McDavid v Nike Amended Complaint

8/8/2019 McDavid v Nike Amended Complaint

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MCDAVID KNEE GUARD,INC.,an Illinois corporation, and

STIRLING MOULDINGS LIMITED,an English corporation,

Plaintiffs,

v.

NIKE USA,INC., an Oregon corporation,

Defendant.

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Civil Action No.: 08 CV 6584

Chief Judge James F. Holderman

Magistrate Judge Gilbert

PLAINTIFFSMOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Plaintiffs, McDavid Knee Guard, Inc. (McDavid), and Stirling Mouldings Limited

(Stirling), hereby move pursuant to Fed.R.Civ.P. 15(a) and Fed.R.Civ.P. 16(b) for leave to file

their Second Amended Complaint, a copy of which is attached hereto as Exhibit 1. Plaintiffs

seek leave to amend their complaint in light of the recent reissue of U.S. Patent No. 6,743,325 as

Reissue Patent No. RE41,346. In support of the motion, Plaintiffs state as follows:

On June 1, 2004, U.S. Patent No. 6,743,325 (the 325 Patent) was duly and legally

issued to Stirling. On November 11, 2005, Stirling filed for reissue of the 325 Patent. On

November 17, 2008, Plaintiffs initiated the instant action against Defendant Nike USA, Inc.

(Nike) alleging, inter alia, infringement of the 325 Patent. On May 25, 2010, the 325 Patent

was duly and legally reissued to Stirling as Reissue Patent No. RE41,346 (the Reissue Patent).

The effect of this Reissue is stated in Section 252 of the Patent Statute, which reads, in part:

The surrender of the original patent shall take effect upon the issue of the reissuedpatent, and every reissued patent shall have the same effect and operation in law,

on the trial of actions for causes thereafter arising, as if the same had been

originally granted in such amended form, but in so far as the claims of the originaland reissued patents are substantially identical, such surrender shall not affect any

action then pending nor abate any cause of action then existing, and the reissued

patent, to the extent that its claims are substantially identical with the original

Case: 1:08-cv-06584 Document #: 253 Filed: 06/16/10 Page 1 of 5 PageID #:4923


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patent, shall constitute a continuation thereof and have effect continuously fromthe date of the original patent.

Count I of the present complaint alleges infringement of the 325 Patent. However, under

Section 252, the 325 Patent was surrendered upon the issue of the reissued patent. Thus, the

complaint no longer identifies the proper patent-in-suit. Through this motion, Plaintiffs seek to

remedy this by updating Count I of the complaint and the respective Prayer for Relief to reflect

the recent Reissue of the 325 Patent as Reissue Patent No. RE41,346, and to assert the claims of

the Reissue Patent (i.e., claims 1-4, 6-8, 13, and 22-25) that Plaintiffs contend are infringed by

Nike.

Pursuant to Section 252, Plaintiffs are entitled to recovery for infringement of the Reissue

Patent. Claims 1-4, 6-8, and 13 of the Reissue Patent are identical to claims 1-4, 6-8, and 13 of

the now-surrendered 325 Patent, and therefore, Plaintiffs can recover for infringement of these

claims from the issuance of the 325 Patent. Indeed, Nike does not oppose Plaintiffs request to

amend the complaint to the extent that Reissue claims 1-4, 6-8, and 13 are identical to those of

the 325 Patent, as indicated in the letter of June 9, 2010, a copy of which is attached hereto as

Exhibit 2. Plaintiffs are also entitled to recovery for infringement of independent claim 22 of the

Reissue Patent, as well as its dependent claims 23-25, which were added during the reissue

proceeding.

Plaintiffs recognize that, pursuant to the Minute Entry of November 12, 2009, Plaintiffs

were permitted to a file motion to amend the complaint up to and including November 16, 2009.

(Docket No. 157). To amend the complaint after the expiration of the courts scheduling order

deadline, Fed.R.Civ.P. 16(b) provides that Plaintiffs must show good cause. Trustmark Ins.

Co. v. General & Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir. 2005). Fed.R.Civ.P.

16(b)s good cause standard primarily considers the diligence of the party seeking amendment.

