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PLAINTIFFS,
V.
VICTORY PACKAGING, L.P.; AND
VICTORY PACKAGING
MANAGEMENT LLC
DEFENDANT.
Defendants Victory
PARTIES
under Texas law with its principal place of business located at 3816 Binz Engleman Rd., Ste.
B101.
2.
organized and existing under Texas law with its principal place of business located at 3816 Binz
PLAINTIFFS ORIGINAL COMPLAINT
Gardere01 - 7301901v.1
Page 1
Victory Packaging, L.P. is, upon information and belief, a corporation organized
and existing under Texas law. Defendant may be served with process through its registered
agent, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company, 211
E. 7th Street, Suite 620, Austin, Texas 78701, through expedited delivery service, certified or
registered mail (return receipt requested), first-class mail.
4.
corporation organized and existing under Texas law. Defendant may be served with process
through its registered agent, H. Benjamin Samuels, 3555 Timmons Lane, Ste. 1440, Houston,
Texas 77027, through expedited delivery service, certified or registered mail (return receipt
requested), first-class mail.
II.
5.
This action arises under the patent laws of the United States, 35 U.S.C. 101 et
seq. This Court has original and exclusive jurisdiction over the subject matter of the Complaint
pursuant to 28 U.S.C. 1331 and 1338(a).
6.
This Court has personal jurisdiction over Defendants in that they have committed
acts within Texas and the Western District of Texas giving rise to this action. As set forth in this
Complaint, Defendants have purposely transacted business involving their accused products in
this judicial district by providing products for sale through online and retail stores in the State of
Texas and Western District of Texas that infringe on the Patent-in-Suit.
7.
Venue is proper in this district under section 28 U.S.C. 1391 (b)-(c) and
1400(b). Further, venue is proper in this district under 28 U.S.C. 1391(a)(2), as a substantial
part of the events or omissions giving rise to the claims herein occurred in this judicial district.
Page 2
III.
8.
FACTUAL BACKGROUND
The 191 patent entitled Polyethylene Foam Block was duly and legally issued
by the United States Patent and Trademark Office on June 5, 2012, after full and fair
examination. A copy of the 191 patent is attached hereto as Exhibit A.
9.
The 191 patent provides for the design of a television edge protector designed to
The 702 patent entitled Polyethylene Foam Block was duly and legally issued
by the United States Patent and Trademark Office on May 29, 2012, after full and fair
examination. A copy of the 702 patent is attached hereto as Exhibit B.
11.
The 702 patent provides for the design of a television edge protector designed to
At all times relevant hereto, Ecoboxs products have been marked with the 191
infringing acts and still owns the patent. EcoBox is the sole owner of all rights, title, and interest
in the Patents-in-Suit, and possesses all rights of recovery, including the right to recover all past
damages under the Patents-in-Suit.
14.
management
to
its
customers.
Defendants
do
business
at
the
website
https://www.victorypackaging.com/en/.
15.
Recently, and subsequent to the issuance of the 191 and 702 and Patents,
Defendants embarked upon a systematic, organized and damaging course of conduct directed to
the duplication and copying Ecoboxs Polyethylene Foam Block. Defendants have, in fact,
Page 3
copied and are offering for sale, and selling, unauthorized replications of Ecoboxs Polyethylene
Foam Block.
16.
(collectively U-Haul). Defendants provide to U-Haul television edge protectors that are
identical to or substantially equivalent to the claims in the Patent-in-Suit. U-Haul does business
at the website www.uhaul.com and its infringing products can be purchased within the Western
District of Texas.
17.
Defendants directly ship, distribute, offer for sale, and (through U-Haul) sell and
advertise their infringing products and/or services in the United States, including within the State
of Texas and the Western District of Texas.
18.
Upon information and belief, Defendants have sold the infringing television edge
Specifically, Defendants directly ship, distribute, offer for sale, and (through U-
Haul) sell and advertise television edge protectors that are identical to or substantially equivalent
to the claims in the Patent-in-Suit.
