Lavagear v. Heatmax et. al

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    0 -IN THE UNITED STATES DISTRICT COURT FOR THE

    J ; m P ~ \ E \ T OF NEW YORKLAVAGEAR INC.,

    usPlaintiff,v.

    JURY TRIAL DEMANDEDHEATMAX, INC., MEDIHEAT, INC.,CVS PHARMACY, INC.,RITE AID CORPORATION, andW ALGREENS CO. KORMAN; J.Defendants.

    TEJN, M.J.PLAINTIFF'S ORIGINAL COMPLAINT

    Lavagear Inc. (hereinafter "Plaintiff') asserts this Complaint against HeatMax, Inc.,MediHeat, Inc., CVS Pharmacy, Inc., Rite Aid Corporation, and Walgreens Co. (hereinafter"Defendants"), pleading as follows:

    PARTIESI. Lavagear Inc. is a New York corporation with offices in Sayville, New York

    dedicated to the development and sale of products involving heat therapy.2. On information and belief, Heatmax, Inc. and MediHeat, Inc. ("Heatmax") are

    wholly owned subsidiaries ofKobayashi Americas and are corporations organized under thelaws of the state of Georgia, with a principle place of business in Dalton, Georgia. Oninformation and beliefHeatmax sells products in this district and nationwide via various internetand store based retailers.

    3. On information and belief, CVS Pharmacy, Inc. ("CVS") is a corporationorganized under the laws of the state ofRhode Island, with a principle place of business in

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    -

    Woonsocket, Rhode Island. On information and belief CVS sells products in this district andnationwide via the internet and its retail stores.

    4. On information and belief, Rite Aid Corporation ("Rite Aid") is a corporationorganized under the laws of the state of Delaware, with a principle place of business in CampHill, Pennsylvania. On information and belief Rite Aid sells products in this district andnationwide via the internet and its retail stores.

    5. On information and belief, Walgreens Co. ("Walgreens") is a corporationorganized under the laws of the state of Illinois, with a principle place of business in Deerfield,Illinois. On information and beliefWalgreens sells products in this district and nationwide viathe internet and its stores.

    NATURE OF THE ACTION6. This is an action for patent infringement.7. This Complaint alleges that Defendants have infringed, contributed to the

    infringement of, and/or actively induced others to infringe Plaintiffs United States Patent No.6,598,235 B2 ("the '235 Patent"), entitled "Garment, Undergarment Or Garment LinerAccommodating A Heating Device."

    JURISDICTION8. This action arises under the Patent Laws of the United States, 35 U.S.C. 1, et

    seq., including 35 U.S.C. 271. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331 and 1338(a).

    9. This Court has personal jurisdiction over Defendants because Defendants conductbusiness in this Judicial District, and because Defendants have infringed, contributed to theinfringement of, and/or actively induced others to infringe the '235 Patent in this Judicial District

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    as alleged in this Complaint. Additionally, Defendants continue to infringe, contribute to theinfringement of, and/or actively induce others to infringe the '235 Patent in this Judicial District.

    10. Venue is proper in this Court pursuant to 28 U.S.C. 139l(b), 1391(c), 1391(d)and/or 1400(b), in that a substantial part of the events giving rise to Plaintiffs claims occurred inthis Judicial District, Plaintiff is headquartered in this district, and Defendants are subject topersonal jurisdiction in this Judicial District.

    BACKGROUND FACTS11. The products and methods claimed in the '235 Patent were invented by April

    Athalene Bulla.12. Products manufactured by Ms. Bulla incorporating the inventions claimed in the

    '235 Patent were requested by and used by firemen and policemen working at the site of theSeptember 11, 2001 terrorist attacks in New York City.

    13. Ms. Bulla was awarded contracts with (1) The Army of Logistical Engineers forGround Zero, and (2) The Port Authority ofNew York and New Jersey for productsincorporating the inventions claimed in the '235 Patent.

    14. On August 2, 2000, U.S. Provisional Patent Application 60/222,486 was filed.On August 2, 2001, U.S. Patent Application No. 09/921,284, claiming the benefit ofU.S.Provisional Patent Application 60/222,486 was filed and later issued as the '235 Patent. Ms.Bulla is the sole named inventor on the '235 Patent.

    15. In 2000, Ms. Bulla met with Heatmax to discuss whether Heatmax would enterinto a license to sell products that incorporate the inventions claimed in the '235 Patent.

    16. Weeks after the meeting between Ms. Bulla and Heatmax, Heatmax informed Ms.Bulla that Heatmax did not intend to license the '235 Patent.