Id. Here, because the complaint no longer identifies the proper patent-in-suit (i.e., the Reissue

Patent), Plaintiffs have demonstrated good cause to modify the Courts scheduling order.

Furthermore, Plaintiffs are filing the instant Motion for Leave to File Second Amended

Complaint shortly after the issuance of the Reissue Patent. Thus, Plaintiffs are diligent.

Once good cause has been shown for a late amendment under Rule 16(b), the Court

must consider the application of Rule 15(a). Connell v. KLN Steel Prods. Co., 2006 U.S. Dist.

LEXIS 29419, *17 (N.D. Ill. 2006). Fed.R.Civ.P. 15(a)(2) allows for the amendment of

pleadings upon leave of Court and declares that the court should freely give leave when justice



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so requires. In the absence of any apparent or declared reason such as undue delay, bad faith

or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue of allowance of the

amendment, futility of the amendment, etc. the leave sought should, as the rules require, be

freely given. Foman v. Davis, 371 U.S. 178, 182 (1962); see also King v. Cooke, 26 F. 3d

720, 723-24 (7th Cir. 1994).

The requested leave to amend will not prejudice Nike. As noted, claims 1-4, 6-8, and 13

of the Reissue Patent are identical to claims 1-4, 6-8, and 13 of the now-surrendered 325 Patent.

To this extent, Nike does not oppose Plaintiffs request to amend the complaint. (Exhibit 2.)

Furthermore, Nike will not be prejudiced by Plaintiffs infringement contentions regarding the

added claims 22-25 of the Reissue Patent. Indeed, judicial economy, convenience, and fairness

support the adjudication of these added claims in the present matter. Any additional discovery

would be relatively minimal as Plaintiffs infringement contentions as to these added claims are

based on the same infringing method practiced by Nikes supplier. At most, adjudication of

claims 22-25 would require additional claim construction for the single independent claim 22

and three dependent claims 23-25. Any such additional claim construction should be conducted

in the present matter to promote judicial economy as Plaintiffs only alternative is to file a

second lawsuit, effectively causing the repeat of the actions taken by the parties and the Court

over the last nineteen months. Any prejudice to Nike in adjudicating claims 22-25 in the present

matter is clearly out weighed by the hardships for both Nike and Plaintiffs that would result from

a second lawsuit.

In view of the timeliness of Plaintiffs motion and the status of the proceedings in this

action, the Court should grant Plaintiffs motion for leave to file the proposed Second Amended

Complaint.

WHEREFORE, Plaintiffs request that this Court grant its motion for leave to file the

Second Amended Complaint.



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Respectfully submitted,

Date: June 16, 2010

563007

s/ Paul B. HenkelmannKarl R. Fink

John F. Flannery

Paul B. HenkelmannFITCH,EVEN,TABIN &FLANNERY

120 South LaSalle Street, Suite 1600

Chicago, Illinois 60603

Telephone: (312) 577-7000Facsimile: (312) 577-7007

Attorneys for Plaintiffs, McDavid Knee Guard,

Inc. and Stirling Mouldings Limited



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CERTIFICATE OF SERVICE

I hereby certify that on June 16, 2010, a copy of the foregoing PLAINTIFFSMOTION FOR

LEAVE TO FILE SECOND AMENDED COMPLAINT was caused to be filed electronically. Notice of

this filing will be sent to the following parties by operation of the Courts electronic filing

system. Parties may access this filing through the Courts system.

Parties receiving service electronically are as follows:

Steven Yovits

HOWREY LLP321 North Clark Street, Suite 3400

Chicago, Illinois 60654-4717

Telephone: (312) 595-1239Facsimile: (312) 595-2250ATTORNEY FOR DEFENDANT,NIKE USA,INC.

William C. Rooklidge

Alyson G. BarkerRyan E. Lindsey

HOWREY LLP

4 Park Plaza, Suite 1700Irvine, California 92614

Telephone: (949) 721-6900

Facsimile: (949) 721-6910ATTORNEYS FOR DEFENDANT,NIKE USA,INC.

s/ Paul B. Henkelmann

One of the Attorneys for Plaintiffs, McDavid Knee

Guard, Inc. and Stirling Mouldings Limited



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EXHIBIT 1

Case: 1:08-cv-06584 Document #: 253-2 Filed: 06/16/10 Page 1 of 23 PageID #:4928


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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MCDAVID KNEE GUARD,INC.,an Illinois corporation, and

STIRLING MOULDINGS LIMITED,an English corporation,

Plaintiffs,

v.

