Free Amended Complaint - District Court of California - California

Case 3:08-cv-01256-BTM-CAB

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MELODY A. KRAMER, SBN 169984 KRAMER LAW OFFICE, INC. 9930 Mesa Rim Road, Suite 1600 San Diego, California 92121 Telephone (858) 362-3150 [email protected] J. MICHAEL KALER, SBN 158296 KALER LAW OFFICES 9930 Mesa Rim Road, Suite 200 San Diego, California 92121 Telephone (858) 362-3151 [email protected]

Attorneys for Plaintiff JENS ERIK SORENSEN, as Trustee of SORENSEN RESEARCH AND DEVELOPMENT TRUST

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA JENS ERIK SORENSEN, as Trustee of SORENSEN RESEARCH AND DEVELOPMENT TRUST, Plaintiff v. Conair Corporation, a Delaware Corporation; and DOES 1 ­ 100, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08cv01256 AMENDED COMPLAINT FOR PATENT INFRINGEMENT

REQUEST FOR JURY TRIAL

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Plaintiff JENS E. SORENSEN, as TRUSTEE OF THE SORENSEN RESEARCH AND DEVELOPMENT TRUST ("SRDT"), for its Complaint for Patent Infringement against Defendants alleges as follows:

THE PARTIES 1. SRDT is a California resident, and the trustee of a trust organized

according to California law, and owner of all rights to United States Patent No. 4,935,184 (hereinafter "'184 patent"). A true and correct copy of the `184 patent is attached hereto as Exhibit A. 2. Defendant Conair Corporation ("Conair") is a corporation organized

under the laws of Delaware, having a principal office located at 1 Cummings Point Rd., Stamford, CT 06902. 3. Defendants DOES 1 ­ 100 are other persons or entities, presently

unidentified, that have also been engaged, directly or indirectly, in the manufacture, import, sale, and/or offer for sale in the United States of the products accused of infringement herein. 4. On information and belief, Defendants have acted as agents of one or

more of each other during some or all of the times relative to the subject matter of this Complaint.

JURISDICTION and VENUE 5. This action arises under the Patent Laws of the United States of

America, Title 35, United States Code. Jurisdiction is founded on Title 28, United States Code §§ 1331, 1332(a), and 1338(a). 6. On information and belief, venue in this district is proper under 28

U.S.C. §§ 1391 and 1400(b) because Defendants have committed acts of infringement in this District. 7. This Court has personal jurisdiction over Defendants because they have
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manufactured within, imported into, offered for sale, and/or sold infringing products in this District.

CLAIM FOR RELIEF (Patent Infringement) 8. SRDT realleges and incorporates herein by reference paragraphs 1

through 7, inclusive, as though fully set forth herein. 9. The `184 patent entitled "Stabilized Injection Molding When Using a

Common Mold Part With Separate Complimentary Mold Parts," was issued on June 19, 1990. 10. On information and belief, Defendants have, within the past six years,

made, imported into, sold or offered for sale within the United States and this District, products for which the two plastic component external plastic shells are manufactured through processes which incorporate all elements of the `184 patented process (hereinafter "Accused Products"). 11. Accused Products include the product(s) specifically identified below,

and any other of Defendants' products sold under any name which were manufactured utilizing similar processes, including but not limited to, any other product manufactured using the same injection mold as any of the products identified in the following table: CONAIR COLOR ZONE BRUSH THE CONAIR CHOPPER 2-IN-1 GROOMING SYSTEM
INTERPLAK POWER PLAQUE REMOVER BY CONAIR

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Defendants have not obtained a license or any other valid authorization

for import, sale, or offer for sale in the United States of products manufactured through use of the `184 patented process. 13. Defendants have been on constructive notice of the `184 patent since its
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issuance on June 19, 1990. 14. Defendants have been on actual express notice of the `184 patented

process since January 30, 2008. 15. Upon information and belief, the Defendants have engaged in design, manufacture, import, sell, and/or offer for sale within the United States, including this District, products that have dual-layer external plastic housings. 16. On information and belief, the Accused products identified herein and

as-yet-unidentified products manufactured through the same or substantially similar process have been manufactured through processes which incorporate all elements of the `184 patented process. 17. None of the Defendants have obtained a license or any other

authorization from the Plaintiff for manufacture, import, sale, and/or offer for sale in the United States of products manufactured through use of the `184 patented process. 18. Plaintiff's initial infringement notice to Defendants on January 30,

