Foshan Naibao v. Ningbo A-One - Complaint

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Transcript of Foshan Naibao v. Ningbo A-One - Complaint

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    1

    COMPLAINT FOR INFRINGEMENT OF PATENT

    Peiwen Chang (State Bar No. 155166)

    COGSWELL NAKAZAWA & CHANG, LLP

    444 W. Ocean Blvd., Suite 1410 Long Beach, California 90802 Phone: (562) 951-8668

    Fax: (562) 951-3933 Email: peiwen_chang@cnc-law.com

    Attorneys for Plaintiffs FOSHAN NAIBAO ELECTRIC PRODUCT CO., LTD. and XPOWER MANUFACTURE, INC.

    UNITED STATES DISTRICT COURT

    CENTRAL DISTRICT OF CALIFORNIA

    FOSHAN NAIBAO ELECTRIC PRODUCT CO., LTD. and XPOWER  MANUFACTURE, INC.,

    Plaintiffs,

    vs.

     NINGBO A-ONE INDUSTRIAL CO., LTD.,

    Defendant.

    Case No.:

    COMPLAINT FOR  INFRINGEMENT OF PATENT

    [WAIVER OF TRIAL BY JURY AND REQUEST FOR COURT TRIAL]

    COME NOW plaintiffs FOSHAN NAIBAO ELECTRIC PRODUCT CO.,

    LTD. and XPOWER MANUFACTURE, INC. (collectively, “Plaintiffs”), and for 

    their Complaint against defendant NINGBO A-ONE INDUSTRIAL CO., LTD.,

    (“Defendant”), allege as follows: FIRST COUNT

    INFRINGEMENT OF U.S. DESIGN PATENT NO. D704,908 AGAINST

    DEFENDANT NINGBO A-ONE INDUSTRIAL CO., LTD.

    1. FOSHAN NAIBAO ELECTRIC PRODUCT CO., LTD. is a

    Case 2:15-cv-06274 Document 1 Filed 08/18/15 Page 1 of 4 Page ID #:1

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    2

    COMPLAINT FOR INFRINGEMENT OF PATENT

    company organized and existing under the laws of the People’s Republic of China

    and is the holder and owner of U.S. Design Patent No. D704,908 (“Patent-in-

    Suit”).

    2. XPOWER MANUFACTURE, INC. is a corporation organized and

     existing under the laws of the State of California and holds an exclusive license to

    the Patent-in-Suit and the product line of air mover devices covered by the Patent-

    in-Suit.

    3. Defendant NINGBO A-ONE INDUSTRIAL CO., LTD.

    (“Defendant”) is a company organized and existing under the laws of the People’s

    Republic of China with its principal business office at 598 JiangNan Road, Room

    1331, Gaoixin District, Ningbo, Zhejiang, China.

    4. Jurisdiction of this Court is pursuant to 28 U.S.C., Sections 1331 and

    1338. Venue is proper in this District pursuant to 28 U.S.C. Section 1391(b)(2)

    and (c)(3).

    5. Defendant is subject to personal jurisdiction in this District at the time

    the action is commenced, because Defendant transacts business in California and

    other parts of the United States of America by marketing products and services that infringe the Patent-in-Suit causing injury to Plaintiffs, and there is no district

    in which the action may otherwise be brought. 28 U.S.C. § 1391(b)(3) and (c)(3).

    6. The Patent-in-Suit was filed June 8, 2011 and was issued by the

    United States Patent and Trademark Office on May 13, 2014. Attached hereto

    as Exhibit “1” is a true and correct copy of the Patent-in-Suit.

    7. FOSHAN NAIBAO ELECTRIC PRODUCT CO., LTD. designs,

    develops, manufactures and sells various air mover devices, including Model

    P-230AT, which are covered by the Patent-in-Suit. P-230AT was specifically

    designed and manufactured for XPOWER MANUFACTURE, INC., pursuant

    to the exclusive license between FOSHAN NAIBAO ELECTRIC PRODUCT

    CO., LTD., and XPOWER MANUFACTURE, INC.

