Int'l Mulch v. Novel Ideas - Complaint

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    IN THE UNITED STATES DISTRICT COURT

    EASTERN DISTRICT OF MISSOURI

    EASTERN DIVISION

    INTERNATIONAL MULCH COMPANY,

    INC.,

    Plaintiff,

    v.

    NOVEL IDEAS, INC.,

    Defendant.

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    Case No.

    JURY TRIAL DEMANDED

    COMPLAINT FOR DECLARATORY JUDGMENT

    Plaintiff International Mulch Company, Inc. (IMC), for its Complaint against defendant

    Novel Ideas, Inc., (Novel), alleges as follows:

    PARTIES

    1. Plaintiff IMC is a Missouri corporation with its principal place of business inSt. Louis County, at 182 Northwest Industrial Court, Bridgeton, Missouri 63044.

    2. Upon information and belief, Novel is a Florida corporation with its principalplace of business in Tampa, Florida.

    JURISDICTION AND VENUE

    3. This is a claim for declaratory judgment of patent non-infringement and invalidityof two design patents, U.S. Patent Nos. D649,268 (the 268 Patent) and D654,191 (the 191

    Patent).

    4. This Complaint for Declaratory Judgment arises under the Declaratory JudgmentAct, 28 U.S.C. 2201-02, and under the patent laws of the United States, Title 35 of the United

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    States Code. This Court has jurisdiction over the subject matter of this Complaint under

    28 U.S.C. 1338(a) and 2201.

    5. Novel is subject to this Courts personal jurisdiction because, on information andbelief, Novel does substantial business in this District and regularly solicits business from, does

    business with, and derives revenue from goods and services provided to, customers in this

    District.

    6. Venue is proper in this District under 28 U.S.C. 1391(c) and 1400(b) becauseNovel engages in significant business activities in this District as set forth above.

    FACTUAL ALLEGATIONS

    7. This declaratory judgment action relates to the 268 Patent and the 191 Patent,both entitled FLEXIBLE LANDSCAPE EDGING, both issued to John S. Wink (Wink) as

    the inventor, and both assigned to Novel. Copies of the 268 Patent and the 191 Patent are

    attached hereto as Exhibits A and B.

    8. Upon information and belief, defendant Wink is an individual residing in Tampa,Florida. On information and belief, Wink is an owner of Novel, and he assigned all title and

    interest in the 268 Patent and the 191 Patent to Novel.

    9. IMC has recently begun selling a lawn edging product to Lowes.10. Wink and Novel have taken the position that IMCs lawn edging product infringes

    the 268 Patent and/or the 191 Patent.

    11. IMC has informed Wink and Novel that IMCs lawn edging product does notinfringe. Specifically, the ornamental design of IMCs lawn edging product differs from the

    ornamental design claimed by the 268 Patent and the 191 Patent in several ways, including, but

    not necessarily limited to, the following:

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    a. The ornamental texture of the IMC lawn edging product has theappearance of variable sized cobblestones, which is ornamentally different

    in appearance from that which is depicted in the 268 Patent and the 191

    Patent.

    b. The IMC lawn edging product has a squared-off top, which isornamentally different in appearance from the rounded top depicted in the

    268 Patent and the 191 Patent.

    c. The IMC lawn edging product has three holes for stakes, which isornamentally different in appearance from the four holes depicted in the

    268 Patent.

    d. The IMC lawn edging product has a rounded inside corner, which isornamentally different in appearance from the square inside corner

    depicted in the 268 Patent and the 191 Patent.

    12. Despite being informed by IMC of the ornamental differences between IMCslawn edging product and the ornamental design claimed by the 268 Patent and the 191 Patent,

    Novel and Wink have, on information and belief, communicated directly to Lowes, taking the

    position that the IMC lawn edging product being sold by Lowes infringes the 268 Patent and the

    191 Patent.

    13. Because Novel and Wink have taken the position that IMCs lawn edging productinfringes the 268 Patent and the 191 Patent, and because Novel and Wink have communicated

    their position to IMCs customer, Lowes, IMC is in apprehension that Novel will commence

    litigation against IMC and/or Lowes.

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    COUNT I: DECLARATION OF NON-INFRINGEMENT

    OF U.S. PATENT NO. D649,268

    14. IMC incorporates by reference and realleges Paragraphs 1-13 as if fully set forthherein.

    15. An actual and justiciable controversy exists between IMC and Novel as to theinfringement of the 268 Patent.

    16. IMCs manufacture, sale, and offers to sell its lawn edging product in the UnitedStates have not infringed, contributed to the infringement of, or induced infringement of any

    valid and enforceable claim of the 268 Patent.

    17. The allegations of patent infringement by Wink and Novel have placed a cloudover IMCs business and are likely to cause IMC to lose revenues and business opportunities.

