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Case 6:18-cv-00267

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION

 

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AMG PRODUCTS, INC. D/B/A AMG

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DEVELOPMENT

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AND PAUL SMITH

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Civ. Action No. 6:18-cv-267

Plaintiffs,

§

§

v.

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JURY TRIAL DEMANDED

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WALGREEN CO., DIRT CHEAP LLC,

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CHANNEL CONTROL MERCHANTS OF

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TEXAS, LLC, and

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FRY’S ELECTRONICS,

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Defendants.

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COMPLAINT FOR PATENT INFRINGEMENT

Plaintiffs AMG Products, Inc. d/b/a AMG Development (“AMG”) and Paul Smith

(“Plaintiffs”), by counsel, file this Complaint against Defendants Walgreen Co., Dirt Cheap LLC,

Channel Control Merchants of Texas, LLC, and Fry’s Electronics, (collectively, “Defendants”),

and in support thereof, state as follows:

NATURE OF THE ACTION

  • 1. This is a patent infringement action arising under the United States patent laws, 35

U.S.C. § 1, et seq., in which Plaintiffs assert infringement of U.S. Patent No. 6,902,289 by

Defendants’ manufacture, use, offer for sale, sale, or import in/into the United States of the product

known as “Atomic Beam Glove.” Plaintiffs are seeking an injunction prohibiting further sales of

the infringing product, as well as monetary damages and related remedies.

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THE PARTIES

  • 2. Plaintiff AMG Products, Inc. d/b/a AMG Development is a Nevada corporation

with its principal place of business at 500 N. Rainbow Blvd. #300, Las Vegas, Nevada 89107.

  • 3. Plaintiff Paul Smith is an individual residing at 42 Darling Parke Drive, Bangor

Maine 04401.

  • 4. Defendant Walgreen Co. (“Walgreens”) is a corporation organized under the laws

of the State of Delaware with its principal place of business at 200 Wilmot Rd, Deerfield, IL

60015-4681. Walgreens sells products, such as the accused “Atomic Beam Glove” product,

through its stores throughout the country, including in the Eastern District of Texas.

  • 5. Defendants Dirt Cheap, LLC and Channel Control Merchants of Texas, LLC (“Dirt

Cheap”) are limited liability companies that are doing business through retail stores as “Dirt

Cheap” with their principal place of business at 6892 US Hwy 49 North, Hattiesburg, MS, 39403.

Dirt Cheap sells products, such as the accused “Atomic Beam Glove” product, through its retail

stores throughout the country, including in the Eastern District of Texas.

  • 6. Defendant Fry’s Electronics (“Fry’s”) is a corporation organized under the laws of

the State of California with its principal place of business at 600 E. Brokaw Rd., San Jose, CA,

95112-1006. Fry’s sells products, such as the accused “Atomic Beam Glove” product, through its

stores throughout the country, including in the Eastern District of Texas.

JURISDICTION AND VENUE

  • 1. This is a civil action for patent infringement arising under the United States patent

statutes, 35 U.S.C. § 1, et seq.

  • 2. This Court has jurisdiction over the subject matter of this action under 28 U.S.C.

§§ 1331 and 1338(a).

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  • 3. Defendants are subject to this Court’s personal jurisdiction because they do and

have done substantial business in this judicial district. In addition, upon information and belief,

Defendants regularly sell products in Texas and specifically in the Eastern District of Texas.

Defendants are subject to the general jurisdiction of this Court because they have regular and

systematic contacts with this forum such that the exercise of jurisdiction over it would not offend

traditional notions of fair play and substantial justice.

  • 4. Venue is proper in this judicial district under 28 U.S.C. § 1400(b). Defendants have

committed one or more infringing acts in this District. All of these Defendants are selling or have

sold the accused product in the Eastern District of Texas. Upon information and belief, Defendants

“reside” in this District because (1) there are physical places of Defendants’ businesses in this

District; specifically, Defendants have and operate retail stores located in this District, (2)

Defendants’ businesses in this District are regular and established, and (3) Defendants have places

of business operating their stores and selling the infringing products in this District.

THE PATENT-IN-SUIT

  • 5. On June 7, 2005, the United States Patent and Trademark Office (“USPTO”) duly

and legally issued to assignee 4 th Day Enterprises, LLC United States Patent No. 6,902,289 B1

(“the ‘289 Patent”), entitled “ILLUMINATED HAND COVER ASSEMBLY.” A copy of the

‘289 Patent is attached as Exhibit A.

  • 6. Paul Smith is the owner of the ‘289 Patent by assignment and has standing to sue

for infringement.

  • 7. AMG Products, Inc. d/b/a AMG Development is the exclusive licensee of the ‘289

Patent and has standing to sue for infringement.

