Case 1:18-cv-00245-LY Document 1 Filed 03/20/18 Page 1 of 7 HARK N TECHNOLOGIES, INC., a Utah corporation, IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION v. Plaintiff, RFE SPORTING GOODS, INC., a Texas corporation and RFE INTERNATIONAL (GROUP) LTD., a United Kingdom company Civil Action No. Jury Trial Requested 1:18-cv-00245 Defendants. COMPLAINT FOR PATENT INFRINGEMENT Plaintiff Hark n Technologies, Inc. ( Hark n Tech ) hereby files this Complaint for Patent Infringement against defendant RFE Sporting Goods, Inc. ("RFE Sporting") and RFE International (Group) Ltd. ("RFE Int'l") and alleges as follows: Introduction Hark n Tech is a long-time manufacturer and distributor of sleeved elastics used in the personal exercise and fitness industry. Shon Harker is the sole owner of Hark'n Tech and the inventor of U.S. Patent No. 6,202,263 titled "Safety Sleeve Elastic Device," which has been assigned to his company. Defendants are infringing this patent through their making, selling, and distributing for sale certain sleeved elastic devices sold under the Adidas and Reebok brands. 1
Case 1:18-cv-00245-LY Document 1 Filed 03/20/18 Page 2 of 7 Nature of Action 1. This is a civil action arising under the Patent Laws of the United States (35 U.S.C. Section I et seq.), for damages and injunctive relief as provided in Title 35 U.S.C. Section 281 and Sections 283-285. The Parties 2. Plaintiff, Hark n Technologies, Inc., is a corporation organized and existing under the laws of the State of Utah with a principal place of business at Bldg. A-15, Freeport Center, Clearfield, UT 84016. Hark n Tech manufactures and distributes sleeved elastics used in the personal exercise and fitness industry. 3. On information and belief, Defendant, RFE Sportings Goods, Inc. is a corporation organized and existing under the laws of the State of Texas with a principal place of business at Suite #104, 1300 Smith Rd., Austin Texas 78721. 4. On information and belief, RFE Sporting Goods, Inc. has its headquarters in this District and does substantial business in this District. 5. On information and belief, Defendant RFE International (Group) Ltd. is a company organized and existing in the United Kingdom with a principal place of business at 8 Clarendon Dr., Wymbush, Milton Keynes, MK8 8ED, United Kingdom. 6. On information and belief, RFE Int'l is purposefully engaged in substantial business in this District with RFE Sporting. 7. On information and belief, Defendants are promoting, distributing, and selling throughout the United States various items for the personal exercise and fitness industry, including sleeved elastic exercise devices. 2
Case 1:18-cv-00245-LY Document 1 Filed 03/20/18 Page 3 of 7 1338(a). Jurisdiction and Venue 8. This Court has jurisdiction of this action under 28 U.S.C. Sections 1331 and 9. The court has personal jurisdiction over Defendant RFE Sporting because its principal place of business is located within this District. 10. The court has personal jurisdiction over Defendant RFE Int'l pursuant to the Texas long Arm Statute, Tex. Rev. Civ. Stat. 17.041-.045 (2017), because (a) RFE Int'l has transacted business in this state, and (b) engaged in tortious activity causing injury in this state. Defendant RFE Int'l has knowingly shipped or caused to be shipped the accused products into the state of Texas. 11. Venue is proper in this judicial district under 28 U.S.C. 1391(b), 1391(c), and 1400(b) for at least the reason that the Defendant RFE Sporting has its headquarters located in this District and has sold and is selling the accused products in this District. Background 12. On March 20, 2001, United States Patent No. 6,202,263 entitled Safety Sleeve Elastic Device (hereinafter referred to as the 263 Patent ) was duly and legally issued to Hark n Technologies, Inc., as the assignee of inventor Shon Harker. Hark n Tech owns all right, title and interest in and to the 263 Patent. A copy of the 263 Patent is attached to this Complaint as Exhibit A. 13. On March 21, 2006, an Ex Parte Reexamination Certificate was issued for the 263 Patent cancelling five claims, amending twelve claims, and adding an additional fifty-seven claims. A copy of the 263 Patent Reexamination Certificate is attached to this Complaint as Exhibit B. 14. The 263 Patent relates generally to a safety sleeve elastic exercise device. 3
