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ThermaPure v. Abracadabra Restoration et. al

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ThermaPure v. Abracadabra Restoration et. al Powered By Docstoc
					                                                               1   Geoffrey S. Kercsmar (#020528)
                                                                   Gregory B. Collins (#023158)
                                                               2   KERCSMAR & FELTUS PLLC
                                                                   6263 North Scottsdale Road, Suite 320
                                                               3   Scottsdale, Arizona 85250
                                                                   Telephone: (480) 421-1001
                                                               4   Facsimile: (480) 421-1002
                                                                   gsk@kflawaz.com
                                                               5   gbc@kflawaz.com
                                                               6   Sean M. Kneafsey (pro hac vice pending)
                                                                   Shaun Swiger (pro hac vice pending)
                                                               7
                                                                   KNEAFSEY & FRIEND LLP
                                                               8   800 Wilshire Boulevard, Suite 710
                                                                   Los Angeles, California 90017
                                                               9   Telephone: (213) 892-1200
                                                              10   Facsimile: (213) 892-1208
                                                                   skneafsey@kneafseyfriend.com
                         6263 N. Scottsdale Road, Suite 320




                                                                   sswiger@kneafseyfriend.com
Kercsmar & Feltus PLLC




                                                              11
                             Scottsdale, Arizona 85250




                                                              12   Attorneys for Plaintiff
                                  (480) 421-1001




                                                                   ThermaPure, Inc.
                                                              13
                                                              14                             UNITED STATES DISTRICT COURT

                                                              15                             FOR THE DISTRICT OF ARIZONA

                                                              16   ThermaPure, Inc., a California
                                                                   corporation,                              Case No.
                                                              17
                                                                                        Plaintiff,
                                                              18                                             COMPLAINT FOR INFRINGEMENT
                                                                   v.                                        OF U.S. PATENT NO. 6,327,812
                                                              19
                                                                   Abracadabra Restoration, Inc., an
                                                              20   Arizona corporation; and Emergency
                                                                   Restoration Experts, Inc., an Arizona     (Demand for Jury Trial)
                                                              21   corporation,
                                                              22                        Defendants.
                                                              23
                                                              24
                                                              25
                                                              26
                                                               1
                                                                            For its complaint against Abracadabra Restoration, Inc. (“Abracadabra”) and
                                                               2
                                                                   Emergency Restoration Experts, Inc. (“Emergency”), Plaintiff ThermaPure, Inc.
                                                               3
                                                                   (“ThermaPure”) alleges as follows:
                                                               4
                                                               5                                 JURISDICTION AND VENUE

                                                               6            1.    This is a civil action arising in part under laws of the United States relating
                                                               7   to patents (35 U.S.C. §§ 271, 281, 283, 284, and 285). This Court has federal jurisdiction
                                                               8   of such federal question claims pursuant to 28 U.S.C. §§ 1331 and 1338(a).
                                                               9            2.    The acts and transactions complained of herein were conceived, carried out,
                                                              10   made effective, and had effect within the State of Arizona and within this district, among
                         6263 N. Scottsdale Road, Suite 320
Kercsmar & Feltus PLLC




                                                              11   other places. Venue is proper under 28 U.S.C. §§ 1391(b), 1391(c) and 1400(a), because
                             Scottsdale, Arizona 85250




                                                              12   Plaintiff is informed and believes that Defendants have committed acts of infringement in
                                  (480) 421-1001




                                                              13   the State of Arizona. Plaintiff is informed and believes that Defendants‟ acts of willful
                                                              14   patent infringement arose out of transactions and occurrences in the State of Arizona.
                                                              15
                                                                                                         THE PARTIES
                                                              16
                                                              17            3.    Plaintiff ThermaPure is a corporation duly organized and existing under the

                                                              18   laws of the State of California with its principal place of business located at 180 Canada

                                                              19   Larga Road, Ventura, California 93001.

                                                              20            4.    Defendant Abracadabra is a corporation organized and existing under the

                                                              21   laws of the State of Arizona. Plaintiff is informed and believes that Abracadabra maintains

                                                              22   its principal place of business as 4814 North Shamrock Place, Tucson, Arizona 85705.

