Case 1:17-cv-00299 Document 1 Filed 04/07/17 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

GETAGADGET, LLC,

Plaintiff,

v. 1:17-cv-00299
Civil Action No. ____________

EVERGREEN ENTERPRISES OF
VIRGINIA, LLC, JURY TRIAL DEMANDED

Defendant.

ORIGINAL COMPLAINT

Plaintiff, Getagadget, LLC ("Getagadget"), files this Original Complaint against

Defendant, Evergreen Enterprises of Virginia, LLC (Evergreen), and for cause of action

would show the Court as follows:

I. PARTIES

1. Plaintiff, Getagadget, LLC, is a Texas limited liability company with its

principle place of business at 6406 Burleson Rd., Suite #120, Austin, Texas 78744.

2. Upon information and belief, Defendant, Evergreen Enterprises of Virginia,

LLC, is a Delaware limited liability company with its principal place of business at 5915

Midlothian Turnpike, Richmond, Virginia 23225. Evergreen manufactures, uses, sells,

and/or offers to sell in the United States, and/or imports into the United States, bottle

openers. Evergreens bottle openers are marketed, offered for sale, and/or sold

throughout the United States, including within the State of Texas.

II. JURISDICTION AND VENUE

3. This is an action arising under the patent laws of the United States, 35

U.S.C. 101 et seq. This Court has exclusive subject matter jurisdiction under 28

ORIGINAL COMPLAINT Page 1 of 8

 Case 1:17-cv-00299 Document 1 Filed 04/07/17 Page 2 of 8

U.S.C. 1331 and 1338.

4. This Court has personal jurisdiction over Defendant Evergreen for at least

the following reasons: (i) Evergreen regularly transacts and solicits business, engages

in other persistent course of conduct, and/or derives substantial revenue from products

and/or services provided to individuals in the State of Texas; (ii) Evergreen has

purposefully established substantial, systematic and continuous contacts with Texas and

expects or should reasonably expect to be subjected to this Courts jurisdiction; and (iii)

Evergreen, directly or through subsidiaries or intermediaries (including distributors,

retailers and others), sells or offers for sale the infringing products in Texas.

5. Venue is proper in the Western District of Texas under 28 U.S.C.

1391(b)-(d) and 1400.

III. THE 790 PATENT

6. United States Patent No. D611,790 (the 790 Patent), titled Shark Body

Bottle Opener, was duly and legally issued after full and fair examination to inventor

James Douglas Welch, on March 16, 2010, and a copy of the 790 Patent is attached

hereto as Exhibit A.

7. Plaintiff Getagadget owns by assignment the entire right, title and interest

in the 790 Patent.

IV. FACTUAL BACKGROUND

8. Getagadget is a leader in bottle openers, as well as novelty products and

other items. The inventor of the 790 Patent is an owner of Getagadget.

9. Evergreen is and/or has been making, using, selling, and/or offering to sell

products in the United States, and/or importing into the United States, including, but not

ORIGINAL COMPLAINT Page 2 of 8

 Case 1:17-cv-00299 Document 1 Filed 04/07/17 Page 3 of 8

limited to, products identified by Evergreen as Shark Bottle Opener ERGRN 16 3236113

(the Bottle Opener Products), which infringe the claim of the 790 Patent.

10. Evergreen has not obtained a license under the 790 Patent.

Count 1 DIRECT INFRINGEMENT OF THE 790 PATENT

11. Getagadget repeats and realleges the allegations in paragraphs 1-10 as

though fully set forth herein. As described below, Evergreen has infringed and/or

continues to infringe the 790 Patent.

12. Evergreens making, using, selling, and/or offering to sell in the United

States, and/or importing into the United States, the Bottle Opener Products infringes the

claim of the 790 Patent.

ORIGINAL COMPLAINT Page 3 of 8

 Case 1:17-cv-00299 Document 1 Filed 04/07/17 Page 4 of 8

13. Evergreens infringement is illustrated in the side-by-side comparisons of

the 790 Patent to Evergreens Bottle Opener Products, shown below:

790 Patent Evergreen Bottle Opener Products

ORIGINAL COMPLAINT Page 4 of 8

 Case 1:17-cv-00299 Document 1 Filed 04/07/17 Page 5 of 8

14. Accordingly, Evergreen infringed and continues to infringe the 790 Patent

by making, using, selling and/or offering to sell in the United States, and/or importing into

the United States, one or more of the Bottle Opener Products identified in this Complaint,

which embody the design covered by the 790 Patent.

15. Getagadget is entitled to recover from Evergreen for its acts and practices

of infringement the damages sustained as a result of Evergreens wrongful acts in an

amount subject to proof at trial.

16. Getagadget is entitled to recover from Evergreen for its acts and practices

of infringement the total profits of Evergreen as a result of its wrongful acts in an amount

subject to proof at trial.

17. In addition, the infringing acts and practices of Evergreen have caused, are

causing, and unless such acts and practices are enjoined by the Court, will continue to

cause immediate and irreparable harm to Getagadget for which there is no adequate

remedy at law, and for which Getagadget is entitled to injunctive relief under 35 U.S.C.