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FACTS

  • 8. Dr. Paul Smith is the inventor of an innovative glove product marketed under the

name “Glovelite.” The idea for Glovelite was created by Dr. Smith while flying at night in a small

private aircraft. In the aircraft, the gauges on the instrument panel were illuminated, but the

switches and other areas were not. Dr. Smith set out to solve that problem by testing different

products already on the market to no avail. So, Dr. Smith created a solution. He developed the

Glovelite concept by integrating small LED lights into a hand covering similar to a bicycle glove.

  • 9. Dr. Smith then applied for a patent to protect his idea in 2003, and subsequently the

‘282 Patent issued on June 7, 2005. The originally filed claims were allowed without any

amendment to overcome prior art, and later filed claims, filed during prosecution, were also

allowed without any amendment to overcome prior art.

  • 10. The Glovelite product was developed, manufactured and later sold on QVC,

Sporty’s, Flyboys, Wing’s Aviation, As Seen On TV, and at various trade shows. In 2012,

Glovelite was recognized at the National Hardware Show in Las Vegas and received the Most

Innovative Product award.

  • 11. Plaintiffs invested significant time and monetary resources in developing, creating,

manufacturing, and marketing Glovelite.

  • 12. In February of 2018, Dr. Smith was approached by a colleague who commented

about seeing Glovelite in a retail store. Knowing that could not have been his product, Glovelite,

Dr. Smith looked online at the store’s website and saw an identical product called Atomic Beam.

  • 13. Below is a side by side photo comparison of the two products.

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Case 6:18-cv-00267 Document 1 Filed 06/11/18 Page 5 of 8 PageID #: 5 Glovelite – Backhand
Case 6:18-cv-00267 Document 1 Filed 06/11/18 Page 5 of 8 PageID #: 5 Glovelite – Backhand

Glovelite – Backhand View

Atomic Beam – Backhand View

Case 6:18-cv-00267 Document 1 Filed 06/11/18 Page 5 of 8 PageID #: 5 Glovelite – Backhand
Case 6:18-cv-00267 Document 1 Filed 06/11/18 Page 5 of 8 PageID #: 5 Glovelite – Backhand

Glovelite – Palm View

Atomic Beam – Palm View

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  • 14. Dr. Smith went to the company’s website who manufactured the product

(Telebrands Corp. and Bulbhead) and reviewed their website to learn more about this “copycat”

product. On the website he saw a commercial for Atomic Beam which was identical to a

commercial that he had for Glovelite.

  • 15. Plaintiffs have attempted to sell Glovelite to Walgreen’s only to be turned down

and then find that Walgreens is selling the copycat product, Atomic Beam.

  • 16. The Atomic Beam glove is sold by the Defendants in various retail store locations,

including Tyler, Texas, in the Eastern District of Texas.

COUNT I

INFRINGEMENT OF THE ‘289 PATENT

  • 17. Plaintiffs reallege and incorporate by reference all of the above paragraphs of this

complaint as if fully set forth herein.

  • 18. Plaintiffs are the inventor and exclusive licensee of the entire right, title, and interest

in the ‘289 Patent.

  • 19. Defendants have and continue to directly infringe the ‘289 Patent by importing,

distributing, offering to sell, and/or selling in the United States the Atomic Beam Glove product,

which embodies the design covered by the ‘289 Patent. Defendants’ infringing activities violate

35 U.S.C. § 271.

  • 20. By making, using, offering for sale, and/or selling the Atomic Beam Glove product,

Defendants have injured Plaintiffs are liable to Plaintiffs for infringement of the ‘289 patent

pursuant to 35 U.S.C. § 271 directly and/or under the doctrine of equivalents.

  • 21. Defendants have and continue to indirectly infringe the ‘289 Patent by knowingly

and intentionally inducing others, including Defendants’ customers and end users, to directly

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infringe, either literally or under the doctrine of equivalents, by importing, distributing, offering to

sell, and/or selling in the United States the Atomic Beam Glove product, which embodies the

design covered by the ‘289 Patent.

  • 22. Defendants’ infringement of the ‘289 Patent is willful.

  • 23. Plaintiffs are, and will continue to be, damaged and irreparably harmed by

Defendants’ direct and indirect infringement, which will continue unless Defendants are enjoined

by this Court.

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs respectfully request the following relief against Defendants:

  • A. A judgment holding Defendants liable for infringement of the ‘289 Patent.

