Free Amended Complaint - District Court of California - California

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MELODY A. KRAMER, SBN 169984 9930 Mesa Rim Road, Suite 1600 San Diego, California 92121 Telephone (858) 362-3150 email: [email protected] J. MICHAEL KALER, SBN 158296 9930 Mesa Rim Road, Suite 200 San Diego, California 92121 Telephone (858) 362-3151 email: [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. EMERSON ELECTRIC CO., a Missouri corporation; ONE WORLD TECHNOLOGIES, INC., a Delaware corporation; RIDGE TOOL COMPANY, an Ohio corporation; RIDGID, INC., a Delaware corporation; and DOES 1 ­ 100 Defendants. _________________________________ and related counterclaims. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08cv00060 BTM CAB FIRST AMENDED1 COMPLAINT FOR PATENT INFRINGEMENT REQUEST FOR JURY TRIAL

1

Amended to add two new accused products in paragraph 24.

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Plaintiff JENS E. SORENSEN, as TRUSTEE OF THE SORENSEN RESEARCH AND DEVELOPMENT TRUST ("SRDT"), pursuant to leave granted by the Court, files this AMENDED 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 Emerson Electric Co. ("EMERSON") is a publicly-traded corporation (NYSE: EMR) organized under the laws of Missouri, having a principal office located at 8000 West Florissant Avenue, St. Louis, Missouri 63136, and conducts business under the trademarked name "Emerson Professional Tools." 3. Defendant One World Technologies, Inc. ("OWT") is a corporation organized under the laws of Delaware, having a principal office located at 1428 Pearman Dairy Road, Anderson, South Carolina 29625. 5. Ohio 44035. 6. Defendant Ridgid, Inc. ("RIDGID") is a corporation organized under the laws of Delaware, having a principal office located at 850 Library Avenue, Suite 204, Newark, Delaware 19711. 7. 8. 9. Defendant DOE 1 is an entity, legal form unknown, that represents itself Upon information and belief, DOES 2-100 are entities, legal form Upon information and belief, one or more Defendants have acted as
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Defendant Ridge Tool Company ("RIDGE") is a corporation organized

under the laws of Ohio, having a principal office located at 400 Clark Street, Elyria,

as "Ridgid Power Tools, St. Louis, Missouri." unknown, that are involved in the actions giving rise to this Complaint.

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agents of one or more of each other during some or all of the times relative to the subject matter of this Complaint. 10. Upon information and belief, the Defendants have in the past and/or presently design, control manufacture, import, sell, and/or offer for sale within the United States, including this District, power tools with plastic housings, including products identified herein as accused products. JURISDICTION and VENUE 11. 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). 12. 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 here and have extensive networks of dealers and online retailers, which sell its products in this District. 13. This Court has personal jurisdiction over Defendants under the longarm statute of California and U.S. constitutional law because upon information and belief Defendants market and/or ships its products into this District, offer those products for sale and sells those products in this District, provide advertising in this District targeted to this district's residents, and maintain a network of authorized distribution arrangements with retailers in this district for the purpose of selling their products. GENERAL ALLEGATIONS 14. 19, 1990. 15. Upon information and belief, Defendants jointly, and with other entities
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The `184 patent entitled "Stabilized Injection Molding When Using a

Common Mold Part With Separate Complimentary Mold Parts," was issued on June

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not named as parties herein, engage in the design, manufacture, import, distribution, marketing, selling, and/or offering for sale of power tools under the Ridgid® trademark. 16. Upon information and belief, the Defendants have intentionally and knowingly created a web of entities that all work together under common leadership and control with respect to the manufacture and distribution of Ridgid® power tools. 17. 18. Defendants have been on constructive notice of the `184 patent since its Defendants have been on actual notice of the `184 patented process at issuance on June 19, 1990. least as early as September 2004. 19. 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, power tools that have dual-layer external plastic housings. 20. On information and belief, said products identified herein and as-yet-

unidentified products manufactured through the same or substantially similar process are manufactured through processes which incorporated all elements of the `184 patented process. 21. 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. CLAIM 1 - PATENT INFRINGEMENT 22. 23. SRDT realleges and incorporates herein by reference paragraphs 1 On information and belief, Defendants have, within the past six years, through 21, inclusive, as though fully set forth herein. designed, manufactured, imported into, sold and/or offered for sale within the United States and this District, products having dual-layer external plastic shells ("Accused Products").
4.
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24.

