Case 1:15-cv-10381 Document 1 Filed 02/12/15 Page 1 of 6

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

HUB PEN COMPANY, INC.

Civil Action No. 15-cv-10381

Plaintiff

COMPLAINT AND DEMAND

FOR A JURY TRIAL

V.
ACEHIGH TECH CORP.
Defendant.

COMPLAINT
Plaintiff, Hub Pen Company, Inc. ("Hub "or "Plaintiff'), brings this action against defendant,
Acehigh Tech Corp. ("Acehigh" or "Defendant"), for patent infringement. By this Complaint, Hub
seeks, inter alia, injunctive relief, monetary damages, and attorneys fees under 35 U.S.C. 283, 284
and 285, and alleges as follows:

THE PARTIES
1.

Hub is a Massachusetts corporation, with its principal place of business at

1525 Washington Street, Braintree, MA 02184. Hub is the owner of numerous patents pertaining to
pens and styluses. Among the patents owned by Hub is U.S. Patent No. D 709,949, which claims a
design for a combined pen and stylus.
2.

Upon information and belief, Defendant is a California corporation with a principal place

of business located at 4750 Chino Ave., Suite E, Chino, California 91710.

Case 1:15-cv-10381 Document 1 Filed 02/12/15 Page 2 of 6

JURISDICTION AND VENUE

3.

This action arises under the patent laws of the United States, 35 U.S.C. 271, 281, 283-

4.

This Court has original and exclusive jurisdiction over the subject matter of this

285.

Complaint pursuant to 28 U.S.C. 1338(a) because this action arises under an act of Congress relating
to patents. Jurisdiction is also conferred pursuant to 28 U.S.C. 1331 because this is a civil action
arising under the laws of the United States.
5.

Upon information and belief Defendant regularly solicits and does business with parties

located and domiciled in Massachusetts, including through its website www.acehighpromo.com (the
Website). Venue is proper in this District under 28 U.S.C. 1391(b) and (c) and/or 1400(b).
THE ASSERTED PATENT
6.

U.S. Patent No. D 709,949 entitled Pen and Stylus (the 949 Patent), issued on

July 29, 2014 on an application filed on January 23, 2013. The 949 Patent is assigned to Hub. A true
and correct copy of the 949 Patent is attached hereto as Exhibit A.
BACKGROUND FACTS
7.

Hub is a family owned company that sells and custom imprints over 100 million pens

annually, and is a leader in the promotional pen market.

8.

One of Hubs most popular pen designs is the JAVALINA pen which has been copied

extensively by Hubs competitors.

9.

Hub designed a JAVALINA stylus and filed for design patent protection on January 23,

2013 for the new design, which was assigned Application No. 29/443,900 which issued on July 29, 2014
as U.S. Patent No. D 709,949.
2

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10.

Defendant Acehigh imports, offers for sale, uses and sells promotional writing

instruments, which are available through its website www.acehighpromo.com.

11.

Upon information and belief Acehigh imports, offers for sale, uses and sells a

combination pen and stylus under the names Jasper Stylus and Jasper II Stylus (collectively Jasper
Stylus), photos of which are attached hereto as Exhibit B, which pen and stylus infringes one or more
claims of the 949 patent (the Infringing Device).
12.

Figure 1 below shows a comparison of the Defendants Infringing Device with Figure 2.

Of the 949 patent.

Table 1

Acehigh Infringing
Devices

of 949 Patent

13.

Hub provided written notice to Acehigh by letter dated December 23, 2014 alleging

infringement of the 949 Patent by the Infringing Device.

3

Case 1:15-cv-10381 Document 1 Filed 02/12/15 Page 4 of 6

14.

Upon information and belief, Acehigh continues to import, offer for sale, use and sell the

Infringing Device.
15.

As a direct and proximate result of Acehighs acts of infringement, Hub has suffered

damages.
16.

As a direct and proximate result of Acehighs acts of infringement Hub has suffered and

continues to suffer irreparable harm for which there is no adequate remedy at law.
COUNT ONE
(Infringement of the 949 Patent - 35 U.S.C. 271)
17.

The Plaintiff incorporates paragraphs 1-16 by reference and realleges them as originally

and fully set forth herein.

18.

Acehigh has knowingly and intentionally infringed, and continues to infringe, the

949 Patent by importing, using, offering for sale, or selling, throughout the United States the Jasper
Stylus, which is covered by claims of the 949 Patent, and will continue to do so unless enjoined by this
Court.
19.

