Pearl Musical Instrument Manufacturing v. Hoshino Gakki Et. Al.

7/28/2019 Pearl Musical Instrument Manufacturing v. Hoshino Gakki Et. Al.

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FILEDIN THE UNITED STATES DISTR ICT COURTFOR THE EASTERN DISTRICT OF VIRGINIAALEXANDRIA DIVISION 2013 JUL-3 P 2= 30

CLERK U3 DISTRICT COURTALEXANDRIA. VIRGINIAPEARL MUSICAL INSTRUMENTMANUFACTURING CO. LTD.,also translated to English asPEARL MUSICAL INSTRUMENT CO.

Plaintiffs,

HOSHINO GAKKI CO., LTD.and

HOSHINO (U.S.A.) INC.,Defendants .

Case No, / ' / i f l / f^CMH/TC0PATENT CASE

JURY TR IAL DEMANDED

COMPLAINT FOR PATENT INFRINGEMENT

Plaintiff Pearl Musical Instrument Manufacturing Company Limited ("Pearl" or"Plaintiff) files this Complaint against Hoshino Gakki Co., Ltd. and Hoshino (U.S.A.) Inc.(collectively, "Hoshino" or "Defendants") for infringement ofU.S. Patent No. 6,172,291 Bl (the'"291 Patent"). A copy of the '291 Patent is attached hereto as Exhibit A.

THE P A RT IE S

1. Pearl Musical Instrument Manufacturing Company Limited is a multinationalcorporation, with a principal place of business located at 10-2-1, Yachiyodai Nishi, YachiyoCity, Chiba, Japan. "Pearl Musical Instrument Manufacturing Company Limited" is an Englishtranslation of a Japanese business name. On occasion, the Japanese business name hasalternatively been translated as "Pearl Musical Instrument Co."


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2. Pearl manufactures and sells drums, percussion musical instruments and flutesfor, among other markets, the United States. The majority of drums and related items aremanufactured byPearl and imported directly from company-owned factories located overseas.

3. Upon information and belief, Hoshino Gakki Co. Ltd. is a corporationincorporated and existing under the laws of Japan, with a principal place of business located atNo. 22-3, Shumokucho, Higashiku, Nagoya, Japan ("Hoshino Japan"). Upon information andbelief, Hoshino Japan has a temporary principal place of business located at 6-10, 1-Chome,Shimizu, Kita-ku, Nagoya, 462-0844, Japan. Upon information and belief, Hoshino Japanmakes, uses, sells, offers for sale and imports into the United States musical instruments,including percussion instruments and related hardware and accessories for percussioninstruments, particularly drums.

4. Upon information and belief, Hoshino (U.S.A.) Inc. is a corporation incorporatedand existing under the laws of Pennsylvania, with a principal place of business located at 1726Winchester Road, Bensalem, Pennsylvania 19020 ("Hoshino USA"). Upon information andbelief, Hoshino USA makes, uses, sells, offers for sale and imports into the United Statesmusical instruments, including percussion instruments and related hardware for percussioninstruments, particularly drums.

JUR ISDICT ION AND VENUE

5. This lawsuit is a civil action for patent infringement arising under the patent lawsof the United States, 35 U.S.C. 101, et seq. This Court has subject matterjurisdiction pursuantto 28 U.S.C. 1331,1332 and 1338(a).

6. This Court has personal jurisdiction over Defendants because they havecommitted, and continue to commit, acts of infringement in the Commonwealth of Virginia


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and/or have engaged in continuous and systematic activities in the Commonwealth of Virginia,including in this District and Division.

7. On information and belief, within this District and Division, Defendants, directlyand/or through intermediaries and agents, have solicited, advertised (including throughwebsites), offered to sell, sold and/or distributed infringing products, and/or have induced thesale and use of infringing products.

8. Venue is proper in this District under 28 U.S.C. 1391(b)-(d) and 1400(b). Oninformation and belief, from and within this Judicial District, Defendants have committed acts ofinfringement in this District and Division and/or are deemed to reside in this District andDivision.

FACTUAL ALLEGAT IONS

9. On January 9, 2001, the United States Patent and Trademark Office issued U.S.Patent No. 6,172,291 Bl (the '"291 Patent"), entitled "Drum Pedal System with InterchangeableCam Elements." A true and correct copy of the '291 Patent is attached hereto at Exhibit A. The'291 Patent describes and claims a drum pedal system, a sprocket member assembly, and a drumpedal kit.

