William L. Mentlik Roy H.

Wepner LERNER, DAVID, LITTENBERG, KRUMHOLZ & MENTLIK, LLP 600 South Avenue West Westfield, NJ 07090-1497 Tel:908.654.5000 Fax:908.654.7866 Attorneys for Plaintiff Waddington North America, Inc. Document Filed Electronically

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY WADDINGTON NORTH AMERICA, INC., v. EMI YOSHI, INC., Defendant. Plaintiff, : : : : : : : : x Civil Action No. District Judge Magistrate Judge

COMPLAINT FOR PATENT INFRINGEMENT AND DEMAND FOR TRIAL BY JURY Plaintiff Waddington North America, Inc. ("Waddington"), by its undersigned attorneys, as and for its complaint against defendant EMI Yoshi, Inc. ("Yoshi"), hereby alleges as follows: Nature Of The Action 1. This is an action for infringement by Yoshi of U.S. Patent No. 5,842,590, entitled

"Bi-Nestable Margarita Glass Apparatus and Method," U.S. Patent No. 5,996,825, entitled "Bi-Nestable Container For Consumables," and reexamined U.S. Patent No. 6,983,542, entitled "Metallized Cutlery and Tableware."

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Parties 2. Waddington is a corporation organized and existing under the laws of the

Commonwealth of Massachusetts, having its principal place of business at 6 Stuart Road, Chelmsford, Massachusetts 01824. 3. Waddington is a leading manufacturer of a broad line of upscale plastic

disposable tableware and packaging, including bowls, containers, coffee mugs, cutlery, lids, pitchers, margarita, martini, and shot glasses, plates, serving trays, serving utensils, serving ware, souvenir cups, stemware, tumblers, and wrapped lodging cups. The Waddington products here at issue provide the elegance and feel of fine crystal and flatware while eliminating breakage worries and reducing labor costs associated with cleanup, washing, and transportation. 4. Waddington markets its products to caterers, casinos, supermarkets, party goods

stores, online and brick-and-mortar retailers, restaurants, hotels/motels/resorts, convenience stores, amusement parks, nightclubs, bars, ice cream operators, warehouse stores, stadiums/arenas, and country clubs. 5. Yoshi is a corporation organized and existing under the laws of the State of

New Jersey, having its principal place of business at 1200 Jersey Avenue, North Brunswick, New Jersey 08902. Jurisdiction And Venue 6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

1331 and 1338(a). 7. This Court has personal jurisdiction over Yoshi because Yoshi resides in the State

of New Jersey and in this judicial district; has committed acts of infringement within the State of New Jersey and within this judicial district; and is subject to the personal jurisdiction of this

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Court pursuant to the laws of the State of New Jersey and Rule 4 of the Federal Rules of Civil Procedure. 8. and 1400(b). FIRST CLAIM FOR RELIEF Infringement Of U.S. Patent No. 5,842,590 By Yoshi Margarita Glasses 9. Waddington repeats and realleges the allegations set forth in paragraphs 1-8 Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b) and (c)

above as if set forth in full herein. 10. In the 1990s, Waddington and its employees invented, created, and developed a

line of two-piece plastic containers particularly desirable for serving margaritas, martinis, and other cocktails. These containers include a receptacle portion and a nestable base portion. 11. Waddington manufactures in the United States, markets, and sells two-piece

plastic margarita and martini glasses employing the foregoing invention under the brand COMET, which glasses have been widely accepted in the marketplace and have enjoined extensive commercial success. 12. On December 1, 1998, U.S. Patent No. 5,842,590 ("the '590 Patent") was duly and

lawfully issued naming as inventors David Gordon, James Falzarano, and Alfred P. Madonna. A true copy of the '590 Patent is annexed hereto as Exhibit A. 13. Waddington is and has at all pertinent times been the owner by assignment from

the foregoing inventors of the '590 Patent, which patent has not lapsed or expired. 14. Waddington has complied with the statutory requirement of placing a notice of

the '590 Patent on all packages of its patented COMET margarita and martini plastic glasses it sells in the United States.

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15.