                                                              23            5.    Defendant Emergency is a corporation organized and existing under the

                                                              24   laws of the State of Arizona. Plaintiff is informed and believes that Emergency maintained

                                                              25   its principal place of business at 3045 North Colorado Street, Suite #3, Chandler, Arizona

                                                              26   85225.



                                                                                                                 2
                                                               1
                                                                                                     CLAIM FOR RELIEF
                                                               2
                                                                                       INFRINGEMENT OF U.S. PATENT NO. 6,327,812
                                                               3
                                                                          6.     Plaintiff ThermaPure incorporates by reference the preceding allegations of
                                                               4
                                                                   this Complaint as though fully set forth herein.
                                                               5
                                                                          7.     Plaintiff ThermaPure is in the business of using heat to remediate homes and
                                                               6
                                                                   commercial buildings so that they are free of mold, viruses, bacteria, insects (such as
                                                               7
                                                                   termites, bed buds, wood-boring beetles, cockroaches, scorpions, and dust mites) and
                                                               8
                                                                   rodents. ThermaPure‟s patented and proprietary processes are also used in construction
                                                               9
                                                                   dry out and in the removal of toxic chemicals such as volatile organic compounds.
                                                              10
                                                                          8.     Plaintiff ThermaPure owns all rights, title, interest in and has standing to sue
                         6263 N. Scottsdale Road, Suite 320
Kercsmar & Feltus PLLC




                                                              11
                             Scottsdale, Arizona 85250




                                                                   for the infringement of United States Patent No. 6,327,812 entitled, “Method Of Killing
                                                              12
                                  (480) 421-1001




                                                                   Organisms And Removal Of Toxins In Enclosures,” which was duly granted by the
                                                              13
                                                                   United States Patent and Trademark Office on December 11, 2001 (“the „812 Patent”). A
                                                              14
                                                                   true and correct copy of the „812 Patent is attached as Exhibit 1.
                                                              15
                                                                          9.     The „812 Patent is valid and enforceable.
                                                              16
                                                                          10.    Defendants have infringed and continue to infringe upon the „812 Patent by
                                                              17
                                                                   making, using, selling, or offering to sell in the United States products, devices or
                                                              18
                                                                   methods that embody or otherwise practice one or more of the claims of the „812 Patent,
                                                              19
                                                                   or by otherwise contributing to infringement or inducing others to infringe the „812
                                                              20
                                                                   Patent. Plaintiff is informed and believes that the acts of infringement occurred in the
                                                              21
                                                                   State of Arizona.
                                                              22
                                                                          11.    The infringing activities of Defendants are and have been without
                                                              23
                                                                   authorization from ThermaPure.
                                                              24
                                                                          12.    As members of the home remediation industry, Abracadabra and Emergency
                                                              25
                                                                   appreciate the scope of the „812 Patent. Notwithstanding Abracadabra‟s and Emergency‟s
                                                              26



                                                                                                                 3
                                                               1
                                                                   appreciation of the value and scope of the „812 Patent, they have infringed the „812
                                                               2
                                                                   Patent.
                                                               3
                                                                             13.   On information and belief, Plaintiff alleges that Defendants‟ infringement of
                                                               4
                                                                   „812 Patent is and has been willful and deliberate. Due to the intentional nature of
                                                               5
                                                                   Defendants‟ acts, this is an exceptional case in which Plaintiff is entitled to treble
                                                               6
                                                                   damages, attorneys‟ fees and costs pursuant to 35 U.S.C. §§ 284 and 285.
                                                               7
                                                                             14.   As a direct and proximate result of Defendants‟ infringement, contributory
                                                               8
                                                                   infringement and/or inducement to infringe the „812 Patent, Plaintiff has been and
                                                               9
                                                                   continues to be damaged in an amount to be proven at trial.
                                                              10
                                                                             15.   Defendants‟ infringement is continuous and ongoing and has caused and,
                         6263 N. Scottsdale Road, Suite 320
Kercsmar & Feltus PLLC




                                                              11
                             Scottsdale, Arizona 85250




                                                                   unless enjoined and restrained by this Court, will continue to cause Plaintiff great and
                                                              12
                                  (480) 421-1001