NIKE USA,INC., an Oregon corporation,

Defendant.

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Civil Action No. 08 CV 6584

Chief Judge James F. Holderman

Magistrate Judge Gilbert

JURY TRIAL DEMANDED

SECOND AMENDED COMPLAINT

Plaintiffs, McDavid Knee Guard, Inc. (McDavid) and Stirling Mouldings Limited

(Stirling), complain against Defendant Nike USA, Inc. (Nike) as follows:

1. McDavid is a corporation incorporated under the laws of the State of Illinois, withits principal place of business in Woodridge, Illinois.

2. Stirling is a corporation registered in England, with its principal place of businessin Accrington, Great Britain.

3. McDavid and Stirling entered into a license agreement dated June 30, 2005. Inthe license agreement, Stirling granted to McDavid an exclusive license to certain intellectual

property, including U.S. Reissue Patent No. RE41,346, for McDavid to make, have made, use,

sell, offer for sale, lease, import, distribute and otherwise dispose of licensed products within the

Sporting Goods Field of Use.

4. Nike is a corporation incorporated under the laws of the State of Oregon, with itsprincipal place of business at One Bowerman Drive, Beaverton, Oregon. Nike is registered to do



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business in Illinois, and named as its agent National Registered Agents, Inc., 200 West Adams

Street, Chicago, Illinois 60606.

5. Count I of this action for patent infringement arising under the Patent Laws of theUnited States, 35 U.S.C. 271 et seq.

6. The Court has subject matter jurisdiction over Count I pursuant to 28 U.S.C. 1331 and 1338(a).

7. Count II is brought by McDavid pursuant to the Consumer Fraud Act, 815 ILCS505/1 et seq., to seek redress for Nikes unlawful conduct in violation of state law. McDavid is a

corporation incorporated under the laws of Illinois, with its principal place of business in Illinois.

Nike is a corporation incorporated under the laws of Oregon, with its principal place of business

in Oregon. The amount in controversy, without interest and costs, exceeds the sum or value

specified in 28 U.S.C. 1332.

8. Count III is brought by McDavid pursuant to the Illinois Uniform DeceptiveTrade Practices Act, 815 ILCS 510/1 et seq. The facts underlying Count III share a common

nucleus of operative facts and law with Count II. This Court, therefore, has supplemental subject

matter jurisdiction pursuant to 28 U.S.C. 1367.

9. Count IV is brought by McDavid pursuant to Illinois Common Law of TortiousInterference with Prospective Business Advantage. The facts underlying Count IV share a

common nucleus of operative facts and law with Count II.

10. Count V is brought by McDavid pursuant to 15 U.S.C. 1125 (the Lanham Act).This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1338.

11. This Court has personal jurisdiction over Nike.



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COUNT I

Infringement of Reissue Patent No. RE41,346

12. The allegations of paragraphs 1 and 11 are incorporated as though fully set forthherein.

13. On May 25, 2010, U.S. Reissue Patent No. RE41,346 (the 346 Patent) entitledFlexible Material was duly and legally issued to Stirling, on an application filed by David

Stirling Taylor. A copy of the 346 Patent is attached as Exhibit A.

14. Stirling is the owner of all right, title and interest in the 346 Patent. McDavid isthe exclusive licensee in the Field of Use.

15. Nike has been, and is willfully infringing, directly and/or indirectly, claims 1-4, 6-8, 13, and 22-25 of the 346 Patent by importing into the United States, and by offering to sell,

selling, and/or using within the United States, foam padded garments, sold under the marks

Deflex and Nike Pro Combat, which are made in Taiwan and South Korea by the process

patented by the 346 Patent. Unless enjoined by the Court, Nike will continue to infringe the

346 Patent.

16. Nikes acts of infringement have injured and damaged McDavid and Stirling.17. Nikes infringement has caused irreparable injury to McDavid and Stirling and

will continue to cause irreparable injury until Nike is enjoined from further infringement by the

Court.

