grand overseas v. walgreen - complaint

7/27/2019 Grand Overseas v. Walgreen - Complaint

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UNITEDSTATESDISTRICTCOURTEASTERNDISTRICTOFTEXAS

MARSHALLDIVISIONGRANDOVERSEAS,INC.,Plaintiff,

v.WALGREENCO.Defendant.

CaseNo.:_________________________JURY

PLAINTIFFSCOMPLAINTFORPATENTINFRINGEMENTPlaintiff Grand Overseas, Inc. (Grand Overseas) alleges against Defendant

Walgreen Co.:

THEPARTIES1. Plaintiff Grand Overseas, Inc. is a corporation duly organized and existing

under the laws of the State of California.

2. On information and belief Defendant Walgreen Co. is a Illinois corporationwith its principal place of business located at 104 Wilmot Road MS #1435, Deerfield,

Illinois. Walgreen Co. may be served with process by serving its registered agent, Prentice

Hall Corporation System, 211 E. 7th Street, Suite 620, Austin, Texas 787013218.

JURISDICTIONANDVENUE3. This is action for patent infringement arising under the patent laws of the

United States, 35 U.S.C. 101, etseq. This Court has jurisdiction over the subject matter ofthis action pursuant to 28 U.S.C. 1331 and 1338(a).

Case 2:13-cv-00670 Document 1 Filed 08/22/13 Page 1 of 7 PageID #: 1


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4. On information and belief Defendant has engaged in intentional, continuous,and systematic contacts within the State of Texas, and specifically within the Eastern

District of Texas. Defendant, alone or in conjunction with its authorized dealers, have

introduced into the stream of commerce infringing products with the knowledge at all

relevant times that some of those infringing products would be sold and used by

consumers in the State of Texas and the Eastern District of Texas. Products that infringe

the Plaintiffs patent are being offered for sale, sold, and being used within the Eastern

District of Texas, and the Plaintiffs cause of action arises at least in part from infringing

activities that occurred in this District. The Defendant is therefore deemed a resident of the

Eastern District of Texas under 28 U.S C. 1391(c), and venue is proper in the District

pursuant to 28 U.S.C. 1391(a)(1).

5. Defendant is subject to this Courts specific and general personal jurisdictionpursuant to the Texas Long Arm Statute, and consistent with the requirement of due

process, due to their infringements alleged herein, regularly doing business or soliciting

business, engaging in other persistent courses of conduct, and/or deriving substantial

revenue from goods and services provided to individuals and entities in this State and in

this District. In particular, within this judicial district, Defendant: (a) sells, or offers to sell,

the infringing products, (b) induces others to use, sell or offers to sell the infringing

products, or (c) transacts other business.

6. Defendant distributes its infringing products throughout the United States,including the Eastern District of Texas. Multiple Walgreen Co. stores are located within the

Eastern District of Texas, including those located in Marshall, Longview, Tyler, Lufkin,

Plano, Sherman, Beaumont and Texarkana.



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INFRINGEMENTOFU.S.PATENTNO.D590583S17. Plaintiff Grand Overseas is the owner of all right, title, and interest in United

States Patent No. D590583 S1 entitled Sandal (the 583 patent). The 583 is a design

patent that was duly and properly issued by the United States Patent and Trademark Office

(PTO) on April 21, 2009. A copy of the 583 patent is attached hereto as Exhibit A, and

incorporated by this reference.

8. Plaintiff actively markets and sales, within the Eastern District of Texas andthroughout the United States, products covered by the 583 Patent.

9. On information and belief, Defendant Walgreen Co. has been and now isdirectly infringing the 583 patent in this judicial district, and elsewhere in the United

States. Infringements by Walgreen Co. includes, without limitation, making, using, offering

for sale, and/or selling within the United States, and/or importing into the United States,

without license or authority from Plaintiff, sandals that infringe the 583 Patent, including

but not limited to Walgreen Co. product having No. WIC 425581 (04902267336) and WIC

425581 (04902267332).

10. Defendants acts of infringement have caused damage to Grand Overseas, andGrand Overseas is entitled to recover from Defendant the damages sustained by Grand

Overseas as a result of their wrongful acts in an amount subject to proof at trial.

Defendants infringement of Grand Overseas exclusive rights under the 583 patent will

continue to damage Grand Overseas, causing irreparable harm for which there is no

adequate remedy at law, unless enjoined by this Court.

11. Grand Overseas is informed and believes, and on that basis alleges, thatWalgreen Co. is fully aware of Grand Overseas patent portfolio including the '583 patent;



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including but not limited to Product No. WIC 425581 (04902267336) and WIC 425581

(04902267332).