  • B. A temporary restraining order, preliminary injunction, and permanent injunction

against Defendants, their officers, agents, servants, employees, attorneys, parent and subsidiary

corporations, assigns and successors in interest, and those persons in active concert or participation

with them, enjoining them from continued acts of infringement of the ‘289 Patent, including

without limitation, an injunction against offers for sale and future sales of the infringing product

or any colorable imitation thereof;

  • C. A judgment that the ‘289 Patent is duly and legally issued, valid, and enforceable;

  • D. An accounting for damages and an award of damages adequate to compensate for

Defendants’ infringement of the ‘289 Patent, and in no event less than a reasonable royalty for

Defendants’ acts of infringement, including all pre-judgment and post-judgment interest at the

maximum rate permitted by law;

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  • E. Restitutionary relief against Defendants in favor of Plaintiffs, including

disgorgement of wrongfully obtained profits pursuant to 35 U.S.C. § 289 and any other appropriate

relief;

  • F. A judgment holding that Defendants’ infringement of the ‘289 Patent is willful and

a trebling of damages pursuant to 35 U.S.C. § 284;

  • G. A judgment holding that this action is an exceptional case and an award to Plaintiffs

for their attorney’s fees and costs pursuant to 35 U.S.C. § 285 and other authority;

  • H. A judgment that Plaintiffs be awarded their costs incurred herein; and

  • I. Such other relief as the Court deems just and equitable.

DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38, Plaintiffs hereby demand a trial by jury.

Dated: June 11, 2018

Respectfully submitted,

/s/ Eric H. Findlay _______

Eric H. Findlay State Bar No. 00789886 Brian Craft State Bar No. 04972020 Debby Gunter State Bar No. 24012752 Findlay Craft, P.C. 102 N. College Ave, Ste 900 Tyler, TX 75702 903-534-1100 (t) 903-534-1137 (f) efindlay@findlaycraft.com bcraft@findlaycraft.com dgunter@findlaycraft.com

COUNSEL FOR PLAINTIFFS AMG PRODUCTS, INC. D/B/A AMG DEVELOPMENT AND PAUL SMITH

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EXHIBIT A

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JS 44

(Rev. 06/17)

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CIVIL COVER SHEET

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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

 

(b)

County of Residence of First Listed Plaintiff

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)

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

IV.

NATURE OF SUIT (Place an “X” in One Box Only)

     

Foreign Country

         
 

CONTRACT

       

TORTS

       

FORFEITURE/PENALTY

     

BANKRUPTCY

   

OTHER STATUTES

 

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise

PERSONAL INJURY

310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers’ Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury - Medical Malpractice

PERSONAL INJURY

365 Personal Injury - Product Liability

367 Health Care/ Pharmaceutical Personal Injury Product Liability 368 Asbestos Personal

Injury Product Liability PERSONAL PROPERTY 370 Other Fraud

371 Truth in Lending

380 Other Personal Property Damage 385 Property Damage Product Liability

625 Drug Related Seizure of Property 21 USC 881 690 Other

LABOR

710 Fair Labor Standards Act 720 Labor/Management Relations 740 Railway Labor Act 751 Family and Medical

 

422 Appeal 28 USC 158 423 Withdrawal

28

USC 157

PROPERTY RIGHTS

820 Copyrights 830 Patent 835 Patent - Abbreviated New Drug Application 840 Trademark

SOCIAL SECURITY

861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))

375 False Claims Act 376 Qui Tam (31 USC

3729(a))

400 State Reapportionment

410 Antitrust

430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and

Corrupt Organizations

480 Consumer Credit

490 Cable/Sat TV 850 Securities/Commodities/ Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters

895 Freedom of Information

REAL PROPERTY

210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

CIVIL RIGHTS

440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities - Employment 446 Amer. w/Disabilities - Other 448 Education

PRISONER PETITIONS

Habeas Corpus:

463 Alien Detainee 510 Motions to Vacate Sentence 530 General 535 Death Penalty Other:

540 Mandamus & Other 550 Civil Rights 555 Prison Condition

Leave Act 790 Other Labor Litigation 791 Employee Retirement Income Security Act

IMMIGRATION

462 Naturalization Application 465 Other Immigration Actions

FEDERAL TAX SUITS

870 Taxes (U.S. Plaintiff or Defendant) 871 IRS—Third Party

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USC 7609

 

Act

896 Arbitration 899 Administrative Procedure Act/Review or Appeal of

Agency Decision

950 Constitutionality of

State Statutes

             

560 Civil Detainee -

                                       

V.

ORIGIN (Place an “X” in One Box Only)

   

Conditions of Confinement

                                       

1

Original

2

Removed from

3

Remanded from

4 Reinstated or

5 Transferred from

(specify)

 

6

Multidistrict

 

8 Multidistrict

 
 

Proceeding

 

State Court

   

Appellate Court

Reopened

 

Another District

     

Litigation -

Transfer

 

Litigation - Direct File

 
       

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

                   

VI. CAUSE OF ACTION

       

Brief description of cause:

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) IF ANY

(See instructions):

JUDGE

DOCKET NUMBER

 

DATE

           

SIGNATURE OF ATTORNEY OF RECORD

                                   
 

FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

     

APPLYING IFP

       

JUDGE

           

MAG. JUDGE

             
                             

JS 44 Reverse (Rev. 06/17)

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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 there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable. Click here for: Nature of Suit Code Descriptions.

V.

Origin. Place an "X" in one of the seven 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 – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statue.

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.