                                                                   irreparable injury to, among other things, Plaintiff‟s good will, business reputation, and
                                                              13
                                                                   market share. Plaintiff has no adequate remedy at law for the harm caused by Defendants‟
                                                              14
                                                                   acts. Plaintiff is therefore entitled to injunctive relief enjoining and restraining
                                                              15
                                                                   Defendants, and their respective officers, agents, servants, and employees, and all persons
                                                              16
                                                                   acting in concert with them, and each of them, from further infringement of the „812
                                                              17
                                                                   Patent.
                                                              18
                                                              19                                     PRAYER FOR RELIEF

                                                              20             WHEREFORE, Plaintiff prays for judgment against Defendants as follows:
                                                              21             (1)   For a judicial determination and declaration that the „812 Patent is valid and
                                                              22                   enforceable;
                                                              23             (2)   For a judicial determination and declaration that Defendants have infringed
                                                              24                   upon the „812 Patent;
                                                              25
                                                              26



                                                                                                                  4
                                                               1
                                                                   (3)    For a judicial determination and decree that Defendants‟ infringement upon
                                                               2
                                                                          the „812 Patent has been willful;
                                                               3
                                                                   (4)    For damages resulting from Defendants‟ infringement upon the „812 Patent,
                                                               4
                                                                          and the trebling of such damages because of the willful and deliberate nature
                                                               5
                                                                          of Defendants‟ infringement;
                                                               6
                                                                   (5)    In the alternative, ordering Defendants to pay ThermaPure all profits, gains,
                                                               7
                                                                          and advantages defendants have received or obtained from their unlawful
                                                               8
                                                                          conduct, in an amount to be determined at trial;
                                                               9
                                                                   (6)    In the alternative, that a reasonable royalty for Defendants‟ infringement be
                                                              10
                                                                          awarded to ThermaPure pursuant to 35 U.S.C. § 284;
                         6263 N. Scottsdale Road, Suite 320
Kercsmar & Feltus PLLC




                                                              11
                                                                          For injunctive relief enjoining against further infringement upon the „812
                             Scottsdale, Arizona 85250




                                                                   (7)
                                                              12
                                  (480) 421-1001




                                                                          Patent by Defendants, their officers, directors, shareholders, agents,
                                                              13
                                                                          servants, employees, and all other entities and individuals acting in concert
                                                              14
                                                                          with them or on their behalf;
                                                              15
                                                                   (8)    For an assessment of pre- and post-judgment interest on damages;
                                                              16
                                                                   (9)    For a declaration that this is an exceptional case under 35 U.S.C. Section
                                                              17
                                                                          285 and for an award of attorneys‟ fees, expert fees and costs in this action;
                                                              18
                                                                   (10)   For such other and further relief as the Court deems just and equitable.
                                                              19
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                                                              26



                                                                                                          5
                                                               1
                                                                                               DEMAND FOR JURY TRIAL
                                                               2
                                                                         Plaintiff hereby demands a trial by jury of any issue triable by right of a jury
                                                               3
                                                                   pursuant to Rule 38 of the Federal Rules of Civil Procedure.
                                                               4
                                                               5
                                                               6
                                                                         DATED this 29th day of June, 2011.
                                                               7
                                                               8                                      KERCSMAR & FELTUS PLLC
                                                               9
                                                              10                                  By: s/ Geoffrey S. Kercsmar
                         6263 N. Scottsdale Road, Suite 320




                                                                                                     Geoffrey S. Kercsmar
Kercsmar & Feltus PLLC




                                                              11
                             Scottsdale, Arizona 85250




                                                                                                     Gregory B. Collins
                                                              12                                     6263 North Scottsdale Road, Suite 320
                                  (480) 421-1001




                                                                                                     Scottsdale, Arizona 85250
                                                              13                                     Attorneys for Plaintiff ThermaPure
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                                                                                                               6
                                                               1                              CERTIFICATE OF SERVICE
                                                               2         I hereby certify that on June 29, 2011, I electronically transmitted the foregoing to
                                                               3   the Clerk‟s Office using the CM/ECF System for filing.
                                                               4
                                                               5
                                                               6   s/ Geoffrey S. Kercsmar

                                                               7
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                                                              10
                         6263 N. Scottsdale Road, Suite 320
Kercsmar & Feltus PLLC




                                                              11
                             Scottsdale, Arizona 85250




                                                              12
                                  (480) 421-1001




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