Commencing at a time as yet unknown, Yoshi began importing into and offering

for sale and selling in the United States a line of glasses, including at least two-piece plastic margarita glasses under the trademark RESPOSABLES, which are made in China and which infringe the '590 Patent. Yoshi's infringing margarita glasses include glasses sold bearing UPC code no. 7 34592 60122 1 and Yoshi product code MGG12, as well as a version with a green base bearing Yoshi product code MGG12G. Annexed hereto as Exhibit B are pages from

Yoshi's website illustrating Yoshi's aforesaid infringing RESPOSABLES margarita glasses. 16. '590 Patent. 17. By letter dated November 23, 2011, through its counsel, Yoshi expressed its The foregoing Yoshi margarita glasses literally infringe at least claims 7-12 of the

intention to cease manufacture of its margarita glasses in their current form. Upon information and belief, notwithstanding such assurance, Yoshi has continued to import and sell its infringing RESPOSABLES margarita glasses within the United States. 18. Yoshi's acts of infringement of the '590 Patent commenced and/or continue with

knowledge of Waddington's patent rights and without any legitimate defense to Waddington's claim of infringement. Accordingly, Yoshi's infringement of the '590 Patent has been and is willful and deliberate. 19. Waddington has been damaged and is being damaged by Yoshi's acts of

infringement of the '590 Patent as aforesaid in an amount that is not yet ascertainable. 20. Waddington is being irreparably harmed and damaged by Yoshi's acts of

infringement as aforesaid, such that Waddington has no adequate remedy at law. WHEREFORE, Waddington respectfully requests the following relief on this claim:

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A.

a declaration that the '590 Patent is valid and has been infringed and is being

infringed by Yoshi; B. a preliminary and permanent injunction enjoining Yoshi, its officers, agents,

servants, employees, attorneys, and those in active concert or participation with them who receive actual notice of the order by personal service or otherwise, from infringing the '590 Patent; C. an award of damages adequate to compensate for Yoshi's infringement, but in no

event less than a reasonable royalty, such damages to be trebled pursuant to the provisions of 35 U.S.C. 284; D. E. an award of Waddington's costs; a declaration that Yoshi's conduct renders this action "exceptional" and an award

of Waddington's reasonable attorney fees; and F. such other and further relief as the Court may deem just and proper. SECOND CLAIM FOR RELIEF Infringement Of U.S. Patent No. 5,996,825 By Yoshi Margarita And Martini Glasses 21. Waddington repeats and realleges the allegations set forth in paragraphs 1-20

above as if set forth in full herein. 22. On December 7, 1999, U.S. Patent No. 5,996,825 ("the '825 Patent") was duly and

lawfully issued as a continuation of the '590 Patent naming as inventors David Gordon, James J. Falzarano, and Albert F. Madonna. Exhibit C. 23. Waddington is and has at all pertinent times been the owner by assignment from A true copy of the '825 Patent is annexed hereto as

the foregoing inventors of the '825 Patent, which patent has not lapsed or expired.

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24.

Waddington has complied with the statutory requirement of placing a notice of

the '825 Patent on all packages of its patented COMET margarita and martini plastic glasses it sells in the United States. 25. Commencing at a time as yet unknown, Yoshi began importing into and offering

for sale and selling in the United States a line of glasses, including at least two-piece plastic martini glasses under the trademark RESPOSABLES, which are made in China and which infringe the '825 Patent. Yoshi's infringing martini glasses include glasses sold bearing UPC code no. 7 34592 60082 8 and Yoshi product code MTG6, as well as a version with a blue base bearing Yoshi product code MTG6BL. Annexed hereto as Exhibit D are pages from Yoshi's website illustrating Yoshi's aforesaid infringing RESPOSABLES martini glasses product. 26. The foregoing Yoshi margarita glasses identified in Waddington's First Claim For

Relief and the martini glasses referred to in this Second Claim For Relief literally infringe at least claims 21, 22, 26, and 28-30 of the '825 Patent. 27. By letters dated March 20, 2008; June 16, 2008; August 13, 2008; and

November 30, 2009, Waddington advised Yoshi that Yoshi was infringing the '825 Patent. 28. By letter dated September 27, 2011, Waddington again advised Yoshi that it was

infringing the '825 Patent and demanded that Yoshi cease and desist from such infringement. 29. By letter dated November 23, 2011, through its counsel, Yoshi expressed its

intention to cease manufacture of its RESPOSABLES martini and margarita glasses in their current forms. Upon information and belief, notwithstanding such assurance, Yoshi has

continued to import and sell its infringing RESPOSABLES margarita and martini glasses within the United States.