20.
This illegal conduct by Defendants has no other purpose than to trade on the
reputation and recognition by the purchasing public of Ecoboxs Polyethylene Foam Block.
These activities by Defendants are damaging Ecoboxs reputation in the marketplace and causing
harm to Ecobox.
IV.
CAUSES OF ACTION
forth herein.
Page 4
22.
Defendants have infringed, literally and/or under the doctrine of equivalents, and
continue to directly infringe the claim of the 191 patent by, among other things, making,
manufacturing, importing, offering for sale, selling, and using television edge protectors with a
design covered by the 191 patent that are substantially similar to and infringe the 191 patent in
violation of 35 U.S.C. 271.
23.
television edge protectors manufactured and/or sold by Defendants infringe the 191 patent,
including the following products:
(i)
24.
and 289.
25.
Prior to the filing of this action, Plaintiff complied with 35 U.S.C. 287 by
placing a notice of the 191 patent on the television edge protectors it manufactures and sells.
26.
Defendants are, therefore, liable to EcoBox in an amount that adequately compensates it for
Defendants infringements, which, by law, cannot be less than a reasonable royalty, together
with interest and costs as fixed by this Court under 35 U.S.C. 284 or disgorgement of
Defendants profits as provided under 35 U.S.C. 289.
27.
Defendants infringement of the 191 patent is willful and deliberate, making this
case exceptional pursuant to 35 U.S.C. 285 and justifying treble damages by 35 U.S.C. 284.
28.
meaning of 35 U.S.C. 285, EcoBox requests the Court to award it all reasonable attorneys fees
and costs incurred in this litigation and pre-judgment and post-judgment interest pursuant to 35
Page 5
forth herein.
30.
Defendants have infringed, literally and/or under the doctrine of equivalents, and
continue to directly infringe the claim of the 702 patent by, among other things, making,
manufacturing, importing, offering for sale, selling, and using television edge protectors with a
design covered by the 702 patent that are substantially similar to and infringe the 702 patent in
violation of 35 U.S.C. 271.
31.
television edge protectors manufactured and/or sold by Defendants infringe the 702 patent,
including the following products:
(i)
32.
and 289.
33.
Prior to the filing of this action, Plaintiff complied with 35 U.S.C. 287 by
placing a notice of the 702 patent on the television edge protectors it manufactures and sells.
34.
Defendants are, therefore, liable to EcoBox in an amount that adequately compensates it for
Defendants infringements, which, by law, cannot be less than a reasonable royalty, together
with interest and costs as fixed by this Court under 35 U.S.C. 284 or disgorgement of
Defendants profits as provided under 35 U.S.C. 289.
35.
Defendants infringement of the 702 patent is willful and deliberate, making this
Page 6
case exceptional pursuant to 35 U.S.C. 285 and justifying treble damages by 35 U.S.C. 284.
36.
meaning of 35 U.S.C. 285, EcoBox requests the Court to award it all reasonable attorneys fees
and costs incurred in this litigation and pre-judgment and post-judgment interest pursuant to 35
U.S.C. 284 and 285.
V.
37.
JURY DEMAND
Procedure 38.
VI.
38.
CONDITIONS PRECEDENT
All conditions precedent to recovery sought herein have been met by Plaintiff or
waived by Defendant.
VII.
WHEREFORE, Plaintiff EcoBox respectfully requests that this Court enter a judgment in
its favor and against Defendants as follows:
1.
directors, officers, agents, employees, successors, subsidiaries, assigns, and all persons acting in
privity, concert, or participation with Defendants, from making, using, selling, or offering for
sale in the United States, or importing into the United States, any and all products and/or services
embodying the patented inventions claimed in the Patent-in-Suit;
2.
Page 7
4.
5.
6.
Costs, expenses, and fees, including reasonable and necessary attorneys fees,
Payment of costs of suit herein incurred pursuant to, inter alia, 35 U.S.C.
