tempnology v. grabber

7/27/2019 Tempnology v. Grabber

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UNITED STATES DISTRICT COURTDISTRICT OF' NEW HAMPSHIRETEMPNOLOGY LLC,

Plaintif,Civil Action No.:

GRABBER, NC., JURY DEMANDEDDefendant

ORIGINAL COMPLAINT FOR PATENT INFRINGEMENTThe Plaintiff Tempnology, LLC ("Tempnology), by its undersigned attorneys, files this

Original Complaint against the Defendant Grabber, Inc. ("Defendant" or "Grabber"), demands atrial by jury and alleges as follows:

NATURE, OF ACTION1. This is an action for patent infringement arising under the Patent Laws of the

United States, 35 U.S.C. $ I et seq., and seeking damages and injunctive relief under 35 U.S.C.$$ 271 ,281,283-285.

THE PARTIES

2. Plaintiff Tempnology is a limited liability company organized under the laws ofthe State of New Hampshire, having its principal place of business at2l0 Commerce V/ay 100,Portsmouth, NH 03801.

3. On information and belief, Defendant Grabber is a corporation organized underthe laws of the State of Nevada, having a principal place of business at 5760 N. Hawkeye Ct.SW, Grand Rapids, MI49509.

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JURISDICTION AND VENUE4. This Court has subject matter jurisdiction over this controversy under 28 U.S.C.

$$ 1331 and 1338(a), and the Declaratory Judgment Act, 28 U.S.C, $$ 2201 and2202'5. This Court has personal jurisdiction over this controversy consistent with the Due

Process Clause and pursuant the New Hampshire Long Arm Statute because, on information andbelief, Defendant continuously, systematically, and purposefully conducts business within thisDistrict, such that the Defendant should reasonably anticipate being haled into court in thisjurisdiction.

6. Venue in this judicial district is proper under 28 U.S.C. $ l39l and/or 28 U.S.C.$1400. On information and belief, Defendant has transacted business in this district and hascommitted acts of patent infringement in this district, by the making, using, andlot selling ofproducts accused of infringement.

FACTUAL UND7. Plaintiff Tempnology is the owner of all right, title, and interest in and to United

States Patent No. 8,440,119 ("the'119 Patent" or the "patent-in-suit"). The patent-in-suit, ingeneral, claims a fabric for thermal management, including the cooling of an object, such as aperson's skin, and the related methods of making the same.

8. The '119 Patent is titled "PROCESS OF MAKING A FABRIC," and was filed onDecember 15, 2008, and duly and legally issued by the United States Patent and TrademarkOffice on May 14,2013. A true and correct copy of the '1 19 Patent is attached as Exhibit A.

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9. The patent-in-suit is currently in full force and effect and, in accordance with 35U.S.C. 282, the patent-in-suit, and each and every claim thereof, are presumed to be valid.

10. On information and beliet Defendant Grabber infringes one or more claims of thepatent-in-suit by the manufacture, importation, use, sale, and/or offer for sale of one or moreproducts it calls or describes under the trade name and mark "Magic Cool," through variousonline and in-store retailers, including but not limited to the Home Depot.

1 1. As a direct and proximate cause of the infringement by Grabber and unlessGrabber is enjoined by the Court from manufacturing, importing, offering to sell, selling, orusing within the United States products covered by the claims of the patent-in-suit, Tempnologyis being and will continue to be substantially and irreparably harmed in its business and propertyrights.

COUNT ONEPATENT INFRINGEMENT ('119 PATENTI

12. Tempnology incorporates by reference the allegations contained in Paragraphs l-12 of this Complaint as if fully set forth herein.

13. On information and beliet Defendant Grabber has, without license fromTempnology, infringed, and will continue to infringe, by the making, use, sale and/or offer forsale of Magic Cool under 35 U.S.C. 5 271(a) and (g).

14. As a direct and proximate consequence of the acts and practices of Defendant,Tempnology has been, is being and, unless such acts and practices are enjoined by the Court, willcontinue to be injured in its business and property rights, and has suffered, is suffering, and willcontinue to suffer injury and damages for which it is entitled to relief under 35 U.S.C. $ 284.

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15. As a direct and proximate consequence of the acts and practices of Defendant,Defendant has also caused, is causing and, unless such acts and practices are enjoined by theCourt, will continue to cause irreparable harm to Plaintiff Tempnology for which there is noadequate remedy at law, and for which Plaintiff is entitled to injunctive relief under 35 U. S. C. $283.

The Plaintiff requests a Trial by Jury.PRAYER FOR RELIEF

WHEREFORE, Plaintiff Tempnology respectfully requests that this Court enter aJudgment and Order:

a. Declaring that Defendant has directly infringed one or more claims of the '119Patent;

b. Declaring that Defendant has actively induced infringement of one or more claimsof the 'l 19 Patent;

c. Preliminarily and permanently enjoining Defendant and its respective officers,agents, servants, employees, and attorneys, and those persons in active concert or participationwith it who receive actual notice of the order by personal service or otherwise, from committingfurther acts of infringement under 35 U.S.C. $ 271 of any one or more claims of the '1 19 Patent,pursuant to 35 U.S.C. $ 283;

d. Awarding Plaintiff Tempnology its lost profits and other damages adequate tocompensate for Defendant's infringement, but in no event less than a reasonable royalty, inaccordance with 35 U.S.C. $ 284;

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e. Deeming this to be an "exceptional" case within the meaning of 35 U.S.C. $ 285,entitling Plaintiff to an award of its reasonable attorney fees, expenses and costs in this action;

f. Awarding Plaintiff such other and further relief as this Court may deem to be justand proper.

DEMAND FOR JURY TRIALTempnology hereby demands a trial by jury on all issues in this action that are so triable

as a matter of right and law.

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DATED: July 30,2013

Respectful ly submitted,TEMPNOLOGY LLCBy their attorneys,SHEEHAN PHINNEY BASS + GREEN, PA

By: /s/ Christopher ColeChristopher Cole, NH Bar ID 8725Local CounselSHEEHAN PHINNEY BASS + GREEN PA1000 Elm StreetP.O. Box 3701Manchester, NH 03101Telephone: (603) 627 -8223Facsimile: (603) 627-8121Email: [email protected]

Of CounselVictor H. Polk, Jr.GREENBERG TRAURIG LLPOne International PlaceBoston, MA 02110Telephone : (617) 3 I 0-601 0Facsimile: (617) 27 9-8410Email : [email protected] t o r ney s for P I aint iffTempnology LLC

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tempnology v. grabber

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