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Discflo v. American Process Equipment et. al

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Discflo v. American Process Equipment et. al Powered By Docstoc
					 1    Brian A. Carpenter
      CA Bar No. 262349
 2    BUETHER JOE & CARPENTER, LLC
 3    Email: Brian.Carpenter@BJCIPLaw.com
      1700 Pacific Avenue, Suite 2390
 4    Dallas, Texas 75201
      Telephone: (214) 466-1273
 5    Facsimile: (214) 635-1829
 6    Judi M. Sanzo
 7    CA Bar No. 153663
      SANZO LAW
 8    Email: judi@sanzolaw.com
      3755 Avocado Blvd. #521
 9    La Mesa, CA 91941-7301
      Telephone: (619) 579-0299
10
      Facsimile: (619) 579-5888
11
      Attorneys for Plaintiff Discflo Corporation
12
13                              IN THE UNITED STATES DISTRICT COURT

14                          FOR THE SOUTHERN DISTRICT OF CALIFORNIA
15
16    DISCFLO CORPORATION,                                    '11CV0476 BTM RBB
                                                    CASE NO. ________________________
      a California corporation,
17
                                                    COMPLAINT FOR PATENT
                   Plaintiff,                       INFRINGEMENT
18    v.
19
      AMERICAN PROCESS EQUIPMENT,
20    INC. dba ADAPTEK                              JURY DEMAND
      dba ADAPTEK PUMPS,
21    an Illinois corporation, and
      ROBERT T. WARRENDER
22    dba ADAPTEK dba ADAPTEK PUMPS,

23                Defendants.

24
25
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     COMPLAINT FOR PATENT INFRINGEMENT                                                  Page 1
 1         Plaintiff Discflo Corporation, for its Complaint against Defendants American Process
 2
      Equipment, Inc. dba Adaptek dba Adaptek Pumps and Robert T. Warrender dba Adaptek dba
 3
      Adaptek Pumps, alleges as follows:
 4

 5                                                 The Parties

 6         1.      Discflo Corporation (“Discflo”) is a corporation incorporated under the laws of the state
 7    of California with a principal place of business at 10850 Hartley Road, Santee, CA 92071.
 8
           2.      On information and belief, Defendant American Process Equipment, Inc. (“APEI”) is
 9
      an Illinois corporation with a principal place of business at P.O. Box 4233, Antioch, IL 60002.
10
      APEI may be served through its president Laurie L. Warrender at 12715 210th Avenue, Bristol, WI
11
12    53104 or through its registered agent for service of process, Harry Lipner, at 1103 Arbor Lane,

13    Glenview, IL 60025.

14         3.      Defendant Robert T. Warrender (“Warrender”) is an individual who, on information
15
      and belief, resides and may be served with process at 12715 210th Avenue, Bristol, WI 53104.
16
           4.      On information and belief, APEI and Warrender sometimes do business under the names
17
      “Adaptek” and “Adaptek Pumps.” Warrender has obtained a federally registered trademark, Serial
18
      Number 77626302, for the stylized mark “ADAPTEK PUMPS” shown therein, which is owned by
19
20    Warrender.

21                                        THE ASSERTED PATENT
22         5.      The patent at issue in this lawsuit is United States Patent No. 7,097,416 (the “„416
23
      Patent”), entitled “Rotary Disc Pump,” and properly issued on August 29, 2006. A true and correct
24
      copy of the „416 Patent is attached as Exhibit A.
25
           6.      Discflo owns by assignment all rights, title, and interest, including the right to
26
27    recover for all past and future damages, in the „416 Patent.

28



     COMPLAINT FOR PATENT INFRINGEMENT                                                                  Page 2
 1                                          JURISDICTION AND VENUE
 2
            7.         This civil action for patent infringement arises under the Patent Laws of the United
 3
      States, 35 U.S.C. §§ 1 et seq.
 4
            8.         This Court has subject matter jurisdiction over the claims presented herein pursuant to 28
 5
 6    U.S.C. §§ 1331 and 1338(a).

 7          9.         Defendants manufacture, import, use, offer for sale, or sell pump products within the

 8    United States, including this District, that infringe one or more claims of the „416 Patent.
 9          10.        On information and belief, Defendants have offered for sale or sold pump products
10
      that infringe one or more claims of the „416 Patent to a customer, who is also a customer of
11
      Discflo, within this District.
12
            11.        On information and belief, Defendants‟ infringing pump products within the United
13
14    States are placed in the stream of commerce and ultimately are used, sold or offered for sale in

15    this District.
16          12.        Therefore, Defendants have directly infringed one or more claims of the „416 Patent
17
      within this District or contributed to or induced infringement of one or more claims of the „416
18
      Patent within this District.
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            13.        On information and belief, Defendants have had knowledge of the „416 Patent, and,
20
21    at the time of possessing that knowledge, offered for sale or sold infringing pump products to at

22    least one customer within this District.

23          14.        Defendants are causing tortious injury by committing all or part of the tortious acts
24
      described herein within the State of California, including this District; are causing tortious injury in
25
      the State of California, including this District, by committing all or part of the tortious acts or
26
      omissions described herein outside the state of California but which acts or omissions have
27
      resulted in injury within the state of California; are causing tortious injury by committing all or
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      part of the tortious acts described herein outside the state of California while regularly conducting or


     COMPLAINT FOR PATENT INFRINGEMENT                                                                         Page 3
 1    soliciting business or deriving revenue from goods used within the State of California, including this
 2
      District; or have placed infringing goods into the stream of commerce, which goods are used or sold
 3
      in the State of California, including this District. This Court has personal jurisdiction over each of
 4
      the Defendants under the United States Constitution and under California‟s long-arm statute CAL.
 5
 6    CIV. PROC. 410.10.