15. Defendants acts of infringement have caused damage to Grand Overseas, andGrand Overseas is entitled to recover from Defendant the damages sustained by Grand

Overseas as a result of their wrongful acts in an amount subject to proof at trial.

Defendants infringement of Grand Overseas exclusive rights under the 034 patent will

continue to damage Grand Overseas, causing irreparable harm for which there is no

adequate remedy at law, unless enjoined by this Court.

16. Grand Overseas is informed and believes, and on that basis alleges, thatWalgreen Co. is fully aware of Grand Overseas patent portfolio including the '034 patent;

that Walgreen Co. has proceeded to infringe the '034 patent with full and complete

knowledge of the patent and its applicability to their products without any attempt to take

a license under the '034 patent and without a good faith belief that the '034 patent is

invalid or not infringed, and thus Walgreen Co.s infringement of the '034 patent is willful

and deliberate, entitling Grand Overseas to increased damages under 35 U.S.C. 284 and to

attorney's fees and costs incurred in prosecuting this action under 35 U.S.C. 285. Grand

Overseas reserves the right to allege, after discovery, that the remaining defendants

infringement of the '034 patent is willful and deliberate, entitling Grand Overseas to

increased damages under 35 U.S.C. 284 and to attorney's fees and costs incurred in

prosecuting this action under 35 U.S.C. 285.

17. As a result of the Defendants infringement of the 583 and 034 patents,Plaintiff has suffered monetary damages that are adequate to compensate it for

infringement under 35 U.S.C. 284, but in no event less than a reasonable royalt.



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PRAYERFORRELIEFWHEREFORE, Plaintiff request that this Court enter:

A. A judgment in favor of Plaintiff that Defendant has directly infringed the 583and 034 Patents;

B. A judgment and order requiring Defendant to pay Grand Overseas theirdamages, costs, expenses, prejudgment and postjudgment interest, and postjudgment

royalties for Defendants infringement of the 583 and 034 Patents as provided under 35

U.S.C. 284;

C. Permanently enjoining Defendant and its respective officers, agents,employees, and those acting in privity with them, from further infringement, including

contributory infringement and/or inducing infringement, of U.S. Patent Nos. D590583 S1

and D591,034 S1;

D. An award of attorney's fees pursuant to 35 U.S.C. 285 or as otherwisepermitted by law; and

E. Any and all other relief to which the Court may deem Plaintiff entitled.DEMANDFORJURYTRIAL

Plaintiff, under Rule 38 of the Federal Rules of Civil Procedure, request a trial by

jury of any issues so triable by right.



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Respectfully submitted,

_______________________________________

Carl R. Roth

[email protected] C. Roth

[email protected]

Amanda A. Abraham

[email protected] ROTH LAW FIRM,P.C.

115 N. Wellington, Suite 200Marshall, Texas 75670

Telephone: (903) 9351665Facsimile: (903) 9351797

ATTORNEYSFORPLAINTIFFGRANDOVERSEAS,INC.



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th.JS44 (Rev. 11/04) CIVIL COVER SHEETThe JS 44 civil cover sheetand the information contained herein ncitherreplace norsupplement the filing and service ofpleadings or otherpapers as required by law, except as providby 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 ofCourt tbr the purpose of initiatithe civil docket sheet. (SEE INSTRUCtiONS ON THE REVERSE OF THE FORM)I. (a ) PLAINTIFFS DEFENDANTS

GRAND OVERSEAS , INC. Walgreen Co .(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTtFF CASES) (IN U.S. PLAINTIFF CASES ONLY)NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THELAND INVOLVEt).

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)Brendan C. Roth , The Roth L aw Firm, 115 N. We llington, Ste. 200,Marshall , Texas 75670, 903-935-1665II. BASIS OF JURISDICTION (PlaceanX inOne BoxOnlv( III. CITIZENSHIP OF PRINCIPAL PARTIES(PIace anX inOne Box for Plain

(For Diversity Cases Only) and One Box for Defendant)C] t U.S. Government 3 Federal Question PTF DEF PTF I)EFPlaintiff (U.S. Govemment Not a Party) Citizen ofThis State El I El I Incorporated or Principai Itace 11 4 El 4of Business In This State

El 2 U.S. Government El 4 Diversity Citizen of Another Stale 2 13 2 Incorporated and Principal Place El 5 5Defendant ...,.. of Business In Another State(Indicate Citizenship of Patties ttt Item III)Citizen or Subject of a El 3 C] 3 Foreign Natiott C] Cs El 6Foreign_Country