    Novels actions and assertions, therefore, will likely cause irreparable injury to IMC.

    18. IMC is entitled to a judgment declaring that the 268 Patent is not infringed byIMCs lawn edging product.

    COUNT II: DECLARATION OF INVALIDITY OF U.S. PATENT NO. D649,268

    19. IMC incorporates by reference and realleges Paragraphs 1-13 as if fully set forthherein.

    20. An actual and justiciable controversy exists between IMC and Novel as to thevalidity of the 268 Patent.

    21. The claims of the patents in suit are invalid for failure to meet one or more of therequirements of patentability set forth in 35 U.S.C. 101 et seq., including, but not limited to,

    101, 102, 103 and 112.

    22. As asserted by Novel and Wink against IMCs lawn edging product, the 268Patent is invalid due to functionality.

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    23. IMC is entitled to a judgment declaring that the 268 Patent is invalid. COUNT III: DECLARATION OF NON-INFRINGEMENT

    OF U.S. PATENT NO. D654,191

    24.

    IMC incorporates by reference and realleges Paragraphs 1-13 as if fully set forth

    herein.

    25. An actual and justiciable controversy exists between IMC and Novel as to theinfringement of the 191 Patent.

    26. IMCs manufacture, sale, and offers to sell its lawn edging product in the UnitedStates have not infringed, contributed to the infringement of, or induced infringement of any

    valid and enforceable claim of the 191 Patent.

    27. The allegations of patent infringement by Novel and Wink have placed a cloudover IMCs business and are likely to cause IMC to lose revenues and business opportunities.

    Novels actions and assertions, therefore, will likely cause irreparable injury to IMC.

    28. IMC is entitled to a judgment declaring that the 191 Patent is not infringed byIMCs lawn edging product.

    COUNT IV: DECLARATION OF INVALIDITY OF U.S. PATENT NO. D654,191

    29. IMC incorporates by reference and realleges Paragraphs 1-13 as if fully set forthherein.

    30. An actual and justiciable controversy exists between IMC and Novel as to thevalidity of the 191 Patent.

    31. The claims of the patents in suit are invalid for failure to meet one or more of therequirements of patentability set forth in 35 U.S.C. 101 et seq., including, but not limited to,

    101, 102, 103 and 112.

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    32. As asserted by Novel and Wink against IMCs lawn edging product, the 191Patent is invalid due to functionality.

    33. IMC is entitled to a judgment declaring that the 191 Patent is invalid.PRAYER FOR RELIEF

    WHEREFORE, International Mulch Company, Inc. requests judgment against Novel and

    respectfully prays that this Court enter orders that:

    1. Declare that IMC has not committed any act of direct and/or indirect infringementof the 268 Patent or the 191 Patent with respect to products that IMC makes, uses, offers for sale

    or sells, including specifically, but not necessarily limited to, IMCs lawn edging product;

    2. Declare the claims of the 268 Patent and the 191 Patent invalid;3. Enjoin Novel, its agents, servants, employees and attorneys, and all those in active

    participation or privity with any of them, from charging IMC or its agents, distributors, or

    customers with infringement of the 268 Patent or the 191 Patent, and from otherwise using the

    268 Patent or the 191 Patent to interfere in any way with IMCs manufacture, use, offer for sale,

    or sale of IMCs lawn edging product;

    4. Find this case exceptional pursuant to 35 U.S.C. 285, and award IMC itsreasonable attorney fees, expenses, and costs in this action; and

    5. Grant IMC such other and further relief as the Court deems just and proper.

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    JURY TRIAL DEMANDED

    Pursuant to Federal Rule of Civil Procedure 38(b), IMC demands a trial by jury on all

    issues so triable.

    Respectfully submitted,

    By: _/s/ Keith A. Rabenberg__________________Keith A. Rabenberg, #35616MO

    Elizabeth E. Fabick, #61749MO

    SENNIGER POWERS LLP100 N. Broadway, 17th Floor

    St. Louis, Missouri 63102(314) 345-7000 (Telephone)

    (314) 231-4342 (Facsimile)[email protected]

    [email protected]

    Attorneys for Plaintiff

    International Mulch Company, Inc.

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    c12 United States Design PatentWink

    54) FLEXIBLE LANDSCAPE EDGING

    75) Inventor: JohnS. Wink Tampa, FL US)73) Assignee: Novel Ideas Inc. Riverview, FL US)**) Term: 14 Years21) Appl. No.: 29/371 65422) Filed: Jun.24 2011

    Related U.S. Application Data63) Continuation of application No. 12/291,315, filed on

    Nov. 7, 2008.51) LOC 9) Cl. . 25-0152) U.S. Cl. ...................................................... D25/16458) Field of Classification Search ................. D25/164;

    46/33, 46See application file for com plete searc h history.

