UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Transcription

1 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE Archer Mobility Products, LLC, Plaintiff, v. Civil Action No. Penco Medical, Inc., DEMAND FOR JURY TRIAL Defendant. ARCHER MOBILITY PRODUCTS, LLC COMPLAINT FOR DECLARATORY JUDGMENT FOR NON-INFRINGEMENT Plaintiff Archer Mobility Products, LLC ( Archer, through counsel, hereby brings its Complaint for Declaratory Judgment against Penco Medical, Inc. ( Penco, and alleges as follows: NATURE OF ACTION 1. This is an action for a declaratory judgment of non-infringement of United States Patent No. D442,123 (the 123 Patent under 28 U.S.C. 220l (Declaratory Judgment Act. Archer also seeks declaratory judgment that the '123 patent is invalid. PARTIES 2. Archer is a limited liability New Hampshire company with a principal place of business at 20 Circle Drive, PO Box 611, Holderness NH Upon information and belief, Penco is a corporation organized and existing under the laws of the State of Pennsylvania, with a principal place of business at One Ice Lake Drive, Mountaintop, PA

2 JURISDICTION AND VENUE 4. This is an action arising under the Patent Laws of the United States, 35 U.S.C. 101 and 171 et seq. and the Federal Declaratory Judgment Act, 28 U.S.C and Upon information and belief, this court has personal jurisdiction over Penco through Penco s purposeful minimum contacts with New Hampshire, by Penco s transacting of business in this State, through Penco s selling of its goods and services in connection with the alleged patent which is the subject of the 123 Patent, and through Penco s contact with Archer. 6. Venue is proper pursuant to 28 U.S.C. 139l(b-(c because the events and communications between the parties that give rise to Archer s claim for declaratory relief occurred in New Hampshire, and because upon information and belief, Penco is subject to the personal jurisdiction in this Court. 7. An actual case or controversy has arisen between the parties. Penco demanded that Archer cease and desist from any use and/or sale of Archer s Universal Walker Ski Glides product, and has asked Archer for an accounting of damages in order to determine the damages owned to Penco. FACTS DEFENDANT'S THREAT OF LITIGATION 8. On June 3, 2014 Penco sent a threating letter to Archer which alleged that the sales, and offering for sale, of Archers' Universal Walker Ski Glides product constitutes patent infringement and asserted that it would bring a lawsuit against Archer 2

3 for said infringement if Archer does not immediately cease and desist their commercial activities involving their Universal Walker Ski Glides product. Exhibit A. 9. As a result of Penco's threat of litigation and the circumstances surrounding this threat, an actual, present, and justiciable controversy has arisen between Archer and Penco regarding Archer's sale of its Top Glide product. the patent. PLAINTIFF'S NON-INFRINGEMENT OF DEFENDANT'S ALLEGED PATENT 10. The '123 patent is limited in scope to the design set forth in the figures in 11. There are many differences between the visual appearance of Archer's Universal Walker Ski Glides and the design covered by the '123 patent, including differences in plug shape and ski shape, among others. 12. Archer s Universal Walker Ski Glides contains a square plug. In contrast, Penco's '123 patent has a figure showing the plug as circular in shape. 13. As a further example, the 123 patent figures show the front section of the base of the glider to have straight lined edges. In contract, Archer s Universal Walker Ski Glides product s front section is curved. 14. As a further example, the 123 patent figures show a tab in the plug of the invention. In contract, Archer s Universal Walker Ski Glides product s does not contain any tabs in the plug. 15. Archer's product does not infringe on the '123 patent because an ordinary observer would not believe that the Archer product is the same or substantially similar to the design required by the '123 patent. 3

4 INVALIDITY OF DEFENDANT'S ALLEGED PATENT 16. The '123 patent is invalid and unenforceable for failure to comply with one or more of the conditions for patentability set forth in the Patent Laws of the United States Code, Title 35 at least in Sections 102, 103, 112, and The '123 patent should be declared invalid due to the functional nature of Penco s product. 18. Penco s patent, including, but not limited to, the plug and the glider is directed to a set of functional features used to support and utilize the walker. 19. Penco cannot legally own or assert design patent rights to a functional design. COUNT 1: Declaration of Non-Infringement of Defendant's Alleged Patent 20. Archer repeats and re-alleges each and every allegation set forth in the preceding paragraphs of this Complaint. 21. Penco has asserted that Archer' sale of its Universal Walker Ski Glides product infringes the '123 patent and has threatened to bring a lawsuit against Archer. An actual, present, and justiciable controversy has arisen between Penco and Archer concerning Archer s use and sale of its Universal Walker Ski Glides. 22. Archer seeks declaratory judgment that its manufacture, use, offer for sale, and/or sale of the Universal Walker Ski Glides product does not infringe on Penco's alleged design patent, and does not otherwise violate any of Penco s patent rights under federal law including, but not limited to, 35 U.S.C. 101 and 171, et seq. 4

5 COUNT 2: Declaration of Invalidity and Unenforceability of Defendant's Alleged Patent 23. Archer repeats and re-alleges each and every allegation set forth in the preceding paragraphs of this Complaint. 24. The '123 patent for a walker glide with retractable keyed plug is functional and should therefore be invalidated. 25. Archer seeks declaratory judgment that the '123 patent is invalid and/or unenforceable, for at least these grounds, and for any and all other grounds of invalidity and unenforceability available under federal law, the Patent Act, including, but not limited to, 35 U.S.C. 102, 103, 112, and Archer reserves the right to amend its allegations and/or this Complaint to add any further defenses once further discovery has been conducted in this matter. PRAYER FOR RELIEF WHEREFORE, pursuant to the Patent Act, 35 U.S.C. 101 and 171, et seq., and the Federal Declaratory Judgment Act, 28 U.S.C and 2202, Archer prays for relief as follows: A. Declare that Archer and their customers and suppliers have the right to make, use, sell, offer for sale the Universal Walker Ski Glides product and that this product does not infringe Penco's design patent rights, if any rights are established; B. Declare that Penco's '123 patent entitled "Walker Glide with Retractable Keyed Plug" is invalid and unenforceable; C. Award Archer its costs and Attorney's fees under 15 U.S.C and 35 U.S.C. 285, and any other applicable laws; and, D. Awarding such other relief as this Court may deem just and proper. 5

6 JURY TRIAL DEMAND Archer demands a trial by jury on all issues triable by right of jury. Date: June 10, 2014 Respectfully submitted by, Attorneys for Plaintiff Archer Mobility Products, LLC /s/ Gary E. Lambert Gary E. Lambert (NH Bar # LAMBERT & ASSOCIATES 92 State Street Boston, MA Telephone: ( Facsimile: ( lambert@lambertpatentlaw.com 6