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, ) ) vs. ) COMPLAINT FOR ) PATENT INFRINGEMENT, Jobar International, Inc. ) UNJUST ENRICHMENT, 21022 Figueroa Street ) AND INJUNCTIVE RELIEF Carson, CA 90745 ) ) Jury Demand Endorsed Herein Defendant. ) NOW COMES the Plaintiff, Odie B. Powell, by and through his undersigned attorneys, and alleges the following in support of his Complaint against Defendant Jobar International, Inc. ( Jobar or Defendant ): I. NATURE OF THE CASE 1. Plaintiff Odie B. Powell seeks legal and equitable remedies for infringement of United States Patent No. 6,574,051, for a portable reading magnifier, (hereinafter the `051 patent ) resulting from actions and conduct of Defendant as set forth herein. II. 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. In addition to or in alternative to this Court s federal question
jurisdiction, this Court also has diversity jurisdiction as the parties are from different states and the amount in controversy exceeds $75,000. 3. This Court has personal jurisdiction of Defendant by virtue of Defendant s sale of products, transaction of business, and solicitation of business within the State of Ohio in this judicial district and others. 4. Venue is proper in this district pursuant to 28 U.S.C. 1391 and 1400. III. THE PARTIES 5. Plaintiff, Odie B. Powell ( Powell ) is a Mississippi resident having an address at 115 West Sunflower St., Ruleville, MS 38771. 6. Upon information and belief, Jobar International, Inc., is a corporation organized under the laws of the State of California. They have administrative offices at 21022 Figueroa Street, Carson, California, 90745. 7. Defendant Jobar further provides an online website or forum through which wholesalers, retailers, and consumers may purchase goods. IV. THE COMPLAINT ALLEGATIONS 8. Plaintiff Powell 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(the 051 patent) on June 3, 2003. (A true and accurate copy of the patent is attached hereto as Exhibit 1. ) 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: 2
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, Defendant Jobar is a distributor 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. Defendant markets and sells a Foldout Lighted Stand Magnifier (hereinafter the accused product ) that has all of the elements of the independent claim No. 1 of the `051 patent: a frame; a magnifying lens; and, four elongated legs. (See a claims chart identifying infringement by Defendant s product attached as Exhibit 2. ) 13. Defendant Jobar was placed on notice of Plaintiff s rights in the `051 patent in an affirmative communication written to Jobar International, Inc. Attn: Legal Division, P.O. Box 5409, Carson, CA 90749-5409. The Defendant declined Plaintiff s proposal to abate the infringement. 14. Plaintiff has not granted a license, an assignment, or any other rights to Defendant to make, to use, to offer for sale, or to sell the invention covered by the `051 patent. The conduct committed by Defendant is therefore unlicensed. 15. Defendant closely copied the product and the patented technology of Plaintiff s portable reading magnifier. Upon information and belief, the Defendant s infringement is willful. 3
16. Plaintiff Powell is damaged by the foregoing infringing acts of Defendant in a lost royalty amount to be determined at trial or via an accounting. 17. By reason of said acts by Defendant, Plaintiff has been and will continue to be seriously damaged and irreparably injured unless Defendant is enjoined by this Court from the actions complained of herein. V. CLAIM NO. 1 PATENT INFRINGEMENT 18. Paragraphs 1-17 above are incorporated herein as if fully set forth in their entirety. 19. The `051 patent was duly and legally issued to Plaintiff Powell who owns and has at all times owned it. 20. Defendant Jobar advertises, promotes, and sells the accused product primarily through its retail stores and at its website www.jobar.com. The Plaintiff sells its patented product through its website at http://obpfullpagemagnifier.com. 21. Defendant Jobar activities in interstate commerce, and through the United States, infringe and continue to infringe claims of the `051 patent. 22. Upon information and belief, Defendant Jobar has infringed and continues to infringe the `051 patent. 23. Upon information and belief, Defendant Jobar has infringed and continues to infringe the claims of the `051 patent by having manufactured, distributing, using, offering for sale and selling the accused product. Defendant s infringement is both a literal infringement of and an equivalent infringement of the claims. 24. Plaintiff is entitled to recover from Defendant for the damages sustained as a result of Defendant s infringing acts. 4
25. Defendant was notified of Plaintiff s rights in the `051 patent and of Plaintiff s intent to enforce them. Defendant willfully proceeded to infringe the `051 patent with full knowledge and a disregard of Plaintiff s rights. VI. CLAIM NO. 2 UNJUST ENRICHMENT 26. Paragraphs 1-25 above are incorporated herein as if fully set forth in their entirety. 27. Defendant s distribution, sale, and offer for sale of Defendant s accused product resulted in their being conferred a substantial benefit, at Plaintiff s expense, without payment to Plaintiff. 28. Defendant s retention of this substantial benefit is unjust and inequitable. 29. Defendant is 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. VII. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays this Court enter the following judgments in Plaintiff s favor and against the Defendant: 30. Holding that Defendant infringed and continues to willfully infringe the `051 patent; 31. Preliminarily and permanently enjoining Defendant, 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; 32. Enjoining Defendant 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; 5
33. Requiring Defendant to file with this Court a report in writing and under oath setting forth in detail the manner and form in which Defendant complies with the Court s order, the report shall be served on Plaintiff within 30 days after service of the Court s order; 34. Requiring Defendant to account to Plaintiff for all sales and purchases that have occurred to date, and requiring Defendant to disgorge any and all profits derived by Defendant from selling the accused product; 35. Requiring Defendant to provide a full disclosure of any and all information relating to its suppliers or suppliers of the accused product; 36. Requiring Defendant to provide to Plaintiff locations of any and all manufacturing equipment including, but not limited to, the molds used to manufacture the accused product; 37. Requiring Defendant to deliver to Plaintiff or destroy any and all manufacturing equipment used to manufacture the accused product; 38. Requiring Defendant to provide to Plaintiff all sales records including, but not limited to, those records documented in email correspondences, mailings, and advertising lists; 39. Awarding Plaintiff an accounting of damages resulting from Defendant s patent infringement and contributory infringement and trebling such damages because Defendant s conduct was of a knowing, a willful, and a wanton nature; 40. 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 s infringement, and finding that in light of the nature of the infringement that the Plaintiff is entitled to enhanced damages an attorney s fees; 41. Entering judgment for Plaintiff, against Defendant, for statutory damages based upon Defendant s acts of patent infringement and for its violations of law; 6
42. Entering judgment for Plaintiff, against Defendant, for trebling of damages awarded for patent infringement; 43. Awarding Plaintiff judgment for its costs of this action and for its attorneys fees under 35 U.S.C. 285; 44. Awarding Plaintiff an assessment of interest on the damages so computed; and, 45. Awarding such further and other relief as this Court may deem just and proper. DEMAND FOR JURY TRIAL Plaintiff hereby requests and demands a trial by jury on all issues so triable. Most 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