COUNT II

Violation of the Consumer Fraud Act, 815 ILCS 505/1 et seq.

18. McDavid is a manufacturer and seller of foam padded garments, including foampadded girdles. Foam padded girdles are form fitting compression shorts worn under pants for

football, basketball or other contact sports to provide maximum protection and performance for



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the athlete. The girdles are constructed with lightweight hydravent moisture movement fabric

which regulates and stabilizes the wearers core temperature while giving the wearer protection

on his hips, thighs and tailbone.

19. McDavid created the market for foam padded girdles. It first made the foampadded girdles on about July 2005. It began selling its foam padded girdles soon thereafter to

athletic departments of colleges, universities, and high schools, to professional basketball

players, and to the public through sporting goods stores. Recently, McDavid has been informed

by certain universities that they could no longer buy foam padded girdles from McDavid because

the universities were required by contract to buy all foam padded girdles from Nike.

20. In July 2006, Nike entered into an exclusive Trademark/Supply Agreement withthe University of Illinois (U of I) in which the U of I is required to display the Nike Swoosh

logo visibly on all U of Is athletic competition apparel. The Agreement has a term of 10 years,

with Nike having the right of first refusal after the 10 year term. The Trademark/Supply

Agreement makes Nike the exclusive supplier of athletic competition apparel and prevents the U

of I from purchasing any athletic competition apparel from any third party without Nikes

approval. The essence of the Trademark/Supply Agreement is the placement of the Nike

Swoosh logo prominently on U of Is athletic competition apparel to thereby enable the public to

see the Nike logo. U of I agreed that its athletes and coaches will publicize the Nike Swoosh

logo on the competitive athletic apparel they wear. Nike also obtained the right to utilize the U

of I athletic competition apparel with the Nike logo in any media and the right sell competitive

athletic apparel bearing the U of I trademarks to sporting goods stores.

21. Under the Agreement, the Nike athletic competition apparel sold to the U of I areto be made available on an exclusive basis to be worn by team members, coaches and staff of the



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U of I. During activities, no team member, coach or staff member may wear athletic competition

apparel manufactured by companies other than Nike. Under the Trademark/Supply Agreement,

Nike has the right to terminate the Trademark/Supply Agreement if a member of any U of I

athletic team fails to wear or use the Nike athletic competition apparel with the Nike Swoosh

logo displayed prominently thereon during practices, games, exhibitions, clinics, sports camps or

other occasions during which team members wear or use Nike athletic competition apparel.

22. The foam padded girdles are worn under the pants of the athlete. Nikes Swooshlogo is on one of the legs of Nikes foam padded girdles, and the Nike name is on the waistband.

Thus, any Nike trademark or logo on the foam padded girdles is hidden from public view by the

overlying pants and will not be visible to the public on television or other media. Therefore,

Nikes marks are not promoted when an athlete wears its foam padded girdles, which is contrary

to the purpose of the Trademark/Supply Agreement. Moreover, the foam padded girdles are a

new product developed by Nike and sold after the effective date of the U of I Trademark/Supply

Agreement and therefore do not form part of the Agreement. Thus, the purchase of the foam

padded girdles from McDavid should not have been precluded by the Trademark/Supply

Agreement.

23. The Trademark/Supply Agreement prohibits the U of I from purchasing anyathletic competition apparel from any third party without Nikes approval. The U of I began to

purchase foam padded girdles from McDavid in about 2006. Upon information and belief, the U

of I believed that it was unnecessary to inform Nike that it was purchasing and that its athletes

were wearing foam padded girdles purchased from McDavid. Upon information and belief, Nike

did not grant its approval and it did not object.



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24. Upon information and belief, Nike has similar Trademark/Supply Agreementswith 75 colleges and universities. Upon information and belief, in the last year, Nike has made

substantial sales of its athletic competition apparel to the colleges and universities.

25. Upon information and belief, Nike has entered into Trademark/SupplyAgreements to be the exclusive supplier of athletic/competition apparel to over 35 high schools.