283.

18. Evergreen received actual notice of its infringement of the 790 Patent, at

least by way of this Complaint.

Count 4 INDUCED INFRINGEMENT OF THE 790 PATENT

19. Getagadget repeats and realleges the allegations in paragraphs 1-18 as

though fully set forth herein. As described below, Evergreen has induced and/or

continues to induce infringement of the 790 Patent.

20. Evergreen also indirectly infringes the 790 Patent. Evergreen has willfully

ORIGINAL COMPLAINT Page 5 of 8

 Case 1:17-cv-00299 Document 1 Filed 04/07/17 Page 6 of 8

contributed to and has induced direct infringement of the 790 Patent by offering and

selling Bottle Opener Products through distributers, retailers, and or end users that, upon

sale or use, will directly infringe the 790 Patent.

21. Evergreen indirectly infringes the claim of the 790 Patent by inducing the

direct infringement of others, including, without limitation, distributors and purchasers of

the Bottle Opener Products, in accordance with 35 U.S.C. 271(b).

22. Evergreen had actual notice of the 790 Patent, at least by way of this

Complaint.

23. Evergreens affirmative acts of offering for sale and selling the Bottle

Opener Products will induce distributors and purchasers of the Bottle Opener Products,

through the normal and intended distribution and use of the Bottle Opener Products, to

infringe the 790 Patent. Accordingly, Evergreen performed the acts that constitute

induced infringement, and would induce actual infringement, with the knowledge of the

790 Patent and with the specific intent, knowledge or willful blindness that the induced

acts would constitute infringement.

DEMAND FOR JURY TRIAL

Getagadget hereby demands a trial by jury on all issues so triable.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Getagadget respectfully requests that this Court enter

judgment in its favor and grant the following relief:

A. Adjudge that Defendant Evergreen infringes the 790 Patent;

B. A judgment and order requiring Evergreen to pay Getagadget all damages

caused by Evergreens infringement of the 790 Patent, pursuant to 35

ORIGINAL COMPLAINT Page 6 of 8

 Case 1:17-cv-00299 Document 1 Filed 04/07/17 Page 7 of 8

U.S.C. 284, or requiring Evergreen to pay Getagadget the total profit

made by Evergreen from its infringement of the 790 Patent, pursuant to 35

U.S.C. 289;

C. A judgment and order requiring Evergreen to pay Getagadget increased

damages up to three times the amount found or assessed against

Evergreen for infringement of the 790 Patent, pursuant to 35 U.S.C. 284;

D. An order against Evergreen for an accounting of profits in respect of the

790 Patent;

E. Enter a preliminary injunction, and following trial, a permanent injunction

enjoining Defendant Evergreen, together with any and all parent or affiliated

companies or corporations, and all officers, directors, agents, servants,

employees, distributors, attorneys and all others acting in privity or through

them, from further acts of infringement of the 790 Patent;

F. A judgment and order requiring Evergreen to pay Getagadget pre-judgment

and post-judgment interest to the full extent allowed under the law;

G. A judgment and order requiring Evergreen to pay Getagadget supplemental

damages or profits for any continuing post-verdict infringement up until entry

of the final judgment, with an accounting, as needed;

H. A determination that this action is an exceptional case pursuant to 35 U.S.C.

285.

I. An award of Getagadgets attorneys fees for bringing and prosecuting this

action;

J. An award of Getagadgets costs and expenses incurred in bringing and

ORIGINAL COMPLAINT Page 7 of 8

 Case 1:17-cv-00299 Document 1 Filed 04/07/17 Page 8 of 8

prosecuting this action; and

K. Such further and additional relief as the Court may deem appropriate and

just under the circumstances.

Dated: April 7, 2017 Respectfully submitted,

THE LAW FIRM OF H. DALE LANGLEY, JR., PC

___/s/ H. Dale Langley, Jr./___________

H. Dale Langley, Jr.
Texas Bar No.11918100
1803 West Avenue
Austin, TX 78701
Telephone: (512) 477-3830
Fax: (512) 597-4775
dlangley@iptechlaw.com

MATTHEW J. BOOTH & ASSOCIATES, PLLC

Matthew J. Booth
Texas Bar No. 02648300
5501A Balcones Dr. STE 301
Austin, TX 78731-4907
Telephone: (512) 474-8488
Fax: (512) 474-7996
matthew.booth@boothlaw.com

ATTORNEYS FOR PLAINTIFF

GETAGADGET, LLC

ORIGINAL COMPLAINT Page 8 of 8

Case 1:17-cv-00299 Document 1-1 Filed 04/07/17 Page 1 of 4

EXHIBIT A
 Case 1:17-cv-00299 Document 1-1 Filed 04/07/17 Page 2 of 4
USO0D611790S

(12) Unlted States Deslgn Patent (10) Patent N0.: US D611,790 S

Welch (45) Date of Patent: 11* *Mar. 16, 2010

(54) SHARK BODY BOTTLE OPENER D504,290 S * 4/2005 Lockhart .................... .. D8/38
D505,846 S * 6/2005 Toma ... ... .. . . . .. D8/38

Inventor: James Douglas welchsAustins D557,090 S * 12/2007 Raia ........................... .. 138/38

* . .