 7         15.     Venue is proper in this District pursuant to 28 U.S.C. §§ 1400(b) and 1391(c).

 8                                  FIRST CLAIM FOR RELIEF
                             INFRINGEMENT OF U.S. PATENT NO. 7,097,416
 9
10         16.     Defendants have been and are now directly and indirectly infringing one or more

11    claims of the „416 Patent in violation of 35 U.S.C. § 271 by: (1) making, having made, importing,

12    using, offering to sell, or selling the patented inventions; (2) by actively inducing others to make,
13
      import, use, offer to sell, or sell the patented inventions; or (3) by contributing to the manufacture,
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      import, use, sale, or offer for sale the patented inventions.
15
           17.     Defendants are now infringing one or more claims of the „416 Patent by making,
16
      having made, importing, using, offering to sell, or selling infringing pump products, examples of
17
18    which are shown in Exhibit B hereto.

19         18.     Defendants are inducing and/or contributing to the infringement of one or more claims
20    of the „416 Patent by selling pump products to others, which purchasers directly infringe one or
21
      more claims through their use of such purchased pump products.
22
           19.     Discflo has complied with the marking provisions of 35 U.S.C. § 287.
23
           20.     These infringing acts by Defendants have been willful. Defendants have
24
25    known of the „416 Patent yet have continued to engage in the infringing acts described

26    herein.

27         21.     Discflo has given Defendants actual notice of the existence of the „416 Patent and of
28
      their infringement. Despite such notice, Defendants have continued to willfully engage in acts of



     COMPLAINT FOR PATENT INFRINGEMENT                                                                    Page 4
 1    infringement without regard to the „416 Patent and will likely continue to do so unless otherwise
 2
      enjoined by this Court.
 3
           22.      Discflo has been damaged by the infringing activities of Defendants and will be
 4
      irreparably harmed unless those infringing activities are preliminarily and permanently enjoined
 5
 6    by this Court. Discflo does not have an adequate remedy at law.

 7                                          REQUEST FOR RELIEF

 8         WHEREFORE, Discflo requests the following relief:

 9            (a)   A judgment in favor of Discflo that each of the Defendants has directly infringed and has
10    indirectly infringed, by way of inducement or contributory infringement, one or more claims of
11
      the „416 Patent, and that such infringement has been willful;
12
              (b)   A judgment providing that Discflo has been irreparably harmed by the infringing
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      activities of the Defendants and is likely to continue to be irreparably harmed by the Defendants‟
14
15    continued infringement;

16            (c)   Preliminary and permanent injunctions prohibiting each of the Defendants, and any

17    officers, agents, servants, employees and those persons in active concert or participation with any
18    of them, as well as all successors or assignees of the interests or assets related to the infringing
19
      pump products, from further infringement, direct and indirect, of the „416 Patent;
20
              (d)   A judgment and order requiring each of the Defendants, jointly and severally, to
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      pay Discflo damages adequate to compensate for Defendants‟ infringement under 35 U.S.C.
22

23    § 284, which damages may include lost profits but in no event shall be less than a reasonable

24    royalty for the use made of the inventions of the „416 Patent, including pre- and post-judgment
25    interest and costs, including expenses and disbursements;
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              (e)   A judgment and order awarding treble damages to Discflo pursuant to 35 U.S.C.
27
      § 284, in view of the willful and deliberate nature of the infringement, with interest;
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     COMPLAINT FOR PATENT INFRINGEMENT                                                                       Page 5
 1             (f)   A judgment declaring this to be an exceptional case under 35 U.S.C. § 285 and
 2
      awarding Discflo its attorneys‟ fees;
 3
               (g)   A judgment holding each of the Defendants jointly and severally liable for all
 4
      damages, costs, expenses, and attorneys‟ fees so awarded; and
 5
 6             (h)   Any and all such further necessary or proper relief as this Court may deem just.

 7                                           DEMAND FOR JURY TRIAL

 8          Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Discflo hereby demands a
 9 trial by jury of all issues so triable.
10
11 DATED: March 9, 2011                                BUETHER JOE & CARPENTER, LLC

12                                                     By: /s/ Brian A. Carpenter
                                                           Brian A. Carpenter
13                                                         CA Bar No. 262349
14                                                         Email: Brian.Carpenter@BJCIPLaw.com
                                                           Christopher M. Joe (to be admitted Pro Hac Vice)
15                                                         Email: Chris.Joe@BJCIPLaw.com
                                                           1700 Pacific Avenue, Suite 2390
16                                                         Dallas, Texas 75201
                                                           Telephone: (214) 466-1273
17                                                         Facsimile: (214) 635-1829
18
                                                       SANZO LAW
19
                                                            Judi M. Sanzo
20                                                          State Bar No. 153663
                                                            Email: judi@sanzolaw.com
21
                                                            3755 Avocado Blvd., Suite 521
22                                                          La Mesa, CA 91941-7301
                                                            Telephone: (619) 579-0299
23                                                          Facsimile: (619) 579-5888
24                                                          ATTORNEYS FOR
25                                                          DISCFLO CORPORATION

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     COMPLAINT FOR PATENT INFRINGEMENT                                                                  Page 6

				
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