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Michael K. Friedland (State Bar No. 157,217)[email protected] N. Conover (State Bar No. 192,358)[email protected] S. Razai (State Bar No. 246,922)[email protected]
KNOBBE, MARTENS, OLSON & BEAR, LLP2040 Main StreetFourteenth FloorIrvine, CA 92614Phone: (949) 760-0404Facsimile: (949) 760-9502
Attorneys for PlaintiffOAKLEY, INC.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
OAKLEY, INC., a Washington corporation,
Plaintiff,
v.
SEAVER COMPANY d/b/a I-GOGSQUALITY EYEWEAR, a Minnesotacorporation.
Defendant.
)))))
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Case No.
COMPLAINT FORPATENT INFRINGEMENT
DEMAND FOR JURY TRIAL
'12 CV1280 MDDJAH
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Plaintiff Oakley, Inc. (Oakley) hereby complains of Defendant Seaver Company
d/b/a i-Gogs Quality Eyewear (i-Gogs) and alleges as follows:
I. JURISDICTION AND VENUE
1. This Court has subject matter jurisdiction over this action pursuant to 28
U.S.C. 1331 and 1338, as it arises under the patent laws of the United States.
2. This Court has personal jurisdiction over Defendant because Defendant has a
continuous, systematic, and substantial presence within this judicial district including by
selling and offering for sale infringing products in this judicial district, and by committing
acts of patent infringement in this judicial district, including but not limited to selling
infringing eyewear directly to consumers and/or retailers in this district and selling into the
stream of commerce knowing such products would be sold in California and this district,
which acts form a substantial part of the events or omissions giving rise to Plaintiffs claim.
3. Venue is proper in this judicial district under 28 U.S.C. 1391(b) and (c), and
28 U.S.C. 1400(b).
II. THE PARTIES
4. Plaintiff Oakley is a corporation organized and existing under the laws of the
State of Washington, having its principal place of business at One Icon, Foothill Ranch,
California 92610.
5. Plaintiff is informed and believes, and thereon alleges, that Defendant i-Gogs
is a corporation organized and existing under the laws of the state of Minnesota and has a
principal place of business at 200 Minnesota Ave., LeSeur, Minnesota 56058.
6. Plaintiff is informed and believes, and thereon alleges, that Defendant has
committed the acts alleged herein within this judicial district.
III. GENERAL ALLEGATIONS
7. Oakley has been actively engaged in the manufacture and sale of high quality
eyewear since at least 1985. Oakley is the manufacturer and retailer of several lines of
eyewear that have enjoyed substantial success and are protected by various intellectual
property rights owned by Oakley.
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8. On January 28, 2003, the United States Patent and Trademark Office duly and
lawfully issued United States Letters Patent No. D469,458 (the D458 patent), entitled
Eyeglass Front. Oakley is the owner by assignment of all right, title, and interest in the
D458 patent. A true and correct copy of the D458 patent is attached hereto as Exhibit A.
9. On January 26, 1999, the United States Patent and Trademark Office duly and
lawfully issued United States Letters Patent No. D404,754 (the D754), entitled Eyeglass
Front. Oakley is the owner by assignment of all right, title and interest in the D754 patent.
A true and correct copy of the D754 patent is attached hereto as Exhibit B.
10. Defendant manufactures, uses, sells, offers for sale and/or imports into the
United States eyewear that infringe Oakleys intellectual property rights.
11. Oakley has provided the public with constructive notice of its patent rights by
marking its patented eyewear and/or the packaging of such eyewear.
IV. CLAIM FOR RELIEF
(Patent Infringement)
(35 U.S.C. 271)
12. Oakley repeats and re-alleges the allegations of paragraphs 1-11 of this
complaint as if set forth fully herein.
13. Defendant, through its agents, employees and servants, has, and continues to,
knowingly, intentionally and willfully directly infringe, engage in acts of contributory
infringement, and/or induce the infringement of the D458 patent by directly and/or indirectly
making, using, selling, offering for sale and/or importing eyewear which are covered by the
claim of the D458 patent, including at least Defendants 9RM eyewear model.
14. Defendants actions constitute infringement of the D458 patent pursuant to 35
U.S.C. 271. Defendants acts of infringement of the D458 patent were undertaken without
permission or license from Oakley. Defendant had actual and/or constructive knowledge of
the D458 patent and its actions constitute willful and intentional infringement of the D458
patent.
/ / /
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15. Defendant, through its agents, employees and servants, has, and continues to,
knowingly, intentionally and willfully directly infringe, engage in acts of contributory
infringement, and/or induce the infringement of the D754 patent by directly and/or indirectly
making, using, selling, offering for sale and/or importing products which are covered by the
claim of the D754 patent, including at least Defendants Flames, 10RP, and TAC Polarized
eyewear models.
16. Defendants actions constitute infringement of the D754 patent pursuant to 35
U.S.C. 271. Defendants acts of infringement of the D754 patent were undertaken without
permission or license from Oakley. Defendant had actual and/or constructive knowledge of
the D754 patent and its actions constitute willful and intentional infringement of the D754
patent.