    Case 2:15-cv-06274 Document 1 Filed 08/18/15 Page 2 of 4 Page ID #:2

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    3

    COMPLAINT FOR INFRINGEMENT OF PATENT

    8. FOSHAN NAIBAO ELECTRIC PRODUCT CO., LTD. and

    XPOWER MANUFACTURE, INC., to the extent required, complied with the

    marking provision of 35 U.S.C. Section 287. Attached hereto as Exhibit “2” is

    a true and correct photo of Model No. P-230AT air mover device.

    9. Defendant is the manufacturer of the air mover device with Model

     No. AP11003, and exports and sells Model No. AP11003 air mover device to

    the USA. Attached hereto as Exhibit “3” is a true and correct photo of 

    Defendant’s Model No. AP11003 air mover device.

    10. Defendant’s Model No. AP11003 air mover device uses design

    and technology of the Patent-in-Suit and thus infringes the Patent-in-Suit.

    11. Defendant had knowledge of the Patent-in-Suit when it designed,

    manufactured, and offered for sale Model No. AP11003 air mover device.

    12. The act of Defendant constitutes direct infringement of the Patent-

    in-Suit.

    13. Defendant engaged in the infringement of the Patent-in-Suit with

    full knowledge of the Patent-in-Suit.

    14. Despite receiving the cease and desist letter from Plaintiffs, Defendant has continued to engage in infringement of the Patent-in-Suit.

    15. Defendant’s infringement of the Patent-in-Suit was and continues

    to be willful, deliberate, and intentional.

    PRAYER 

    WHEREFORE, Plaintiffs pray for judgement against Defendant as follows:

    A. That Defendant has infringed U.S. DESIGN PATENT NO.

    D704,908;

    B. That Defendant’s infringement of U.S. DESIGN PATENT NO.

    D704,908 is willful, deliberate and intentional;

    C. That Defendant, its officers, directors, agents, employees, parents,

    subsidiaries, affiliates, successors, assigns, and all persons or entity in privity or 

    Case 2:15-cv-06274 Document 1 Filed 08/18/15 Page 3 of 4 Page ID #:3

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    4

    COMPLAINT FOR INFRINGEMENT OF PATENT

    active concert or participation with Defendant be permanently enjoined from

    infringing U.S. DESIGN PATENT NO. D704,908;

    D. That Plaintiffs be awarded damages against Defendant pursuant to 35

    U.S.C. Section 284, in excess of $1 million to be proven at trial;

    E. That Plaintiffs be awarded treble damages against Defendant pursuant

    to 35 U.S.C. Section 284;

    F. That this infringement by Defendant be found an exceptional

    case and that Plaintiffs be awarded attorneys’ fees, costs of suit, and expenses in

     prosecuting this action; and

    G. For such other and further relief as this Court may deem just and

     proper.

    DATED: August 17, 2015 COGSWELL NAKAZAWA & CHANG, LLP

    By: /s/ Peiwen Chang Peiwen Chang, Attorneys for Plaintiffs FOSHAN NAIBAO ELECTRIC PRODUCT CO., LTD. and XPOWER 

    MANUFACTURE, INC.

    WAIVER OF TRIAL BY JURY

    Plaintiffs hereby waive the right to trial by jury and request for a court trial.

    DATED: August 17, 2015 COGSWELL NAKAZAWA & CHANG, LLP

    By: /s/ Peiwen Chang Peiwen Chang, Attorneys for Plaintiffs FOSHAN NAIBAO ELECTRIC PRODUCT CO., LTD. and XPOWER  MANUFACTURE, INC.

    Case 2:15-cv-06274 Document 1 Filed 08/18/15 Page 4 of 4 Page ID #:4

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    Case 2:15-cv-06274