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30.

Yoshi's acts of infringement of the '825 Patent commenced and/or continue with

knowledge of Waddington's patent rights and without any legitimate defense to Waddington's claim of infringement. Accordingly, Yoshi's infringement of the '825 Patent has been and is willful and deliberate. 31. Waddington has been damaged and is being damaged by Yoshi's acts of

infringement of the '825 Patent as aforesaid in an amount that is not yet ascertainable. 32. Waddington is being irreparably harmed and damaged by Yoshi's acts of

infringement as aforesaid, such that Waddington has no adequate remedy at law. WHEREFORE, Waddington respectfully requests the following relief on this claim: A. a declaration that the '825 Patent is valid and has been infringed and is being

infringed by Yoshi; B. a preliminary and permanent injunction enjoining Yoshi, its officers, agents,

servants, employees, attorneys, and those in active concert or participation with them who receive actual notice of the order by personal service or otherwise, from infringing the '825 Patent; C. an award of damages adequate to compensate for Yoshi's infringement, but in no

event less than a reasonable royalty, such damages to be trebled pursuant to the provisions of 35 U.S.C. 284; D. E. an award of Waddington's costs; a declaration that Yoshi's conduct renders this action "exceptional" and an award

of Waddington's reasonable attorney fees; and F. such other and further relief as the Court may deem just and proper.

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THIRD CLAIM FOR RELIEF Infringement Of The Reexamined '524 Patent 33. Waddington repeats and realleges the allegations set forth in paragraphs 1-32

above as if set forth in full herein. 34. Beginning early in the 21st Century, Waddington and its employees invented,

created, and developed a line of metallized plastic cutlery, kits, and serving utensils, for which Waddington spent over two years of extensive product, process, machinery, and materials development. Waddington launched its REFLECTIONS line of metallized cutlery, kits, and serving utensils in 2003 to great industry acclaim. Waddington's REFLECTIONS products, while disposable, provide the same silver sheen as stainless steel, along with durability and strength, to give consumers a unique and formal alternative to black, clear, and white disposables. Waddington's REFLECTIONS products, when introduced, provided a unique

solution addressing both the need for a formal presentation and the high costs associated with renting or owning permanent flatware, including cleaning, transporting, and replacing. 35. On January 10, 2006, U.S. Patent No. 6,983,542 ("the '542 Patent") was duly and

lawfully issued naming as inventors Ashish K. Mithal, David Gordon, Raymond Chan, Thomas E. Ellsworth, and William A. Gallop. A true copy of the '542 Patent is annexed hereto as Exhibit E. 36. On November 22, 2006, Waddington filed a request with the United States Patent

and Trademark Office ("PTO") to reexamine the '542 Patent. On September 22, 2009, the PTO issued Reexamination Certificate No. US 6,983,542 C1 ("the '542 C1 Reexam Certificate"), in which the PTO held, inter alia, that claims 1-17, 19-25, 32, and 34-37, as amended during the '337 Reexamination, were patentable over all prior art of record, and that new claims 38-48,