297(b)(1);
8.
Respectfully submitted,
By: /S/ Paul V. Storm
Paul V. Storm
Texas Bar No. 19325350
J. Michael Thomas
Texas Bar No. 24066812
1601 Elm Street
3000 Thanksgiving Tower
Dallas, Texas 75201
Telephone: (214) 999-3000
Telecopier: (214) 999-4667
pvstorm@gardere.com
mthomas@gardere.com
ATTORNEYS FOR PLAINTIFFS
Page 8
(r2)
Malone
(s4) POLYETHYLENEFOAMBLOCK
(**) Term:
14 Years
(21)
(22)
Filed:
* cited by examiner
Primary Examizer
or Firm-Robert A.
Voigt,
Jr.;
Winstead P.C.
09-07
Cr.
D9t456
4281
See application le
l4l;
410ll54;
References Clted
(s6)
U.S. PATENTDOCUMENTS
6/1909
t,5r6,72t A
1,894,605 A
ll/1924
D281,308
D335,083
I l/1985
S
S
(s7)
CLAIM
926,148
Jun.5,2012
Nov 9,2011
**
OTHER PUBLICATIONS
us D661,191 S
Sullivan
Emery
470/19
1/1933 Wright
Bussey,
174/72C
Jr.
.....
446/r22
,,,'''',,,,., D9/456
.,,..,,,.,,., D9/456
5,4U,96t A
D380,680
S
D397,2',70 S
6,053,751 A
D563,787 S
...,..,...... D9/456
...,.....,... D6/601
............439/108
DESCRIPTION
FIG, 1 is a front perspective view of the polyetlene foam
block;
FIG, 2 is an isometric perspective view of a side of the
polyetlene foam block;
FIG. 3 is a rear perspective view of the polyetlene foam
block;
FIG. 4 is a top perspective view of the polyetlene foam
block;
FIG. 5 is a side perspective view of the polyethylene foam
block; and,
FIG. is a bottomperspective view ofthe polyethylene foam
b1ock.
EXHIBIT
U.S.
Patent
Jun.5,2012
us D661,191
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CERTIFICATE OF CORRECTION
PATENTNO.
APPLICATIONNO.
DATED
: D661,191 S
TNVENTOR(S)
: Dale Malone
Page 1
:291406069
: June 5,2012
It is certified that error appears in the above-identified patent and that said Letters Patent is hereby corrected as shown below:
Title Page:
Item73
Please replace the name of the assignee from'oEcoBox Franchise Corporation, Inc." to
V*Li*t/, k ,{*
Michelle K. Lee
Director of the United States Patent and Trademark Ofice
ofl
(12)
(54)
D380,680
D397,270
6,053,751
D563,787
TX CJS)
Primary Examlzer
(22)
Filed:
(s7)
7/t997 Sun..,,..........,.
D9/456
4391t08
D6/601
D91456
or Frm-Robert A,
Voigt,
Jr.;
09-07
(s8)
428ll4l; 4l0ll54
block;
References Cited
A*
A*
s*
s*
A*
6/1909 Sullivn
DESCRIPTION
FIG. I is a front perspective view of the polyethylene foam
block;
ll3;
(56)
as
l4l,
See application
cr"alM
D9t456
D9/456,
I,894,605
D281,308
D335,083
5,484,961
M.ay 29,2412
Jtu:n.24,2011
(51)
**
Winstead P.C.
926,f48
*
*
*
*
14 Years
(21)
I,5t6,72t
S
S
A
S
us D660,702
* cited by examiner
(**) Term:
Patent No.:
1+s Date of Patent:
1ro;
tt/ t924
174/72 C
. 470119
tl1933
446/122
I l/1985
D9/456
4/t993
D91456
l/t996
174/84 C
block.
The broken lines in the drawings depict environmental subject matter only and form no part of the claimed design.
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