    USOOD649268S

    10) Patent No.:45) Date of Patent:

    US D649 268 SNov. 22 2011

    56) References CitedU.S. PATENT DO UMENTS

    6,085,458 A 7/2000 Gau .................................. 47/33D601,274 S 9/2009 Koenig, Jr. ................... D25/164* cited by examinerPrimary Examiner Doris lark74) Attorney Agent or i rm Nixon IP Law, PLC;William F. Nixon57) CLAIM

    The ornamental design for a flexible landscape edging, asshown and described.DESCRIPTION

    FIG. is a right side perspective view of a flexible landscapeedging, showing my new design;FIG. 2 is a front view thereof;FIG. 3 is a back view thereof;FIG. 4 is a top view thereof;FIG. 5 is a bottom view thereof;FIG. 6 is a left side view thereof;FIG. 7 is a right side view thereof; and,FIG. 8 is an enlarged cross-sectional view taken along line 8-8in FIG. 2

    1 Claim 4 Drawing Sheets

    EXHIBIT

    A

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    Case: 4:14-cv-00446-CEJ Doc. #: 1-1 Filed: 03/11/14 Page: 2 of 5 PageID #: 3

    U.S. atent Nov. 22 2011 Sheet 1 of 4 US D649 268 S

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    Case: 4:14-cv-00446-CEJ Doc. #: 1-1 Filed: 03/11/14 Page: 3 of 5 PageID #: 4

    U.S. Patent Nov. 22 2011 Sheet 2 of 4 US D649,268 S

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    Case: 4:14-cv-00446-CEJ Doc. #: 1-2 Filed: 03/11/14 Page: 1 of 5 PageID #: 7

    c12 United States Design PatentWink

    54) FLEXIBLE LANDSCAPE EDGING75) Inventor: JohnS Wink Tampa, FL US)73) Assignee: Novel Ideas Inc. Riverview, FL US)**) Term: 14 Years21) Appl. No.: 29/371 74522) Filed: Aug. 18 2011

    Related U.S. Application Data63) Continuation-in-part of application No. 12/291,315,

    filed on Nov. 7, 2008.51) LOC 9) Cl. . 25-0152) U.S. Cl. ...................................... D25/164; D25/11958) Field of Classification Search ................. D25/119,D25/164; 52/102; 47/33

    See application file for com plete searc h history.56) References Cited

    U.S. PATENT DOCUMENTS3,087,279 A 4/1963 Thompson ........................ 47/334,986,042 A 111991 Richardt ......................... 52/102D363,788 S 10/1995 Caley ........................... D25/119D385,635 S 10/1997 Nebelsieck .................. D25/164

    USOOD654191S

    10) Patent No.:45) Date of Patent:

    7/2000 Gau

    US D654 191 SFeb. 14 2012

    6,085,458 A6,591,547 B1D601,274 S 7/2003 Staten eta . ...................... 47/339/2009 Koenig, Jr.* cited by examinerPrimary Examiner Doris Clark74) Attorney Agent or i rm Nixon IP Law, PLC;William F. Nixon57) CLAIM

    The ornamental design for a flexible landscape edging, asshown and described.

    DESCRIPTIONFIG. is a right side perspective view of a flexible landscapeedging, showing my new design;FIG. 2 is a front view thereof;FIG. 3 is a back view thereof;FIG. 4 is a top view thereof;FIG. 5 is a bottom view thereof;FIG. 6 is a left side view thereof;FIG. 7 is a right side view thereof; and,FIG. 8 is an enlarged cross-sectional view taken along line 8-8in FIG. 2The broken line showing of the flexible landscape edging isfor the purpose of illustrating a hole and forms no part of theclaimed design.

    1 Claim 4 Drawing Sheets

    EXHIBIT

    B

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    Case: 4:14-cv-00446-CEJ Doc. #: 1-2 Filed: 03/11/14 Page: 2 of 5 PageID #: 8

    U.S. atent Feb.14 2012 Sheet 1 of 4 US D654 191 S

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    Case: 4:14-cv-00446-CEJ Doc. #: 1-2 Filed: 03/11/14 Page: 5 of 5 PageID #: 11

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    S 44 (Rev. 12/12) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except

    rovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for theurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

    . (a) PLAINTIFFS DEFENDANTS

    (b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant

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    Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated orPrincipal Place 4

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    (Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY 490 Cable/Sat TV 153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 850 Securities/Commod

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    Confinement

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    1 OriginalProceeding

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    4 Reinstated orReopened

    5 Transferred fromAnother District(specify)

    6 MultidistrictLitigation

    VI. CAUSE OF ACTION

    Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

    Brief description of cause:

    VII. REQUESTED INCOMPLAINT:

    CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

    DEMAND $ CHECK YES only if demanded in complaint

    JURY DEMAND: Yes No

    VIII. RELATED CASE(S)IF ANY

    (See instructions):JUDGE DOCKET NUMBER

    DATE SIGNATURE OF ATTORNEY OF RECORD

    FOR OFFICE USE ONLY

    RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

    Case: 4:14-cv-00446-CEJ Doc. #: 1-3 Filed: 03/11/14 Page: 1 of 2 PageID #: 12

    nternational Mulch Company, Inc.