On information and belief, the Accused Products include the following:

Ridgid 18V Cordless Reciprocating Saw, Model No. R844; Ridgid HD 3/8" VSR Drill, Model No. R7000; Ridgid HD Reciprocating Saw, Model No. F3000; Ridgid 18V Cordless ½" Hammer Drill, Model No. R8411503; Ridgid 18V Cordless 1/2 " Drill, Model No. R84015; Ridgid 18V Cordless Drill, Model No. R84001; Ridgid 14.4V Cordless ½" Drill, Model No. R83015; Ridgid 12V Right Angle Impact Driver, Model No. R82233; Ridgid 14.4V Impact Driver, Model No. R82320; Ridgid 12V Cordless 3/8" Drill, Model No. R82001; Ridgid Heavy Duty 3 Speed ½" Right Angle Drill, Model No. R7130; Ridgid Heavy Duty 2 Speed ½" VSR Drill, Model No. R7100; Ridgid Heavy Duty VSR Drywall Screwdriver, Model No. R6000; Ridgid Heavy Duty ½" VSR Hammer/Pulse Drill, Model No. R5010; Ridgid 7 ¼" Worm Drive Saw, Model No. R3210; Ridgid Heavy Duty 7 ¼" Circular Saw, Model No. R3200; Ridgid 18V Cordless Jig Saw, Model No. R843; Ridgid Variable Speed Orbital Jig Saw, Model No. R3120;
5.
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Ridgid Heavy Duty 11A Reciprocating Saw, Model No. R3001; Ridgid 18V Cordless Hand Planer, Model No. R848; Ridgid Heavy Duty Variable Speed Belt Sander, Model No. R2720; Ridgid 9.6V Pivoting Screwdriver, Model No. R81030; Ridgid Heavy Duty ½" Two Speed Hammer Drill, Part No. R5011 Ridgid Heavy Duty VSR Drywall Screwdriver, Part No. R6000 Ridgid Professional 3/8" VSR Drill, Part No. R70002 Ridgid Heavy Duty ½" VSR Hammer Drill, Part No. R5013 Ridgid Max Select Dual Voltage Jig Saw Ridgid Heavy Duty ½" VSR Drill Ridgid 12 Volt Cordless 3/8" Drill Ridgid Max Select Dual Voltage Reciprocating Saw Ridgid 18 Volt Compact Lithium ­ Ion Drill Ridgid Max Select Dual Voltage Circular Saw Ridgid 24 Volt Lithium-Ion Cordless Hammer Drill Ridgid Worklight Ridgid ¼ Sheet Sander Ridgid 5" Random Orbit Sander Ridgid Max Select Hand Planer Ridgid 6 ½" Compact Framing Saw Ridgid 12 Volt Right Angle Impact Driver Ridgid 7" Circular Saw
6.
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Ridgid 7 ¼" Worm Drive Circular Saw Ridgid Variable Speed Orbital Jig Saw Ridgid ½" Right Angle Drill Ridgid Variable Speed Belt Sander Ridgid Twist Handle Orbital Reciprocating Saw Ridgid Heavy Duty 11Amp Reciprocating Saw Ridgid 18 Volt Cordless Impact Driver Ridgid 18 Volt Reciprocating Saw Ridgid 18 Volt Circular Saw Ridgid 18 Volt Cordless Hammer Drill R6300 HD Impact Wrench R3202 7-1/4" Circular Saw Fuego ½" Framing Saw V.S. Laminate Trimmer 6" Random Orbit Sander HD 3" V.S. 3" x 18" Belt Sander R1020 Twist Handle 7" Angle Grinder R3121 VS Orbital Jig Saw MS1065LZA 10" Compound Miter Saw R4121 12" Dual Compound Miter Saw MS1250LZA 12" Compound Miter Saw MS1290LZA 12" Sliding Compound Miter Saw R851150 Hammer Drill R854 Reciprocating Saw R830153 14.4V Cordless ½" Drill/Driver Kit R82007 12V Lithium-Ion Drill/Driver R86111 18V Lithium-Ion Hammer Drill
7.
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WTS2000L 10" Wet Tile/Stone Saw 100-B Compact Press Tool Micro CG-100 Combustible Gas Sniffer IR-100 Micro-Ray Infrared Thermometer 20218 25' Tape Measure

25.

On information and belief, the Accused Products may include other

Ridgid-brand products sold under any other names or model numbers names which are manufactured utilizing similar processes, including but not limited to, any other product manufactured using the same injection mold as any of the products identified above. 26. On information and belief, the Accused Products are manufactured

through processes which incorporate all elements of the `184 patented process. 27. One or more of the Defendants received a notice of infringement from

