were questioning my factual and legal analysis of the circumstances and the legal opinions I had given to Bill Hones. 7. After receiving their letter, I telephoned the Sherlocks and attempted to explain to them how the patent system works with respect to patenting improvements on prior inventions, patent infringement issues and the legitimacy of designing around prior patents like Harrigan?s. I told them that Bill and Ed Hones had developed an improvement of the Harrigan device, namely, Fascinations? Levitron® device, that did not infringe Harrigan?s patent and that under the U.S. Patent Laws there is no obligation to pay anything to a prior inventor unless his patent is infringed. I also tried to explain to them why designing around a patent is not only a "fair and honest" endeavor, but also is a responsible objective of any business. The Sherlocks were not the least bit interested in my explanations of any of those issues, but were only interested in whether Roy Harrigan?s device was more or less stable than Fascinations? Levitron® device and whether Roy Harrigan?s device was commercially viable. Further affiant sayeth not. Date: 2/25/98 [signed] Saul Leitner Sworn and subscribed to before me this 25th day of February, 1998. [signed] Noreen Kaminski Notary Public Commission Expires 8/17/98