    St. Louis County, MO

    Keith A. Rabenberg, Esq., Senniger Powers, LLP, 100 North Broadway,7th Floor, St. Louis, MO 63012, (314) 345-7000

    Novel Ideas, Inc.

    Hillsborough, FL

    35 U.S.C. 271 et seq.; 28 U.S.C. 2201 & 2202

    Claim for Declaratory Judgment of patent non-infringement and invalidity of US Pats. D649,268 and D654,191

    03/11/2014 /s/ Keith A. Rabenberg, Esq.

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    JS 44 Reverse (Rev. 12/12)

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    UNITED STATES DISTRICT COURT

    EASTERN DISTRICT OF MISSOURI

    )

    , )

    )

    Plaintiff, )

    )

    v. ) Case No.)

    , )

    )

    Defendant, )

    )

    ORIGINAL FILING FORM

    THIS FORM MUST BE COMPLETED AND VERIFIED BY THE FILING PARTY

    WHEN INITIATING A NEW CASE.

    THIS SAME CAUSE, OR A SUBSTANTIALLY EQUIVALENT COMPLAINT, WAS

    PREVIOUSLY FILED IN THIS COURT AS CASE NUMBER

    AND ASSIGNED TO THE HONORABLE JUDGE .

    THIS CAUSE IS RELATED, BUT IS NOT SUBSTANTIALLY EQUIVALENT TO ANY

    PREVIOUSLY FILED COMPLAINT. THE RELATED CASE NUMBER IS AND

    THAT CASE WAS ASSIGNED TO THE HONORABLE . THIS CASE MAY,

    THEREFORE, BE OPENED AS AN ORIGINAL PROCEEDING.

    NEITHER THIS SAME CAUSE, NOR A SUBSTANTIALLY EQUIVALENT

    COMPLAINT, HAS BEEN PREVIOUSLY FILED IN THIS COURT, AND THEREFORE

    MAY BE OPENED AS AN ORIGINAL PROCEEDING.

    The undersigned affirms that the information provided above is true and correct.

    Date:

    Signature of Filing Party

    Case: 4:14-cv-00446-CEJ Doc. #: 1-4 Filed: 03/11/14 Page: 1 of 1 PageID #: 14

    International Mulch

    Company, Inc.

    4:14-CV-446

    Novel Ideas, Inc.

    Reset

    March 11, 2014 /s/ Keith A. Rabenberg

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    AO 440 (Rev. 12/09) Summons in a Civil Action

    UNITED STATES DISTRICT COURTfor the

    __________ District of __________

    )

    ))))))

    Plaintiff

    v. Civil Action No.

    Defendant

    SUMMONS IN A CIVIL ACTION

    To: (Defendants name and address)

    A lawsuit has been filed against you.

    Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,whose name and address are:

    If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.

    CLERK OF COURT

    Date:Signature of Clerk or Deputy Clerk

    Case: 4:14-cv-00446-CEJ Doc. #: 1-5 Filed: 03/11/14 Page: 1 of 2 PageID #: 15Reset

    Eastern District of Missouri

    International Mulch Company, Inc.

    4:14-CV-446

    Novel Ideas, Inc.,

    Novel Ideas, Inc.Registered Agent

    John S. Wink515 Vincinda Crest WayTampa, FL 33619

    Keith A. Rabenberg, Esq.

    Senniger Powers, LLP100 N. Broadway, 17th FloorSt. Louis, MO 63102

    03/11/2014

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    AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

    Civil Action No.

    PROOF OF SERVICE

    (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

    This summons for (name of individual and title, if any)

    was received by me on(date) .

    I personally served the summons on the individual at(place)

    on (date) ; or

    I left the summons at the individuals residence or usual place of abode with (name)

    , a person of suitable age and discretion who resides there,

    on (date) , and mailed a copy to the individuals last known address; or

    I served the summons on (name of individual) , who is

    designated by law to accept service of process on behalf of (name of organization)

    on (date) ; or

    I returned the summons unexecuted because ; or

    Other (specify):

    .

    My fees are $ for travel and $ for services, for a total of $ .

    I declare under penalty of perjury that this information is true.

    Date:Servers signature

    Printed name and title

    Servers address

    Additional information regarding attempted service, etc:

    Case: 4:14-cv-00446-CEJ Doc. #: 1-5 Filed: 03/11/14 Page: 2 of 2 PageID #: 16

    4:14-CV-446

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