17. Oakley is informed and believes, and thereon alleges, that Defendant has
derived and received, and will continue to derive and receive, gains, profits and advantages
from the aforesaid acts of infringement in an amount that is not presently known to Oakley.
By reason of the aforesaid infringing acts, Oakley has been damaged and is entitled to
monetary relief in an amount to be determined at trial.
18. Due to the aforesaid infringing acts, Oakley has suffered and continues to
suffer great and irreparable injury, for which Oakley has no adequate remedy at law.
WHEREFORE, Oakley prays for judgment in its favor against Defendant for the
following relief:
A. An Order adjudging Defendant to have willfully infringed the D458 patent
under 35 U.S.C. 271;
B. A preliminary and permanent injunction enjoining Defendant, its respective
officers, directors, agents, servants, employees and attorneys, and those persons in active
concert or participation with Defendant, from directly or indirectly infringing the D458 patent
in violation of 35 U.S.C. 271;
/ / /
/ / /
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C. That Defendant account for all gains, profits, and advantages derived by
Defendants infringement of the D458 patent in violation of 35 U.S.C. 271, and that
Defendant pay to Oakley all damages suffered by Oakley and/or Defendants total profit from
such infringement;
D. An Order adjudging Defendant to have willfully infringed the D754 patent
under 35 U.S.C. 271;
E. A preliminary and permanent injunction enjoining Defendant, its respective
officers, directors, agents, servants, employees and attorneys, and those persons in active
concert or participation with Defendant, from directly or indirectly infringing the D754 patent
in violation of 35 U.S.C. 271;
F. That Defendant account for all gains, profits, and advantages derived by
Defendants infringement of the D754 patent in violation of 35 U.S.C. 271, and that
Defendant pay to Oakley all damages suffered by Oakley and/or Defendants total profit from
such infringement;
G. An Order for a trebling of damages and/or exemplary damages because of
Defendants willful conduct pursuant to 35 U.S.C. 284;
H. An Order adjudging that this is an exceptional case;
I. An award to Oakley of the attorneys fees and costs incurred by Oakley in
connection with this action pursuant to 35 U.S.C. 285;
J. An award of pre-judgment and post-judgment interest and costs of this action
against Defendant;
K. That Oakley have and recover the costs of this civil action, including
reasonable attorneys fees.
/ / /
/ / /
/ / /
/ / /
/ / /
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L. Such other and further relief as this Court may deem just and proper.
Respectfully submitted,
KNOBBE, MARTENS, OLSON & BEAR, LLP
Dated: May 25, 2012 By: s/Ali S. RazaiMichael K. FriedlandPaul N. ConoverAli S. Razai
Attorneys for PlaintiffOAKLEY, INC.
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DEMAND FOR JURY TRIAL
Plaintiff Oakley, Inc. hereby demands a trial by jury on all issues so triable.
Respectfully submitted,
KNOBBE, MARTENS, OLSON & BEAR, LLP
Dated: May 25, 2012 By: s/Ali S. RazaiMichael K. FriedlandPaul N. ConoverAli S. Razai
Attorneys for PlaintiffOAKLEY, INC.
13281133
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Federal Question
S 44 (Rev. 12/07) CIVIL COVER SHEETJS 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 asded 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
ose of initiating the civil docket sheet.
) PLAINTIFFS
) County of Residence of First Listed Plaintiff
(EXCEPT IN U.S. PLAINTIFF CASES)
DEFENDANTS
County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
LAND INVOLVED.
) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
BASIS OF JURISDICTION
1Plaintiff
2
Defendant
3(U.S. Government Not a Party)
4(Indicate Citizenship of Parties in Item III)
III. CITIZENSHIP OF PRINCIPAL PARTIES(For Diversity Cases Only)
(Place an X in One Box for Plaintiff
and One Box for Defendant)
PTF DEF PTF DEF
Citizen of This State 1 1
Citizen of Another State 2 2
Citizen or Subject of aForeign Country
3 3
Incorporated orPrincipal Place 4 4
of Business In This State
Incorporated andPrincipal Placeof Business In Another State
5 5
Foreign Nation 6 6
CHECK IF THIS IS A CLASS ACTION
UNDER F.R.C.P. 23
DEMAND $ CHECK YES only if demanded in complaint:
JURY DEMAND: Yes No
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity ):
CONTRACT TORTS
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment151 Medicare Act
152 Recovery of DefaultedStudent Loans
153 Recovery of Overpayment
of Veteran's Benefits
160 Stockholders' Suits
190 Other Contract
195 Contract Product Liability
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 &
330 Federal Employers'
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle355 Motor Vehicle
Product Liability
360 Other Personal
CIVIL RIGHTS
441 Voting
442 Employment
443 Housing/
444 Welfare
440 Other Civil Rights
PRISONER PETITIONS
510Motion to VacateSentence
Habeas Corpus:
