UNITED STATES DISTRICT COURT DISTRICT OF NE\ry HAMPSHIRE,

TEMPNOLOGY LLC, Plaintiff, v IMPLUS FOOTCARE,LLC,

Defendant.
) ) ) ) ) ) ) ) ) )

Civil ActionNo.: JURY DEMANDED

ORIGINAL COMPLAINT F'OR PATENT INF'RINGEMF],NT

The Plaintiff Tempnology, LLC ("Tempnology"), by its undersigned attorneys, files this

Original Complaint against the Defendant Implus Footcare, LLC ("Defendant" or "Implus"),
demands atrial by jury and alleges as follows:

NATURE OF ACTION

1.

This is an action for patent infringement arising under the Patent Laws of the

United States, 35 U.S.C. $ 1 et seq., and seeking damages and injunctive relief under 35 U.S.C.
$$

271,281,293-285. THE PARTIES

2.

Plaintiff Tempnology is a limited liability company organized under the laws of

the State of New Hampshire, having its principal place of business at2I0 Commerce Way 100,
Portsmouth, NH 03801.

3.

On information and belief, Defendant Implus is a limited liability company

organized under the laws of the State of Delaware, having a principal place of business at 327

Hillsborough St., Raleigh, NC 27603.

JURISDICTION AND VENUE

4. 5.

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

$$ 1331 and 1338(a), and the Declaratory Judgment Acq 28

u.s.c.

$$ 2201 and2202.

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 and

belief, Defendant continuously, systematically, and purposefully conducts business within this

District, such that the Defendant should reasonably anticipate being haled into court in this
jurisdiction.

6.

Venue in this judicial district is proper under 28 U.S.C. $ 1391 andlor 28 U.S.C.
has

$1400. On information and belief, Defendant has transacted business in this district and

committed acts of patent infringement in this district, by the making, using, andlor selling of
products accused of infringement.

FACTUAL BACKGRO UND

7.

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, in

general, claims a fabric for thermal management, including the cooling of an object, such as a person's skin, and the related methods of making the same.

8.

The '119 Patent is titled "PROCESS OF MAKING A FABRIC," and was filed on

December 15, 2008, and duly and legally issued by the United States Patent and Trademark Offrce on May 14, 2013. A true and correct copy of the
'
1

19 Patent is attached as

Exhibit A.

9.

The patent-in-suit is currently in full force and effect and, in accordance with 35

U.S.C. 282, the patent-in-suit, and each and every claim thereof, are presumed to be valid.

10.

On information and belief, Defendant Implus infringes one or more claims of the

patent-in-suit by the manufacture, importation, use, sale, and/or offer for sale of one or more products

it calls or describes

as the Perfect Cooling Towel through various online and in-store

retailers, including but not limited to Costco.

1

1.

As a direct and proximate cause of the infringement by Implus and unless Implus

is enjoined by the Court from manufacturing, importing, offering to sell, selling, or using within
the United States products covered by the claims of the patent-in-suit, Tempnology is being and

will continue to be substantially and ineparably harmed in its business

COUNT ONE

and property rights.

PATENT INFRINGEMENT ('119 PATENT)

12.

Tempnology incorporates by reference the allegations contained in Paragraphs 1-

12 of this Complaint as

if fully

set forth herein.

13. On information and belief,

Tempnology, infringed, and

Defendant Implus has, without license from

use, sale andlor offer for

will continue to infringe, by the making,

sale of Perfect Cooling Towel under 35 U.S.C. g 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, will
continue to be injured in its business and property rights, and has suffered, is suffering, and continue to suffer injury and damages for which it is entitled to relief under 35 U.S.C. $ 284.

will

15.

As a direct and proximate consequence of the acts and practices of Defendant,

J

Defendant has also caused, is causing and, unless such acts and practices are enjoined by the

Court, will continue to cause irreparable harm to Plaintiff Tempnology for which there is no
adequate remedy atlaw, 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

\ilHEREFORE, Plaintiff Tempnology respectfully requests that this Court enter

Judgment and Order:

a.
Patent;

Declaring that Defendant has directly infringed one or more claims of the '119

b.

Declaring that Defendant has actively induced infringement of one or more claims

of the '1 19 Patent;

c.

Preliminarily and permanently enjoining Defendant and its respective offrcers,

agents, servants, employees, and attorneys, and those persons in active concert or participation

with it who receive actual notice of the order by personal service or otherwise, from committing
further 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. g 283;

d.
compensate
accordance

Awarding Plaintiff Tempnology its lost profits and other damages adequate to

for Defendant's infringement, but in no event less than a reasonable royalty, in

g 284;

with 35 U.S.C.

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.
and proper.

Awarding Plaintiff such other and further relief as this Court may deem to be just

DEMAND FOR JURY TRIAL

Tempnology hereby demands atrial by jury on all issues in this action that are so triable
as a matter of

right and law.

Respectfully submitted,

TEMPNOLOGY, LLC
By its Attorneys,
SHEEHAN PHINNEY BASS & GREEN,
Professional Association

DATED: July 31,2013

By:

/s/ Christopher Cole Christopher Cole, NH Bar No. 8725 SHEEHAN PHINNEY BASS + GREEN PA 1000 Elm Street Manchester, NH 03101 (603) 668-0300 ccole@sheehan.com Local Counsel

Of Counsel Victor H. Polk, Jr. GREENBERG TRAURIG LLP One International Place
Boston, MA 02110 (617)310-6010

polkv@gtlaw.com

Attorneys for Plaintiff Tempnology LLC