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which had been added during the reexamination, were patentable over all prior art of record. A true copy of the '542 C1 Reexam Certificate is annexed hereto as Exhibit F. 37. Waddington is and has at all pertinent times been the owner by assignment from

the foregoing inventors of the '542 Patent, as amended by the '542 C1 Reexam Certificate, which patent has not lapsed or expired. 38. On September 23, 2009, Waddington commenced an action for infringement of

the reexamined '542 Patent in this Court styled Waddington North America, Inc. v. Sabert Corporation, Civil Action No. 09-4883. On September 20, 2011, this Court entered a judgment that claims 1, 3, 12, 25, 35, and 38 of the reexamined '542 Patent are not invalid and that the reexamined '542 Patent is not unenforceable. 39. Waddington has complied with the statutory requirement of placing a notice of

the '542 Patent on all packages of its patented REFLECTIONS metallized cutlery it manufactures and/or sells in the United States. 40. By letter dated November 30, 2009, Waddington advised Yoshi of the recent

issuance of the '542 C1 Reexam Certificate and placed Yoshi on notice that any infringement of Waddington's patent rights will be the subject of appropriate action to be taken by Waddington in an appropriate forum. 41. Commencing at a time as yet unknown, but believed to be January 2011, Yoshi

has been importing and offering for sale and selling in the United States metallized plastic cutlery and serving items under the brand name GLIMMERWARE. A copy of a

GLIMMERWARE brochure from Yoshi's website is annexed hereto as Exhibit G. 42. Yoshi's GLIMMERWARE cutlery and serving items literally infringe at least

claims 1, 3, 5, 12, 25, 35, and 38 of the reexamined '542 Patent.

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43.

By letter dated September 27, 2011, Waddington advised Yoshi that its

GLIMMERWARE plastic cutlery and serving items infringe the reexamined '542 Patent and demanded that Yoshi cease and desist. Yoshi has refused to do so. 44. Yoshi's acts of infringement commenced and/or continued with knowledge of

Waddington's patent rights, including knowledge that the amended and new claims in the '542 Reexamination Certificate were held patentable over the prior art. Accordingly, Yoshi's infringement of the reexamined '542 Patent is willful and deliberate. 45. Waddington has been damaged and is being damaged by Yoshi's acts of

infringement of the reexamined '542 Patent in an amount that is not yet ascertainable. 46. Waddington is being irreparably harmed and damaged by Yoshi's acts of

infringement as aforesaid, such that Waddington has no adequate remedy at law. WHEREFORE, Waddington respectfully requests the following relief on this claim: A. a declaration that the reexamined '542 Patent is valid and has been infringed and

is being infringed by Yoshi; B. a preliminary and permanent injunction enjoining Yoshi, its officers, agents,

servants, employees, attorneys, and those in active concert or participation with them who receive actual notice of the order by personal service or otherwise, from infringing the reexamined '542 Patent; C. an award of damages adequate to compensate for Yoshi's infringement, but in no

event less than a reasonable royalty, such damages to be trebled pursuant to the provisions of 35 U.S.C. 284; D. an award of Waddington's costs;

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E.

a declaration that Yoshi's conduct renders this action "exceptional" and an award

of Waddington's reasonable attorney fees; and F. such other and further relief as the Court may deem just and proper. JURY DEMAND Pursuant to Fed. R. Civ. P. 38(b), Waddington hereby demands a trial by a jury on all issues so triable. Respectfully submitted, LERNER, DAVID, LITTENBERG, KRUMHOLZ & MENTLIK, LLP Attorneys for Plaintiff Waddington North America, Inc. Dated: December 6, 2011 By: s/ Roy H. Wepner Roy H. Wepner Tel: 908.654.5000 E-mail:rwepner@ldlkm.com litigation@ldlkm.com

CERTIFICATION PURSUANT TO LOCAL CIVIL RULE 11.2 The undersigned attorney for plaintiff Waddington North America, Inc. hereby certifies, pursuant to Local Civil Rule 11.2, that U.S. Patent No. 6,983,542 is the subject of an inter partes reexamination request in the United States Patent and Trademark Office, filed on or about November 22, 2011. Other than the foregoing proceeding, the undersigned attorney hereby certifies that, to the best of his knowledge, the matter in controversy is not the subject of any other action pending in any court or agency or any arbitration. Dated:

December 6, 2011

LERNER, DAVID, LITTENBERG, KRUMHOLZ & MENTLIK, LLP Attorneys for Plaintiff Waddington North America, Inc. By: s/ Roy H. Wepner Roy H. Wepner Tel: 908.654.5000 E-mail:rwepner@ldlkm.com litigation@ldlkm.com

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