Plaintiff, detailing a substantial likelihood pursuant to 35 U.S.C. § 295 that certain Accused Products were manufactured through a process which incorporates all elements of the `184 patented process and were asked to verify the actual manufacturing process. 28. 29. 30. To date, none of the Defendants have presented any admissible On information and belief, manufacturing of the Accused Products On information and belief, the Defendants act together as a single evidence of the actual manufacturing process for any Accused Products to Plaintiff. occurs in China. enterprise for purposes of designing, manufacturing, marketing, importing, offering for sale, and/or selling the Accused Products. 31. On information and belief, Defendants continue to engage in infringement of the `184 patent, and in wanton and willful disregard of SRDT's `184
8.
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patent rights. 32. 33. On information and belief, Defendants continue to contribute to On information and belief, the conduct of Defendants in willfully infringement of the `184 patent and induce others to infringe the `184 patent. continuing to infringe the `184 patent, and to contribute to infringement and induce others to infringe the `184 patent, despite being on both constructive notice and actual notice, is deliberate, thus making this an exceptional case within the meaning of 35 U.S.C. § 285. 34. 35. On information and belief, SRDT has suffered and is continuing to A reasonable royalty for infringement of the `184 patent constitutes at suffer damages by reason of Defendants' infringing conduct. least eight percent (8%) of gross sales by each of the Defendants of the Accused Products from six years prior to the filing of this Complaint and continuing until expiration of the `184 patent, according to proof and allocation at trial. 36. On information and belief, the reasonable royalty owed to SRDT from Defendants should be trebled on account of willful infringement by Defendants, according to proof and allocation at trial. PRAYER FOR RELIEF WHEREFORE, SRDT prays that judgment be entered as follows: a. b. For a determination that the Accused Processes are presumed to infringe For a determination that the Defendants act together as a single the `184 patent pursuant to 35 U.S.C. § 295; enterprise for purposes of designing, manufacturing, marketing, importing, offering for sale, and/or selling the Accused Products; c. patent; d. Defendants are adjudicated and decreed to have contributed to the
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Defendants are adjudicated and decreed to have infringed the `184

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infringement of the `184 patent and to have induced others to infringe the `184 patent; e. Defendants are ordered to account for damages adequate to compensate SRDT for the infringement of `184 patent, their contributory infringement of the `184 patent, and their inducement of infringement of the `184 patent, according to proof and allocation at trial, and such damages are awarded to SRDT; f. 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; g. h. i. j. That this case is decreed an "exceptional case" and SRDT is awarded 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. reasonable attorneys' fees by the Court pursuant to 35 U.S.C. § 285;

10.

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DEMAND FOR JURY TRIAL

SRDT respectfully requests that its claims be tried to a jury. DATED this Tuesday, September 02, 2008. JENS ERIK SORENSEN, as Trustee of SORENSEN RESEARCH AND DEVELOPMENT TRUST, Plaintiff /s/ Melody A. Kramer Melody A. Kramer, Esq. J. Michael Kaler, Esq. Attorneys for Plaintiff

11.

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Roger G. Perkins Angela Kim Kristina M. Pfeifer MORRIS POLICH & PURDY LLP 501 West Broadway, Suite 500 San Diego, California 92101 [email protected] [email protected] [email protected] Orlando F. Cabanday HENNELLY & GROSSFELD LLP 4640 Admiralty Way, Suite 850 Marina del Rey, CA 90292 Telephone: (310) 305-2100 Facsimile: (310) 305-2116 [email protected] Robert S. Mallin Brinks Hofer Gilson & Lione NBC Tower 455 N City Front Plaza Drive Suite 3600 Chicago, IL 60611 [email protected] PERSON(S) SERVED

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. On Tuesday, September 02, 2008, I served the following documents: FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT

PARTY(IES) SERVED Emerson Electric Co., Ridge Tool Co., and Ridgid, Inc., One World Technologies, Inc.

METHOD OF SERVICE Email - Pleadings Filed with the Court via ECF

Emerson Electric Co., Ridge Tool Co., and Ridgid, Inc.

Email - Pleadings Filed with the Court via ECF

Emerson Electric Co., Ridge Tool Co., and Ridgid, Inc., One World Technologies, Inc.

Email - Pleadings Filed with the Court via ECF

(Personal Service) I caused to be personally served in a sealed envelope hand-delivered to the office of counsel during regular business hours.

12.

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(Federal Express) I deposited or caused to be deposited today with Federal Express in a sealed envelope containing a true copy of the foregoing documents with fees fully prepaid addressed to the above noted addressee for overnight delivery. (Facsimile) I caused a true copy of the foregoing documents to be transmitted by facsimile machine to the above noted addressees. The facsimile transmissions were reported as complete and without error. (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. (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. (U.S. Mail) I mailed a true copy of the foregoing documents to a mail address represented to be the correct mail address for the above noted addressee. I declare that the foregoing is true and correct, and that this declaration was executed on Tuesday, September 02, 2008, in San Diego, California.

X

/s/ Melody A. Kramer Melody A. Kramer