Case 1:18-cv-00245-LY Document 1 Filed 03/20/18 Page 4 of 7 15. Hark n Tech has the exclusive right to make, use, sell, and offer to sell the inventions of the 263 Patent and has the exclusive right to sue and recover for past, present, and future infringement of the 263 Patent. 16. Hark'n Tech manufactures and sells sleeved elastic devices under the brand name SLASTIX. Typical SLASTIX products are shown as follows: 17. Since 2001, Hark'n Tech has consistently marked its SLASTIX products that are protected under the patent with a stamp on the junction cover between the outer sheathing and the handle strap or clip that states, "Stroops.com Patent #6,202,263". 18. On information and belief, Defendants manufacture and import into the United States certain exercise devices called Power Tubes. These devices are branded under the ADIDAS and REEBOK brands. A representative ADIDAS Power Tube is shown as follows: 4
Case 1:18-cv-00245-LY Document 1 Filed 03/20/18 Page 5 of 7 COUNT 1 Infringement of U.S. Patent No. 6,202,263 19. The allegations of paragraphs 1-18 above are incorporated for this Count 1 as though fully set forth herein. 20. On information and belief, Defendants have manufactured, used, sold, offered for sale, distributed, and/or imported into the United States the Adidas Power Tube and Reebok Power Tube exercise devices (the "Power Tubes"), and is therefore infringing either directly, contributorily, by inducement, or otherwise in violation of 35 U.S.C. Section 271 at least claims 7, 8, 13, 15, 37, 43, and 72 of the 263 Patent. 21. On information and belief, Defendants have offered for sale and have sold the accused Power Tubes in this District. 22. On information and belief, Defendants' infringement activities are ongoing and will continue unless enjoined by this Court. 23. On information and belief, Defendants' infringement activities are willful. 24. As a result of the aforementioned actions of Defendants, Plaintiff has suffered and continues to suffer damages and irreparable harm. WHEREFORE, Plaintiff prays for judgement and injunction against Defendants as follows: Prayer for Relief A. For judgement that Defendants have infringed U.S. Patent No. 6,202,263; B. For a preliminary and permanent injunction prohibiting Defendants, their subsidiaries, divisions, officers, agents, servants, employees, attorneys, those persons in active 5
Case 1:18-cv-00245-LY Document 1 Filed 03/20/18 Page 6 of 7 concert or participation with them who receive actual notice of the injunction order by personal service or otherwise, and those in privity with Defendants from infringing, contributing to the infringement of, and inducing infringement of U.S. Patent No. 6,202,263 and for all further and proper injunctive relief; C. For an award to Hark n Tech of damages for Defendants' infringement with interest, as well as costs and reasonable attorneys fees pursuant to 35 U.S.C. Section 285 or other applicable law; and D. For an award of such other and further relief as this Court may deem just and proper, including other relief permitted under the Patent Statute. JURY DEMAND Plaintiff requests trial by jury of all the issues in this matter. 6
Case 1:18-cv-00245-LY Document 1 Filed 03/20/18 Page 7 of 7 Dated: March 20, 2018 Respectfully submitted, By: /s/ Alan D. Albright Alan D. Albright Texas Bar No. No. 24046833 Chad Ennis Texas Bar No. No. 24045834 Chad.ennis@bracewelllaw.com Bracewell LLP 111 Congress Ave., Suite 2300 Austin, TX 78701-4061 (512) 472-7800 Telephone Attorneys for Plaintiff Hark n Technologies, Inc. OF COUNSEL: Stephen H. Bean (USB 9240, steve@legendslaw.com) Nicholas Wells (USB 10150, nwells@legendslaw.com) (pro hac vice to be filed) LEGENDS LAW GROUP, PLLC 330 N Main Kaysville, Utah 84037 Tel: (801) 337-4500 Attorneys for Plaintiff Hark n Technologies, Inc. #5663834.1 7