IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION ODIE B. POWELL, CASE NO. 115 West Sunflower Street Ruleville, MS 38771-3837 JUDGE: Plaintiff, MAGISTRATE: vs. COMPLAINT FOR PATENT INFRINGEMENT, AND UNJUST PRESCRIPTION SUPPLY, INC., ENRICHMENT c/o Jacquelyn J. Harbauer, Agent, 2233 Tracy Road Northwood, Ohio 43619, (Jury Demand Endorsed Hereon and, MAGNIFYING AIDS, INC., 4760 East Bay Drive, Ste. E Clearwater, Florida 33764, Defendants. NOW COMES Plaintiff, Odie B. Powell, by and through his undersigned attorneys, and alleges the following in support of his Complaint against the Defendants: STATEMENT OF THE CASE 1. Plaintiff seeks legal and equitable remedies for infringement of United States Patent No. 6,574,051, for a portable reading magnifier, (hereinafter referred to as the 051 patent resulting from actions and conduct of Defendants as set forth herein. JURISDICTION 2. This action arises under the patent laws of the United States, 35 U.S.C. 281, and this Court further has subject matter jurisdiction over all causes of action set forth herein under 28 U.S.C. 1331, 1332 and 1338. 1 Page
3. This Court has personal jurisdiction of Defendants by virtue of Defendants transacting any business in Ohio pursuant to Ohio s long arm statute, and by the sale of products, offer for sale of products, and solicitation of business within the State of Ohio, County of Cuyahoga, and elsewhere, which conduct infringes upon Plaintiff s patent rights. 4. Venue is proper in this district pursuant to 28 U.S.C. 1391 and 1400. THE PARTIES 5. The Plaintiff, Odie B. Powell, is a Mississippi resident having an address at 115 West Sunflower St., Ruleville, MS 38771. The Plaintiff sells his patented products primarily through http://obpfullpagemagnifier.com. 6. The Defendant, Prescription Supply, Inc., is an Ohio company organized under the laws of the State of Ohio. They have a principal place of business in Ohio located at in Northwood, Ohio. The Defendant conducts online sales through http://www.prescriptionsupply.com, and through ebay.com as med1965. (See Exhibit 1 attached hereto. 7. The Defendant, Magnifying Aids, Inc., is a Florida company with principal offices in Clearwater, Florida. They conduct online sales through http://www.magnifyingaids.com, and through ebay.com as magaids. (See Exhibit 2 attached hereto. FACTS 8. The Plaintiff invented a portable reading magnifier, which he sought to protect by filing a patent application entitled PORTABLE READING MAGNIFIER on December 5, 2001. The United States Patent Office subsequently examined the application and issued to Plaintiff U.S. Patent No. 6,574,051 on June 3, 2003. (A true and accurate copy of the patent is attached hereto as Exhibit 3. 2 P age
9. The `051 invention was examined in accordance with the Manual of Patent Procedure, and it was allowed because it is considered to be novel, useful and unobvious. 10. The `051 patent has 4 claims, including the following Independent Claim 1: 1. A portable reading magnifier comprising: a frame having four corners and formed of a first side frame element parallel to and opposite a second frame element, wherein each side frame element is perpendicularly affixed to a top frame element a bottom frame element parallel to and opposite said top frame element, said frame forming an opening; a magnifying lens supported within said opening and circumscribed by said frame; four linearly elongated legs, each said leg pivotally affixed in each corner of said frame, each said leg pivotal between a position parallel to said frame to a position perpendicular to said frame. 11. Upon information and belief, Defendants are distributors doing business in the United States, including in the Northern District of Ohio, promoting, marketing and selling a variety of products for hearing and visually challenged persons. 12. The Defendants market and sell a Lighted Full Page Magnifier (hereinafter the accused product that has all of the elements of the independent claim of the 051 patent: a frame; a magnifying lens; and, four elongated legs. 13. The Plaintiff has not granted a license, an assignment, or any other right to Defendants to make, to use, to offer for sale, or to sell the invention covered by the `051 patent. The conduct committed by Defendants is therefore unlicensed. 14. Defendants closely copied the product and the patented technology of Plaintiff s portable reading magnifier. Upon information and belief, Defendant s infringement is willful. 15. The Plaintiff is damaged by the foregoing infringing acts of Defendants in a lost royalty amount to be determined at trial or in an accounting, or lost profits. 3 P age