2008, provided Defendants with a drawing and associated claim chart showing the substantial likelihood pursuant to 35 U.S.C. § 295, of the infringement of the `184 patented process by the import, sale and/or offer for sale in this District and the United States of the identified Accused Products and all other Defendants' products manufactured with processes which incorporate the elements of the `184 patent. 19. The evidence provided to Defendants in the initial letter and subsequent

correspondence, illustrate how the processes utilized to produce the Accused Products incorporated each element of the `184 patent claims. 20. The initial letter requested Defendants pursuant to 35 U.S.C. § 295 to

provide factual information necessary to verify the manufacturing process used to make the Accused Products. 21. To date, Defendants have not produced admissible evidence

demonstrating the actual process used to manufacture the Accused Products. 22. SRDT made reasonable efforts to obtain process information for the
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Accused Products, providing Defendants with an opportunity to prove that it was not using the `184 process. 23. 24. All of the Accused Products have been manufactured in China. On information and belief, Defendant made, used, imported, sold and/or

offered for sale within the United States and this District, during the past six years and before February 5, 2008, the Accused Products using the `184 patent process, without authority to do so, in violation of 35 U.S.C. § 271, knowing such to be an infringement of the `184 patent, and in wanton and willful disregard of Plaintiff's `184 patent rights. 25. On information and belief, Defendants contributed to infringement of

the `184 patent and actively induced others to infringe the `184 patent by virtue of making, importing, selling, using and/or offering for sale within the United States and this District, in violation of 35 U.S.C. § 271, Accused Products manufactured using the `184 patent process in wanton and willful disregard of Plaintiff's `184 patent rights. 26. On information and belief, the conduct of Defendants in willfully

infringing the `184 patent, and contributing to infringement and inducing others to infringe the `184 patent, by the acts alleged hereinabove despite being on both constructive notice and actual notice, was deliberate, thus making this an exceptional case within the meaning of 35 U.S.C. § 285. 27. On information and belief, Plaintiff has suffered damages by reason of

Defendants' infringing conduct alleged hereinabove. The damages for Defendants' conduct are in an amount that constitutes at least a reasonable royalty for all of Defendants' sales of the Accused Products from six years prior to filing of this Complaint and continuing until February 5, 2008. 28. On information and belief, the reasonable royalty owed to Plaintiff from

Defendants is at least eight percent (8%) of gross revenues from sales of the Accused Products from six years prior to filing of this Complaint and continuing until
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February 5, 2008, and according to proof at trial. 29. On information and belief, the reasonable royalty owed to SRDT from

Defendants should be trebled on account of willful infringement by Defendants, and according to proof at trial.

PRAYER FOR RELIEF WHEREFORE, SRDT prays that judgment be entered as follows: a. For a determination that the Accused Processes are presumed to infringe

the `184 patent pursuant to 35 U.S.C. § 295; b. patent; c. Defendants are adjudicated and decreed to have contributed to the Defendants are adjudicated and decreed to have infringed the `184

infringement of the `184 patent and to have induced others to infringe the `184 patent; d. Defendants are ordered to account for damages adequate to compensate

Plaintiff for the infringement of `184 patent, their contributory infringement of the `184 patent, and their inducement of infringement of the `184 patent, in the amount of at least eight percent (8%) of gross sales during the infringing time period as a reasonable royalty for all relevant sales of Accused Products and according to proof at trial, and such damages are awarded to Plaintiff; e. Such damages as are awarded are trebled by the Court pursuant to 35

U.S.C. § 284 by reason of the willful, wanton, and deliberate nature of the infringement; f. That this case is decreed an "exceptional case" and Plaintiff is awarded

reasonable attorneys' fees by the Court pursuant to 35 U.S.C. § 285; g. h. i. For interest thereon at the legal rate; For costs of suit herein incurred; For such other and further relief as the Court may deem just and proper.
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DEMAND FOR JURY TRIAL SRDT respectfully requests that its claims be tried to a jury. DATED this Thursday, August 07, 2008. JENS ERIK SORENSEN, as Trustee of SORENSEN RESEARCH AND DEVELOPMENT TRUST, Plaintiff /s/ Melody A. Kramer Melody A. Kramer, Esq. Attorney for Plaintiff

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PROOF OF SERVICE I, Melody A. Kramer declare: I am and was at the time of this service working within in the County of San Diego, California. I am over the age of 18 year and not a party to the within action. My business address is the Kramer Law Office, Inc., 9930 Mesa Rim Road, Suite 1600, San Diego, California, 92121. I am a member of the State Bar of California and the Bar of this Court. On August 7, 2008, I served on the parties to this action the following documents:

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Case No. 08cv01256

AMENDED COMPLAINT FOR PATENT INFRINGEMENT

PERSON(S) SERVED

PARTY(IES) SERVED

METHOD OF SERVICE Email--Pleadings Filed with the Court

Dean D. Niro Robert A. Conley Niro, Scavone, Haller & Niro 181 W. Madison St., Ste. 4600 Chicago, IL 60602 312/236-3137 FAX [email protected] Allison Goddard Jaczko Goddard LLP 4401 Eastgate Mall San Diego, CA 92121 [email protected]

Defendant Conair Corporation

Defendant Conair Corporation

Email--Pleadings Filed with the Court

(Email) I emailed a true copy of the foregoing documents to an email address represented to be the correct email address for the above noted addressee. X (Email--Pleadings Filed with the Court) Pursuant to Local Rules, I electronically filed this document via the CM/ECF system for the United States District Court for the Southern District of California.

I declare that the foregoing is true and correct, and that this declaration was executed on Thursday, August 07, 2008, in San Diego, California. /s/ Melody A. Kramer __________________________ Melody A. Kramer

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EXHIBIT A

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