530General
535Death Penalty
540Mandamus & other
550 Civil Rights
PERSONAL INJURY
362 Personal Injury -
Med. Malpractice
365 Personal Injury -
Product Liability
368 Asbestos PersonalInjury Product
PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other Personal
Property Damage385 Property Damage
Product Liability
FORFEITURE/PENALTY
610 Agriculture
620 Other Food & Drug
625 Drug Related Seizure
of Property 2 1 USC 88 1
630 Liquor Laws
640 R.R. & Truck
650 Airline Regs.
660 Occupational
Safety/Health
690 Other
LABOR710 Fair Labor Standards
Act
720 Labor/Mgmt. Relations
730 Labor/Mgmt. Reporting
& Disclosure Act
740 Railway Labor Act
790 Other Labor Litigation
791 Empl. Ret. Inc.Security Act
BANKRUPTCY
422 Appeal 28 USC 158
423 Withdrawal
PROPERTY RIGHTS
820 Copyrights
830 Patent
840 Trademark
SOCIAL SECURITY861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW
864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS
870 Taxes (U.S. Plaintiffor Defendant)
871 IRS - Third Party26 USC 7609
OTHER STATUTES
400 State Reapportionment
410 Antitrust
430 Banks and Banking
Commerce
460 Deportation
470 Racketeer Influenced
and Corrupt Organizations
810 Selective Service
850 Securities/Commodities
Exchange
875 Customer Challenge
12 USC 3410
891 Agricultural Acts
892 Economic Stabilization
Act
893 Environmental Matters
894 Energy Allocation Act
895 Freedom of Information
Act
900 Appeal of Fee
Determination Under
Equal Access to Justice
950 Constitutionality of
State Statutes
890 Other Statutory Actions
I.
555Prison Condition
(Place an X in One Box Only)
CAUSE OF ACTION
REQUESTED IN
RELATED CASE(S)
28 USC 157 450
COMPLAINT:
E SIGNATURE OF ATTORNEY OF RECORD
Slander
(See instructions):
CSDJS44
Franchise196
Amer. w/Disabilities -
Amer. w/Disabilities -
Consumer Credit
Cable/Sat TV
445
446
480
490
NATURE OF SUIT (Place an X in One Box Only)
OriginalProceeding
Removed fromState Court
Remanded fromAppellate Court
Reinstated orReopened another district
Transferred from
(specify)
MultidistrictLitigation
Judge fromMagistrateJudgment
ORIGIN (Place an X in One Box Only)1 2 3 4 5 6 7
Brief description of cause:
JUDGE DOCKET NUMBER
OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
Accommodations
Employment
Other
Injury
Liability
IMMIGRATION
Naturalization Application
Habcas Corpus -Alien Detainee
462
463
465 Other ImmigrationActions
Appeal to District
IF ANY
kley, Inc., a Washington corporation Seaver Company d/b/a I-Gogs QualityEyewear, a Minnesota Corporation
X
X
35 U.S.C Sec. 271
X
(SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
U.S. Government
U.S. Government Diversity
(Excl. Veterans)
(405(g))
Patent Infringement
s/Ali S. Razai
ichael K. Friedland, Paul N. Conover, Ali S. Razai
nobbe Martens Olson & Bear LLP40 Main St., 14th Floor; Irvine, CA 92614lephone: (949)760-0404; Facsimile: (949) 760-9502
May 25, 2012
to be determined
'12 CV1280 MDDJAH
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4 Reverse (Rev. 12/07)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44Authority 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
uired 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
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
h civil complaint filed. The attorney tiling a case should complete the form as follows:
(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, usey 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,ng both name and title.
(b) 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 timeling. 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,
county of residence of the defendant is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notinghis section (see attachment).
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an "X" in onehe boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
ted 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.
ted States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an X in this box.
eral 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
nstitution, 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 box2 should be marked.
ersity 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
he different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark thision for each principal party.
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
ginal Proceedings. (1) Cases which originate in the United States district courts.
moved 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 tlie petitionremoval is granted, check this box.
manded &om Appellate Court. (3) Check this box for cases remanded to thedistrict court for hrther action. Use the date of remand as the lilitlg date.
nstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
nsferred 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
ation transfers.
tidistrict 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
hecked, do not check (5) above.
peal to District Judge from Magistrate Judgment. (7) Check this box for an appeal tiom a magistrate judge's decision.
. 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.
mand. 111 this space enter the dollar amount (in thousands ofdollars) being demanded or indicate other demand sucli as a preliminary injunclion.
y Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
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
I. 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
the corresponding judge names for such cases.
e and Attorney Signature. Date and sign the civil cover sheet.
nable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select
most definitive.
Origin. Place an X in one of the seven boxes.
ess diversity. Example: U.S. Civil Statute: 47 USC 553
Brief Description: Unauthorized reception of cable service
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Table of Exhibits
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TABLE OF EXHIBITS
Page #
Exhibit A....................................................................................................................................1
Exhibit B ....................................................................................................................................6
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EXHIBIT A
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EXHIBIT A
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EXHIBIT A
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EXHIBIT A
PAGE 4
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EXHIBIT A
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EXHIBIT B
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EXHIBIT B
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EXHIBIT B
PAGE 8
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EXHIBIT B
PAGE 9
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EXHIBIT B
PAGE 10
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EXHIBIT B
PAGE 11
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