16. By reason of said acts by Defendants, Plaintiff has been and will continue to be seriously damaged and irreparably injured unless Defendants are enjoined by this Court from the actions complained of herein. CLAIM NO. 1 PATENT INFRINGEMENT 17. All paragraphs, above and below, are incorporated herein by reference as if set forth in their entirety. 18. The `051 patent was duly and legally issued to Plaintiff who owns and has at all times owned it. (Ex. 3. 19. The Defendants advertise, promote, sell, and offer for sale the accused products primarily through online sales. (Exs. 1 & 2. 20. The Defendants activities in interstate commerce, and through the United States, infringe and continue to infringe claims of the `051 patent. 21. Upon information and belief, the Defendants have infringed and continue to infringe at least claims 1 and 4 of the `051 patent. 22. Upon information and belief, Defendants have infringed and continues to infringe the claims of the `051 patent by having manufactured, distributed, used, offered for sale and sold the accused product. Defendants infringement is both a literal infringement of and an equivalent infringement of the claims. 23. Plaintiff is entitled to recover from Defendants the damages sustained as a result of Defendants infringing acts. CLAIM NO. 2 UNJUST ENRICHMENT 24. All paragraphs, above and below, are incorporated herein by reference as if set forth in their entirety. 4 P age
25. The Defendants distribution, sale, and offer for sale of the accused product resulted in their being conferred a substantial benefit to Defendants, at Plaintiff s expense, without payment to Plaintiff. 26. Defendants retention of this substantial benefit is unjust and inequitable. 27. Defendants are obligated to compensate Plaintiff for the substantial benefit conferred upon and unjustly retained by them. This compensation is made pursuant to a theory of unjust enrichment. PRAYER FOR RELIEF REQUEST FOR REMEDIES WHEREFORE, Plaintiff requests this Court to enter judgment in its favor and against the Defendants on all of his claims, and award the Plaintiff damages, and additionally, specifically requests the following relief: (a Holding that Defendants infringed and continues to willfully infringe the `051 patent; (b Preliminarily and permanently enjoining Defendants, its officers, its agents, its employees, its representatives, its distributors, and all others acting in concert therewith, from further infringing, contributing to, or inducing infringement of the `051 patent; (c Enjoining Defendants to deliver, pursuant to judgment herein and upon oath, any and all devices shown by evidence to infringe the `051 patent, wherein the accused devices will be impounded during a pendency of this action; (d Requiring Defendants to file with this Court a report in writing and under oath setting forth in detail the manner and form in which Defendants comply with the Court s order, the report shall be served on Plaintiff within 30 days after service of the Court s order; 5 P age
(e Requiring Defendants to account to Plaintiff for all sales and purchases that have occurred to date, and requiring Defendants to disgorge any and all profits derived by Defendants from selling the accused product; (f Requiring Defendants to provide a full disclosure of any and all information relating to its suppliers or suppliers of the accused product; (g Requiring Defendants to provide to Plaintiff locations of any and all manufacturing equipment including, but not limited to, the molds used to manufacture the accused product; (h Requiring Defendants to deliver to Plaintiff or destroy any and all manufacturing equipment used to manufacture the accused product; (i Requiring Defendants to provide to Plaintiff all sales records including, but not limited to, those records documented in email correspondences, mailings, and advertising lists; (j Award Plaintiff an accounting of damages resulting from Defendants patent infringement and contributory infringement and trebling such damages because Defendants conduct was of a knowing, a willful, and a wanton nature; (k Awarding damages to Plaintiff pursuant to 35 U.S.C. 284 in an amount adequate to compensate Plaintiff for lost royalties resulting from the patent infringement, and finding that in light of the nature of the infringement; (l Entering judgment for Plaintiff, against Defendants, for statutory damages based upon Defendants acts of patent infringement and for its violations of law; (m Entering judgment for Plaintiff, against Defendants, for trebling of damages awarded for patent infringement; (n Awarding Plaintiff judgment for its costs of this action and for its attorneys fees under 35 U.S.C. 285; 6 P age
(o Awarding Plaintiff a judgment for an award of punitive damages against Defendants; (p Awarding Plaintiff an assessment of interest on the damages so computed; and, (q Awarding such further and other relief as this Court may deem just and proper. JURY TRIAL DEMAND Plaintiff hereby requests a trial by jury by the maximum number of jurors permitted by law on all issues so triable. Respectfully submitted, /s/ David A. Welling C. VINCENT CHOKEN (0070530 DAVID A. WELLING (0075934 Choken Welling LLP 3020 West Market Street Akron, Ohio 44333 Tel. (330 865 4949 Fax (330 865 3777 vincec@choken-welling.com davidw@choken-welling.com JOHN D. GUGLIOTTA (0062809 Patent, Copyright & Trademark Law Group, LLC 4199 Kinross Lakes Parkway, Suite 275 Richfield, OH 44286 Tel. (330 253 2225 Fax (330 659 5855 johng@inventorshelp.com Counsel for the Plaintiff 7 P age