10. Pearl is the assignee and owner of the entire right, title and interest in the '291Patent with rights to enforce the '291 Patent and sue infringers.

11. The '291 Patent is valid, is enforceable, and was duly and legally issued by theUnited States Patent and Trademark Office in full compliance with Title 35 of the United StatesCode.

12. Defendants import, manufacture, market and/or sell drum pedals in the UnitedStates that include interchangeable cam profiles allowing a user to change pedal performance


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without removing the sprocket, including without limitation the Iron Cobra 600 Series (the"Accused Products").

C O U N T IINFRINGEMENT OF U.S. PATENT NO. 6.172.291 Bl

13. Plaintiff incorporates by reference the allegations in paragraphs 1 through 12 ofthis complaint.

14. Defendants have directly infringed and are still directly infringing the '291 Patentby making, using, selling, offering for sale and importing the Accused Products that embody thepatented invention in violation of 35 U.S.C. 271.

15. Defendants have indirectly infringed and are still indirectly infringing the '291Patent, both contributorily and by inducement, by making, using, selling offering for sale andimporting the Accused Products that embody the patented invention through suppliers,wholesalers, distributors and retailers in violation of U.S.C. 271(b) and (c). The AccusedProducts have no substantial non-infringing uses and are for use in systems, assemblies, and kitsthat infringe the '291 Patent. With knowledge of the '291 Patent, Defendants have and continueto induce others to infringe the '291 Patent without a good faith beliefthat the '291 Patent is notinfringed and/or invalid.

16. Defendants will continue to infringe the '291 Patent unless enjoined by this Court.17. Plaintiff has complied with all marking and notice requirements of 35 U.S.C.

287 by placing notice of the '291 Patent on all drum pedal systems with interchangeable camelements Plaintiffmanufactures and sells.

18. Defendants have infringed and are infringing the '291 Patent with knowledge atleast as early as on or about March 15, 2013, when counsel for Pearl sent a letter notifying Mr.William Reim, President of Hoshino (U.S.A.), and Mr. Toshitsugu Tanaka, PresidentofHoshino


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Japan, that the Accused Products infringe the '291 Patent. Defendants acknowledged receipt ofPlaintiffs' written notice of infringement, and counsel for the parties have exchanged additionalcorrespondence.

19. On information and belief, Defendants' infringement of the '291 Patent, since atleast March 15,2013, has been and continues to be willful.

20. This case is exceptional pursuant to the provisions of35 U.S.C. 285.21. Defendants' acts of infringement of the '291 Patent have caused and are

continuing to cause both irreparable harm and monetary damage to Plaintiffs.P R A Y E R FOR REL I E F

WHEREFORE, Plaintiff asks the Court to:a. Enter a judgment that Defendants have directly infringed, indirectly infringed,

contributorily infringed, and/or induced infringement of one or more claims of the '291 Patent;b. Issue a preliminary and thereafter a permanent injunction enjoining Defendants,

their subsidiaries, affiliates, parents, successors, assignees, officers, agents, servants, employees,and all persons acting in concert or in participation with them, or any of them, from further actsof infringement,contributory infringement, or inducement of infringement of'291 Patent;

c. Award Plaintiff all damages adequate to compensate for Defendants' directinfringement, indirect infringement, contributory infringement and/or inducement to infringe the'291 Patent, but in no event less than a reasonable royalty on Defendants' use of Plaintiffsinvention, including all pre-judgment and post-judgment interest at the maximum rate permittedby law;

d. Award treble damages pursuant to 35 U.S.C. 284 for Defendants' willfulinfringement of the '291 Patent;


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e. Award Plaintiff the costs of this action, including all disbursements, andattorneys' fees under 35U.S.C. 285, together withprejudgment interest;

f. Grant such other and further relief as the Court deems just and proper.DEMAND FOR JURY TR IAL

Plaintiffdemands a trial byjury on all issues properly triable byjury in this action.Dated July 3,2013.

Respectfully submitted,

rerry(^elark (E.D. Va. #34640)Brian R. Iverson (pro hac vice motionto befiled)BASS, BERRY & SIMS PLC1201 Pennsylvania Avenue NW, Suite 300Washington, D.C. 20004Tel: (202)827-2951Fax: (202) 478-0400Email: [email protected]

biverson@bassberry. comCounselfor Pearl Musical InstrumentManufacturing Co., Ltd., also translated to Englishas Pearl Musical Instrument Co.

Pearl Musical Instrument Manufacturing v. Hoshino Gakki Et. Al.

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