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    17. On information and belief, Heatmax manufactures, sells and/or offers for saleproducts which infringe the '235 Patent, including "HEATWRAPS"

    18. On information and belief, Defendant CVS manufactures, sells and/or offers forsale products which infringe the '235 Patent, including "HEA TWRAPS" and "ARTHRITISHEATWRAPS."

    19. On information and belief, Defendant Rite Aid manufactures, sells and/or offersfor sale products which infringe the '235 Patent, including "HEATWRAPS"

    20. On information and belief, Defendant Walgreens manufactures, sells and/or offersfor sale products which infringe the '235 Patent, including "HEAT WRAPS."

    21. On July 29, 2003, the '235 Patent was duly and legally issued. A true and correctcopy of the '235 Patent is attached hereto as Exhibit A.

    22. From the original date of the '235 Patent to July 7, 2011, Ms. Bulla was the ownerof the entire right, title, and interest in the '235 Patent.

    23. On July 7, 2011 Ms. Bulla assigned the '235 Patent, including the right to sue forpast infringements to Plaintiff, Lavagear Inc.

    CAUSE OF ACTION FOR INFRINGEMENT

    24. Plaintiff restates and incorporates by reference the allegations contained inParagraphs I through 23 above.

    25. Plaintiff is the assignee and current owner of the '235 Patent, includingassignment of the right to sue for past damages, and thus has standing to bring this lawsuit forcurrent and past infringements of the '235 Patent.

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    -26. Defendants have infringed and continue to infringe the '235 Patent by making,

    offering to sell, and/or selling (directly or through intermediaries) products which comprise bodyfitting garments for holding heating devices, including the products mentioned in paragraphs 17-20. Defendants have also contributed to the infringement of the '235 Patent, and/or activelyinduced others to infringe the '235 Patent by providing body fitting garments for holding heatingdevices, or parts thereof, including the products mentioned in paragraphs 17-20, to others for saleor use.

    27. Plaintiff is entitled to recover from Defendants the damages sustained by Plaintiffand prior owner of the '235 Patent as a result ofDefendants' wrongful acts in an amount subjectto proof at trial, including damages for lost sales and in no event less than a reasonable royalty.

    28. Defendants' infringement ofPlaintiff's exclusive rights under the '235 Patent willcontinue to damage Plaintiff's business, causing irreparable harm for which there is no adequateremedy at law, unless it is enjoined by this Court.

    29. To the extent that facts learned during the pendency of this case show thatDefendants' infringement is, or has been willful, Plaintiff reserves the right to request such afinding at time of trial.

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    PRAYERWHEREFORE, Plaintiff requests that the Court enter judgment in Plaintiff's favor and

    against Defendants, granting the following relied:A. An adjudication that Defendants have infringed and continue to infringe claims of

    the '23 5 Patent;B. An accounting of all damages sustained by Plaintiff as a result ofDefendants' acts

    of infringement of the '235 Patent;C. An award to Plaintiffof actual damages adequate to compensate Plaintiff for

    Defendants' acts of infringement of the '235 Patent, together with prejudgment interest;D. An award ofPlaintiff's cost of suit and reasonable attorneys' fees pursuant to 35

    U.S.C. 285 due to the exceptional nature of this case, or as otherwise permitted by law;E. A grant of preliminary and permanent injunctions enjoining Defendants, their

    officers, agents, servants, employees, principals, successors, assignees, and attorneys, and allthose in active concert or participation with them, from further acts of infringement, contributoryinfringement, and active inducement to infringe with respect to the claims of the '235 Patent;

    F. Such other and further relief in equity or law as this Court or jury may deemproper and just.

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    DEMAND FOR JURY TRIALPlaintiff respectfully demands a trial by jury of any and all issues so triable in this matter.

    DATED: July 21, 2011 Respectfully submitted,

    Henry J. CittoneDavid G. LindenbaumCITTONE & LINDENBAUM LLP122 West 27th StreetlOth FloorNew York, New York 10001Telephone: 212-710-5619Facsimile: 212-624-0244Attorneys for Plaintiff, Lavagear Inc.

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    EXHIBIT A

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    (12) United States PatentBulla

    (54) GARMENT, UNDERGARMENT ORGARMENT LINER ACCOMMODATING AHEATING DEVICE

    (76) Inventor: Athalene April Bulla, 47 BroadwayAve., Sayville, NY (US) 11782( *) Notice: Subject to any disclaimer, the term of thispatent is extended or adjusted under 35U.S.