As a direct and proximate consequence of Acehighs infringing acts, Hub has suffered

and will continue to suffer injury and damages, and unless such acts and practices are enjoined by the
Court, will continue to be injured in its business and property rights, and will suffer and continue to
suffer injury and damages which are causing them irreparable harm and for which Hub is entitled to
relief under 35 U.S.C. 283, 284 and 285.
20.

Upon information and belief, the aforementioned infringement is knowing, intentional

and willful.
4

Case 1:15-cv-10381 Document 1 Filed 02/12/15 Page 5 of 6

WHEREFORE, Plaintiff Hub Pen Company, Inc. respectfully requests that this Court enter
judgment in its favor and against Defendant Acehigh Tech Corp and requests relief as follows:
A.

Judgment entered in its favor and against Acehigh on each count of the Complaint;

B.

Declaring that Acehigh has infringed the 949 Patent;

C.

Declaring that the foregoing infringement was willful and knowing;

D.

Declaring this to be an exceptional case within the meaning of 35 U.S.C. 285,

entitling Hub to an award of its reasonable attorneys fees in this action;

E.

Entry of a preliminary and thereafter permanent injunction prohibiting Acehigh from

violating 35 U.S.C. 271 by infringing the 949 Patent, all pursuant to 35 U.S.C. 283;
F.

Entry of a preliminary and thereafter permanent injunction ordering Acehigh to recall and

remove from retail establishments all devices that infringe the 949 Patent;
G.

Award Hub its damages in accordance with 35 U.S.C. 284, including actual damages,

compensatory damages in an amount no less than a reasonable royalty of Acehighs gross sales of all
Infringing Products, and treble damages;
H.

Award Hub prejudgment interest;

I.

Award Hub its costs, attorneys fees and expenses arising from this suit under

35 U.S.C. 285;
J.

Entry of an Order that Acehigh:

1.

cease all sales of the Infringing Device;

2.

remove the Infringing Device from the Internet, catalogs, flyers, brochures,
displays, advertisements and all other channels of trade;

3.

omit reference to the Infringing Device from the Internet, future catalogs, future
flyers, future brochures, future displays, future advertisements and all other
channels of trade;

Case 1:15-cv-10381 Document 1 Filed 02/12/15 Page 6 of 6

M.

4.

recall from its employees, subsidiaries, dealers, distributors, resellers and

customers, any and all Infringing Device and advertising of the Infringing Device;

5.

surrender for destruction, or other disposition at the election of Hub, all

extrusions, molds, dies, components-in-progress, components, production
materials, products, castings, fixtures, prints, computer programs, solid modeling,
models, prototypes, engineering records, and all means of manufacture associated
with the production of the Infringing Device; and

Grant Hub such other relief as this Court deems just and proper

JURY DEMAND
Hub demands a trial by jury on all counts of their Complaint so triable.
Respectfully submitted,
HUB PEN COMPANY, INC.
By its attorneys,

/Jodi-Ann McLane/
Jodi-Ann McLane, Esq., BBO #635567
John T. McInnes, Esq., BBO #657488
Dingman, McInnes & McLane, LLP
114 Turnpike Road, Suite 108
Westborough, MA 01581
Phone: (508) 938-6357 Jodi
Phone: (508) 938-1567 John
Fax: (508) 898-9498

Date: February 12, 2015

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EXHIBIT A

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(EXHIBIT B)

Page 1 of 1

Case 1:15-cv-10381 Document 1-3 Filed 02/12/15 Page 1 of 2

JS 44 (Rev. 12/12)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

HUB PEN COMPANY, INC.

ACEHIGH TECH CORP

(b) County of Residence of First Listed Plaintiff

County of Residence of First Listed Defendant

Norfolk

(EXCEPT IN U.S. PLAINTIFF CASES)

NOTE:

(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

(c) Attorneys (Firm Name, Address, and Telephone Number)

Jodi-Ann McLane, Esq., Dingman, McInnes & McLane, LLP,
114 Turnpike Road, Suite 108, Westborough, MA 01581
(508) 898-9494 (Main); (508) 938-6357 (Direct)

II. BASIS OF JURISDICTION (Place an X in One Box Only)

1

U.S. Government
Plaintiff

Federal Question
(U.S. Government Not a Party)

U.S. Government
Defendant

Diversity
(Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff

(For Diversity Cases Only)
PTF
Citizen of This State
1

DEF
1

and One Box for Defendant)