Nike also supplies athletic competition apparel to sporting goods stores.

26. Upon information and belief, Nike has over 50% of the athletic competitionapparel market in the United States.

27.

In about the beginning of October 2008, Nike falsely informed the colleges,

universities, and high schools that have Trademark/Supply Agreements with Nike that they are

not allowed under the Agreements to order foam padded girdles from McDavid, but must order

the foam padded girdles from Nike. They have ordered foam padded girdles from Nike and

ceased buying padded girdles from McDavid.

28. McDavid, on information and belief, alleges that the customers have beenprevented from choosing among foam padded girdles on their merits, thereby foreclosing

competition in the foam padded girdles market.

29. McDavid, on information and belief, alleges that the effect of Nikes statement tocustomers is to force the customers into buying foam padded girdles from Nike that the customer

did not wish to acquire or might have preferred to purchase from McDavid on different terms.

30. McDavid, on information and belief, alleges that Nike has intentionally deceivedand exploited customers by falsely informing customers that they are required by Agreement to

purchase padded girdles from Nike.

COUNT III

Violation of State Unfair Competition Law



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Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/1 et seq.

31. McDavid hereby incorporates by reference all of the allegations of paragraphs 19-30 as if fully set forth herein.

32. McDavid, on information and belief, alleges that the foregoing conduct amountsto an unlawful and/or unfair business practice by Nike within the meaning of the Illinois

Uniform Trade Practice Act 510/et seq.

COUNT IV

Violation of the Common Law of Tortious Interference

With Prospective Business Advantage


34. McDavid had a business relationship or had a reasonable expectation of enteringinto a business relationship with each of the colleges, universities, and high schools.

35. Nike had knowledge of that relationship and expectation.36. Nike intentionally interfered with that business relationship or prevented

McDavid from realizing the expectation of the business relationship.

COUNT V

Violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125


38. Nike made a false statement of fact to the equipment managers, athletic directors,and coaches at the college, university, and high school levels that they could not purchase foam

padded girdles from McDavid because they were prevented from doing so by the

Trademark/Supply Agreement with their respective college, university, and high school.



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39. The false statement was made in promotion or the sale of foam padded girdlessold by Nike bearing the Swoosh logo.

40. Upon information and belief, the statement actually deceived most, if not all, ofthe university and high school personnel.

41. The deception is material because it has prevented some of the college, university,and high school personnel to stop buying McDavids foam padded girdles and upon information

and belief, most of the remainder of the college, university, and high school personnel will stop

buying McDavids foam padded girdles.

42.

Upon information and belief, the false statements were made to college,

university, and high school personnel all over the United States.

43. McDavid has been damaged by loss of sales of its foam padded girdles and islikely to suffer substantial damage as a result of the false statement by direct diversion of sales

from McDavid to Nike.

PRAYER FOR RELIEF

WHEREFORE, McDavid and Stirling pray for relief on Count I as follows:

1. Judgment that claims 1-4, 6-8, 13, and 22-25 of the 346 patent are valid,enforceable and infringed by Nike;

2. A preliminary and permanent injunction enjoining Nike, its officers, directors,agents, employees, servants, attorneys, licensees, successors, assigns, customers, and those

persons acting in active concert or participation with Nike from infringing, inducing

infringement of, or contributorily infringing claims 1-4, 6-8, 13, and 22-25 of the 346 Patent;

3. An award of damages arising out of infringement by Nike of claims 1-4, 6-8, 13,and 22-25 of the 346 Patent, together with interest;



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4. Judgment that the damages so adjudged be trebled;5. A judgment that McDavid and Stirling be awarded their reasonable attorneys

fees, costs and expenses incurred in this action; and

6. Such other and further relief as the Court may deem just and proper.

WHEREFORE, McDavid prays for relief as to Counts II-V as follows:

1. Entering judgment for McDavid against Nike on Counts II-V;2. Award McDavid compensatory and statutory money damages, including treble

damages and punitive damages, as appropriate;

3. Award prejudgment interest, as appropriate;4. Declare Nikes actions to be in violation of state law of unfair competition, the

common law, and the Lanham Act, and enjoin Nike from carrying on such conduct;

5. Enter such other preliminary and permanent injunctive relief as is necessary andappropriate to restore competitive conditions in the markets affected by Nikes unlawful conduct;

and

6. Award the costs of this action.



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JURY DEMAND

McDavid and Stirling demand trial by jury of all issues triable of right by a jury.