IV. NATURE OF SUIT (PtaceanXinOneBoxOnly): CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES13 110 Insurance PERSONAL INJURY PERSONAL INJURY El 610 Agriculture El 422 Appeal 28 USC 158 El 400 State ReapportiottmentEl 120 Maritte C] 310 Airplane I] 362 Personal Injury - El 620 Other Food & Drug El 423 Withdrawal C] 410 AtttitrustEl 130 Miller Act El 315 Airplane Product Med. Malpractice 1] 625 Drug Reluled Seizure 28 tJSC 157 1] 430 Banks and BankiTigEl 140 Negotiable Instrument Liability El 365 Personal Injury - of Property 21 USC 881 C] 450 (ontitterceEl 150 Recovery ofOverpayment El 320 Assault, Libel & Product Liability El 630 Liquor Laws PROPERTY RIGHTS El 460 Deportatiott& Enforcement of Judgment Slander IC] 368 Asbeslos Personal El 640 R .R . & Tmck El 820 Copyrights El 470 Racketeer lnlluettced andEl 151 Medicare ,c i El 330 Federal Eittployers Injury Product El 650 Airline Regs. 830 Paiertt Corrupt OrganizationsEl 152 Recovery of Defaulted Liability Liability El 660 Occupational El 840 Trademark El 180 Coitsutiter CreditStudent Loans El 340 Marine PERSONAL PROPERTY Safely/Health El 491) Cable/Sat TV(ExcI. Veterans) C] 345 Marine Product El 370 Other Fraud El 690 Oiher El 810 Selective ServiceEl 153 Recovery ofOverpayment Liability El 371 Truth in Lending LABOR SOCIAL SECURITY El 850 SecuriticsiCommodirresiofVelcrants Benefits C] 350 Motor Vehicle El 380 Other Personal El 710 Fair Labor Standards El 861 HIA (1395ff) ExchangeEl 160 Stockholders Suits El 355 Motor Vehicle Property Damage Act El 862 Black Lang (923) 1] 875 Customer ChallengeEl 190 Other (ostract Product Liability El 385 Property Damage El 720 Labor/Mgmt. Relations C] 863 DIWC/DIWW(05g)) 12 USC 3410El 195 (onttsct Product Liability C] 360 Other Personal Product Liability El 730 Labor/Mgmt.Reporting EEl 864 SSID Title XVI C] 890 Other Statutory ActionsEEl 196 Franchise Injury & Disclosure Act Cl 865 RSI(Og)) El 891 Agricultural Acts

: REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS C] 740 Railway LaborAct FEDERAL, TAX SUITS C] 892 Economic Stabilization AEl 210 Laud Condetrtnatiott El 441 Voting El 510 Moliouts to Vacate El 790 Oilier Labor Litigation El 870 Taxes (U.S. Plaintiff C] 893 lEnviroutitsental MattersC] 220 Foreclosure El 442 Etnployntent Sentence El 791 Enipl. Eel. Inc. or Defendant) C] 894 Energy Allocation ActEl 230 Rent Lease & Ejeclntenl C] 443 I-lansing! Habeas Corpus: Security Act El 871 IRS -Third Party C] 895 Freedouti of InformationC] 240 Torts to Land Accommodations El 530 General 26 USC 7609 ActC] 245 Tori Product Liability El 444 Welfare C] 535 Death Penalty C] 9iJOAppeal of Fee DetenninatC] 290 All Other Real Property El 445 Airier. w/Disabiliiies - El 540 Mandamus & Other Utider Equal AccessEmployment El 550 Civil Rights to Justice1] 446 Amer. sr/Disabilities - C] 555 Prison (ondition C] 950 Consiitutiotiality ofOther State StatutesC] 440 Other Civil RightsV. ORIGIN (Place an X in One Box Onlv( Appeal to Distri

7 4 Transferred from Judge fromOriginal Removed from Remanded from Reinstated or another district 6 Multidistrict L MagistrateProceeding State Court Appellate Court Reopened (specify) Litigation Judement9 tleJ. (iil1ute tinder which you are f il ing (1)o not cite jurisdictional statutes unless diversity):Vi. CAUSE OF ACTION Brief description of causeVII. REQUESTED IN I CF[ECKIFTHISISA(1ASSACTION DEMANDS CI-IECKYESonIyiIdemandedincomplaint.COMPLAINT: UNDER F.R.C.P. 23 JURY DEMAND: Yes El NoVIII. RELATED CASE(S)

IF ANY (See instructions): JUDGE DOCKET NUMBER

08/21/2013FOR OFFICE USE ONLY

RFCEI 1cr 8 AMOUNT APPLYtNG IFP JUDGE MAG JUDGE

Case 2:13-cv-00670 Document 1-1 Filed 08/22/13 Page 1 of 1 PageID #: 8


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grand overseas v. walgreen - complaint

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