PTF
DEF
Incorporated or Principal Place
4
4
of Business In This State

Citizen of Another State

Incorporated and Principal Place

of Business In Another State

Citizen or Subject of a
Foreign Country

Foreign Nation

IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT

TORTS

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education

FORFEITURE/PENALTY

PERSONAL INJURY
365 Personal Injury Product Liability
367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other Personal
Property Damage
385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
463 Alien Detainee
510 Motions to Vacate
Sentence
530 General
535 Death Penalty
Other:
540 Mandamus & Other
550 Civil Rights
555 Prison Condition
560 Civil Detainee Conditions of
Confinement

625 Drug Related Seizure

of Property 21 USC 881
690 Other

BANKRUPTCY
422 Appeal 28 USC 158
423 Withdrawal
28 USC 157
PROPERTY RIGHTS
820 Copyrights
830 Patent
840 Trademark

LABOR
710 Fair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act

SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))

FEDERAL TAX SUITS

870 Taxes (U.S. Plaintiff
or Defendant)
871 IRSThird Party
26 USC 7609

OTHER STATUTES

375 False Claims Act

400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes

IMMIGRATION
462 Naturalization Application
465 Other Immigration
Actions

V. ORIGIN (Place an X in One Box Only)

1 Original
Proceeding

2 Removed from
State Court

Remanded from
Appellate Court

4 Reinstated or
Reopened

5 Transferred from
Another District
(specify)

6 Multidistrict
Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

35 U.S.C. 283, et. seq.

VI. CAUSE OF ACTION Brief description of cause:

Patent Infringement

CHECK IF THIS IS A CLASS ACTION

VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE

CHECK YES only if demanded in complaint:

Yes
No
JURY DEMAND:

DEMAND $

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

/s/ Jodi-Ann McLane

02/12/2015
FOR OFFICE USE ONLY
RECEIPT #

AMOUNT

Print

APPLYING IFP

Save As...

JUDGE

MAG. JUDGE

Reset

JS 44 Reverse (Rev. 12/12)

Case 1:15-cv-10381 Document 1-3 Filed 02/12/15 Page 2 of 2

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)

(b)

(c)

Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".

II.

Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III.

Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV.

Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.

V.

Origin. Place an "X" in one of the six boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.
When this box is checked, do not check (5) above.

VI.

Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII.

Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

Case 1:15-cv-10381 Document 1-4 Filed 02/12/15 Page 1 of 1

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
1. Title of case (name of first party on each side only) Hub Pen Company v. Acehigh Tech Corp

2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local
rule 40.1(a)(1)).
I.

410, 441, 470, 535, 830*, 891, 893, 895, R.23, REGARDLESS OF NATURE OF SUIT.

II.

110, 130, 140, 160, 190, 196, 230, 240, 290,320,362, 370, 371, 380, 430, 440, 442, 443, 445, 446, 448, 710, 720,
740, 790, 820*, 840*, 850, 870, 871.

III.

120, 150, 151, 152, 153, 195, 210, 220, 245, 310, 315, 330, 340, 345, 350, 355, 360, 365, 367, 368, 375, 385, 400,
422, 423, 450, 460, 462, 463, 465, 480, 490, 510, 530, 540, 550, 555, 625, 690, 751, 791, 861-865, 890, 896, 899,
950.
*Also complete AO 120 or AO 121. for patent, trademark or copyright cases.

3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in this
district please indicate the title and number of the first filed case in this court.

4. Has a prior action between the same parties and based on the same claim ever been filed in this court?
YES

NO

5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest?
2403)
YES

NO

YES

NO

(See 28 USC

If so, is the U.S.A. or an officer, agent or employee of the U.S. a party?

6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC 2284?
YES

NO

7. Do all of the parties in this action, excluding governmental agencies of the united states and the Commonwealth of
Massachusetts (governmental agencies), residing in Massachusetts reside in the same division? - (See Local Rule 40.1(d)).
YES
A.

NO

If yes, in which division do all of the non-governmental parties reside?

Eastern Division

B.

Central Division

Western Division

If no, in which division do the majority of the plaintiffs or the only parties, excluding governmental agencies,
residing in Massachusetts reside?
Eastern Division

Central Division

Western Division

8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court? (If yes,
submit a separate sheet identifying the motions)
YES

NO

(PLEASE TYPE OR PRINT)

ATTORNEY'S NAME Jodi-Ann McLane, Esq.
ADDRESS Dingman, McInnes & McLane, LLP, 114 Turnpike Road, Suite 108, Westborough, MA 01581
TELEPHONE NO. (508) 898-9494 (main); (508) 938-6357 (Direct)
(CategoryForm12-2011.wpd - 12/2011)