Date: June 16, 2010 s/ Paul B. HenkelmannKarl R. Fink

John F. Flannery

Paul B. Henkelmann

FITCH,EVEN,TABIN &FLANNERY120 South LaSalle Street, Suite 1600

Chicago, Illinois 60603

Telephone: (312) 577-7000Facsimile: (312) 577-7007

Attorneys for Plaintiffs, McDavid Knee Guard, Inc.and Stirling Mouldings Limited

562947



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CERTIFICATE OF SERVICE

I hereby certify that on June 16, 2010, a copy of the foregoing SECOND AMENDED

COMPLAINT was caused to be filed electronically. Notice of this filing will be sent to the

following parties by operation of the Courts electronic filing system. Parties may access this

filing through the Courts system.

Parties receiving service electronically are as follows:

Steven Yovits

HOWREY LLP321 North Clark Street, Suite 3400

Chicago, Illinois 60654-4717

Telephone: (312) 595-1239Facsimile: (312) 595-2250[ATTORNEY FOR DEFENDANT,NIKE USA,INC.]

William C. Rooklidge

Alyson G. BarkerRyan E. Lindsey

HOWREY LLP

4 Park Plaza, Suite 1700Irvine, California 92614

Telephone: (949) 721-6900

Facsimile: (949) 721-6910[ATTORNEYS FOR DEFENDANT,NIKE USA,INC.]

s/ Paul B. Henkelmann

One of the Attorney for Plaintiffs, McDavid Knee

Guard, Inc. and Stirling Mouldings Limited



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EXHIBIT A



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EXHIBIT 2



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4 Park Plaza

Suite 1700

Irvine, CA 92614-255

T 949.721.6900F 949.721.6910

www.howrey.com

AMSTERDAM BRUSSELS CHICAGO EAST PALO ALTO HOUSTON IRVINE LONDON LOS ANGELES

June 9, 2010

ELECTRONIC MAIL

Paul B. Henkelmann, Esq.Fitch Even Tabin & Flannery

120 South La Salle Street, Suite 1600Chicago, Illinois 60603-3406

Re: McDavid Knee Guard, Inc. et al. v. Nike USA, Inc.

Dear Paul:

Thank you for contacting the clerk to schedule our August 30th

settlement conference

before Magistrate Gilbert. We look forward to having a meaningful exchange regardingsettlement with his assistance.

In our telephone conversation on Monday June 7, you indicated that McDavid and

Adidas have entered into a settlement agreement and that the court dismissed that case on June 4.I write to request that McDavid immediately produce the settlement agreement between

McDavid and Adidas, and any other documents related to that agreement. The agreement isresponsive to several of Nikes document requests, including at least request no. 56 that calls for

all documents regarding damages, as well as request no. 61 that calls for all documents reflectingMcDavids patent licensing practices and policies. Moreover, the settlement agreement is

relevant to McDavids reasonable royalty calculations pursuant to the Federal Circuits recent

decision inResQNet.com v. Lansa, Inc., (Fed. Cir. Feb. 5, 2010). Nike therefore requests thatMcDavid produce a copy of the settlement agreement and related documents to comply withMcDavids duty to supplement its document production under Federal Rule of Civil Procedure

26(e).

In our June 7 telephone conversation, you also informed me that McDavid intends to seekleave to amend its complaint to include claims from McDavids reissue patent. To the extent

that McDavid intends to amend its complaint to include asserted claims that are identical to thoseof the Stirling patent, Nike does not oppose McDavids request to amend. If, however, as you

indicated in our telephone conversation today, McDavid will seek to assert new claims from thereissue patent that are not identical to those of the Stirling patent, Nike opposes McDavids

request.

Please call me if you have questions.Best regards,

Ryan E. Lindsey

http://www.howrey.com/http://www.howrey.com/

McDavid v Nike Amended Complaint

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