(73) Assignee: Getagadoet Inc., Austin, TX (US) cued by exammer

Primary Examineriloel Sincavage
(*) Notice: This patent is subject to a terminal dis- Assistant ExaminerGzMh Rademaker
Claimer- (74) Attorney, Agent, or FirmiDaVid 0. Simmons
(**) Term: 14 Years (57) CLAIM

(21) APP1~ NOJ 29/314,429 The ornamental design for a shark body bottle opener, sub
stantiall as shoWn.
(22) Filed: Mar.30, 2009 y
51 LOC 9 Cl 07 99 DESCRIPTION
( ) ( ) . ................................................ .. - F1 G. 1 is a from View Ofa Shark body bottle Opener in accor
(52) US. Cl. ....................................................... .. D8/38 . . . _
, _ _ dance With the present 1nvent1on,
(58) Fleld 0f Classl?catlon Search .................. .. D8/l4,
138/1649 3343 88 89. 7/151. 81/307 FlG.2isabottomVieW ofthe sharkbodybottleopenershoWn
81/309,322, 3.29, 3.35, 3.37, 3.4, 3.55 1 FIG-1;
See application ?le for complete search history. FIG. 3 is a right side VieW of the shark body bottle opener
_ shoWn in FIG. 1, the left side VieW being a mirror image
(56) References Clted thereof.
U.S. PATENT DOCUMENTS FIG. 4 is a front VieW of the shark body bottle opener shoWn
D87,212 s * 6/1932 Halvorsen ................... .. 138/38 1 FIG 1; and
D279,645 S * 7/1985 Makris ....................... .. D8/38 FIG. 5 is arear View of the shark body bottle opener shown in
D3l3,732 S * l/l99l Adcock ...................... .. D8/38 FIG. 1.
D334,696 S * 4/1993 Makris ......... .. D8/38 - - - -

13433899 s * 11/2000 Saffron et a1. 138/38 Thgtlroken hnis (?lfllctfpvlrannemal SubJeCt matter only
13440,134 s * 4/2001 BriX-Hansen 138/33 an Orm no Pa 0 e C alme eslgn'
D45l,774 S * l2/200l Kelleghan ..... .. D8/38
D500,648 S * l/2005 Kelleghan ................... .. D8/38 1 Claim, 2 Drawing Sheets
 Case 1:17-cv-00299 Document 1-1 Filed 04/07/17 Page 3 of 4

US. Patent Mar. 16, 2010 Sheet 1 012 US D611,790 S

 Case 1:17-cv-00299 Document 1-1 Filed 04/07/17 Page 4 of 4

US. Patent Mar. 16, 2010 Sheet 2 of2 US D611,790 S

JS 44 (Rev. 12/12)
Case 1:17-cv-00299 Document 1-2 Filed 04/07/17 Page 1 of 2
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

EVERGREEN ENTERPRISES OF VIRGINIA, LLC
GETAGADGET, LLC

(b) County of Residence of First Listed Plaintiff TRAVIS County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
H. Dale Langley, Jr., The Law Firm of H.Dale Langley, Jr., PC, 1803
West Avenue, Austin, Texas 78701 (512)477-3830
Matthew J. Booth, Matthew J. Booth & Associates, PLLC (512)474-8488

II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an X in One Box Only)
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 400 State Reapportionment
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 410 Antitrust
140 Negotiable Instrument Liability 367 Health Care/ 430 Banks and Banking
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 450 Commerce
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 460 Deportation
151 Medicare Act 330 Federal Employers Product Liability 830 Patent 470 Racketeer Influenced and
152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark Corrupt Organizations
Student Loans 340 Marine Injury Product 480 Consumer Credit
(Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY 490 Cable/Sat TV
153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 850 Securities/Commodities/
of Veterans Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) Exchange
160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g)) 890 Other Statutory Actions
190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI 891 Agricultural Acts
195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g)) 893 Environmental Matters
196 Franchise Injury 385 Property Damage 751 Family and Medical 895 Freedom of Information
362 Personal Injury - Product Liability Leave Act Act
Medical Malpractice 790 Other Labor Litigation 896 Arbitration
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS 899 Administrative Procedure
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff Act/Review or Appeal of
220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) Agency Decision
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRSThird Party 950 Constitutionality of
240 Torts to Land 443 Housing/ Sentence 26 USC 7609 State Statutes
245 Tort Product Liability Accommodations 530 General
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION
Employment Other: 462 Naturalization Application
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration
Other 550 Civil Rights Actions
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an X in One Box Only)
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. 271
VI. CAUSE OF ACTION Brief description of cause:
Patent Infringement
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
04/07/2017 /s/H. Dale Langley, Jr./
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Print Save As... Reset

JS 44 Reverse (Rev. 12/12) Case 1:17-cv-00299 Document 1-2 Filed 04/07/17 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.

V. Origin. Place an "X" in one of the six boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.
When this box is checked, do not check (5) above.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.