Marvin A. Glazer (AZ Bar No. 5885) email: mglazer@cvglaw.com 2 CAHILL GLAZER PLC 2141 East Highland Ave.

, Suite 155 3 Phoenix, Arizona 85016-4762 Ph. (602) 956-7000 4 Fax (602) 495-9475 Email: mglazer@cvglaw.com
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Attorneys for Plaintiffs Rolfs, LLC and Rolfs at Gainey Village, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

VIP PRODUCTS, LLC, an Arizona limited liability company, Plaintiff,

) ) ) ) vs. ) ) O2D, LLC, ) an Arizona limited liability company ) doing business as ) Cats With An Attitude, ) Defendant. ) _______________________________________)

CIV NO. ___________________

COMPLAINT FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF U.S. PATENT NOS. 7,201,117; 7,343,878; AND 7,363,880

Plaintiff VIP Products, LLC ("VIP"), for its Complaint against Defendant O2D, LLC ("O2D"), hereby alleges as follows: Subject Matter Jurisdiction: 1. An actual controversy having arisen between the parties in this action, this counterclaim arises under the Federal Declaratory Judgment Act, Title 28, United States Code, 2201-2202 and under the Patent Laws of the United States, Title 35, United States Code, 100 et seq.
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2.

Federal question jurisdiction of this counterclaim is conferred upon this Court

by Title 28, United States Code, 1338(a). Parties: 3. 4. 5. Plaintiff VIP is an Arizona limited liability company having a principal place VIP distributes a variety of pet toys and other pet-related products, including Upon information and belief, DefendantO2D is an Arizona limited liability of business at 16515 S. 40th Street, Suite 121, Phoenix, Arizona 85048 tennis balls incorporating squeakers. company doing business as "Cats With An Attitude", and having a business address in Carefree, Arizona. Facts Common to All Counts of the Complaint: 6. 7. 8. 9. Exhibit A attached hereto is a true and correct copy of a letter dated November Within Exhibit A, attorney Duckworth advises that he represents Defendant Within Exhibit A, O2D asserts that it owns U.S. Patent No. 7,201,117; U.S. Within Exhibit A, O2D asserts that certain tennis balls incorporating squeakers 20, 2013 from attorney David G. Duckworth to Plaintiff VIP. O2D regarding intellectual property matters. Patent No. 7,343,878; and U.S. Patent No. 7,363,880. (the accused products), distributed and sold by VIP, infringe each of U.S. Patent Nos. 7,201,117; 7,343,878; and 7,363,880. 10. Within Exhibit A, O2D demands that VIP stop selling the accused products.

Count 1 - Declaratory Judgment of Non-Infringement of U.S. Patent No. 7,201,117: 11. 12. VIP repeats and re-alleges the allegations of Paragraphs 1-10 above as if fully An actual and justiciable controversy exists between Plaintiff VIP and
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set forth herein.

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Defendant O2D with respect to liability for infringement U.S. Patent No. 7,201,117. 13. 14. 15. USPTO. 16. 17. 18. 19. 20. 21. squeaker: U.S. Patent No. 7,201,117 expired at least as early as April 11, 2011. VIP can not infringe upon a patent that has expired. O2D can not demand that VIP cease the sale of tennis balls with squeakers U.S. Patent No. 7,201,117 contains two independent patent claims numbered Both claims 1 and 4 require the step of concealing said top of said sound As shown in the photographic image below, VIPs tennis balls with squeakers Attached as Exhibit B hereto is a copy of U.S. Patent No. 7,201,117. Attached as Exhibit C hereto is a printout from the web site of the U.S. Patent Attached Exhibit C indicates that U.S. Patent No. 7,201,117 expired by no later

and Trademark Office (USPTO) showing bibliographic data for U.S. Patent No. 7,201,117. than April 11, 2011 due to the failure of the owner to pay a required maintenance fee to the

based upon an expired U.S. patent. claim 1 and claim 4. device ... by covering said top with a piece of fabric. do not conceal the top of the squeaker, and do not include a fabric cover over the top of the

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22. 23. 24.

VIPs accused products are not produced in accordance with the method VIP is not liable for infringement of U.S. Patent No. 7,201,117 by reason of O2Ds assertion that the accused products infringe U.S. Patent No. 7,201,117

specified in independent claims 1 and 4 of U.S. Patent No. 7,201,117 . distributing and selling the accused products. was made in bad faith and without reasonably adequate investigation of such allegations. Count 2 - Declaratory Judgment of Non-Infringement of U.S. Patent No. 7,343,878: 25. 26. 27. 28. 29. the steps of: (a) forming a core of the toy including (i) an aperture, (ii) an exterior, and (iii) a thin puncturable sheet of material covering said aperture; *** (f) inserting said (see claim 1) [or a - see claims 2 and 3] hollow sound device through said opening in said fabric cover and into said aperture to puncture said sheet .... 30. 31. 31. The accused products are not produced by forming a core that includes an The accused products are not produced by inserting the squeaker in a manner Rather, when producing the accused toys, the core is formed without an
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VIP repeats and re-alleges the allegations of Paragraphs 1-24 above as if fully An actual and justiciable controversy exists between Plaintiff VIP and Attached as Exhibit D hereto is a copy of U.S. Patent No. 7,343,878. U.S. Patent No. 7,343,878 contains three independent patent claims numbered Claims 1, 2 and 3 of U.S. Patent No. 7,343,878 all require, among other things,

set forth herein. Defendant O2D with respect to liability for infringement U.S. Patent No. 7,343,878.

claim 1, claim 2, and claim 3.

aperture and a thin puncturable sheet of material covering the aperture. which punctures a puncturable sheet of material covering an aperture.

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aperture; a hole is later formed extending through both the fabric cover and core to provide a continuous passageway; the squeaker is then inserted into such continuous passageway. 32. Claim 1 of U.S. Patent No. 7,343,878 also requires the steps of: (e) forming an opening in said fabric cover in registration with said aperture by removing felt by cutting felt from above said aperture; (g) gluing replacement felt above said aperture. 33. 34. As shown in the photograph inserted in Paragraph 21 above, the accused Claims 2 and 3 of U.S. Patent No. 7,343,878 also require the steps of: (c) applying a fabric cover to said exterior of said core ...; (e) forming a slit opening in said fabric cover in registration with said aperture, said opening shaped and dimensioned to permit said hollow sound device to be inserted through said opening into said aperture. 35. 36. The accused products are not produced by forming a slit opening in a fabric Rather, the accused products are produced by simultaneously cutting a hole cover in registration with an aperture. through the fabric cover, and through the underlying core, to provide a continuous passageway into which the squeaker is then inserted. 37. 38. 39. VIPs accused products are not produced in accordance with the method VIP is not liable for infringement of U.S. Patent No. 7,343,878 by reason of O2Ds assertion that the accused products infringe U.S. Patent No. 7,343,878 specified in independent claims 1, 2 and 3 of U.S. Patent No. 7,343,878. distributing and selling the accused products. was made in bad faith and without reasonably adequate investigation of such allegations. products do not include any replacement felt above the squeakers.

Count 3 - Declaratory Judgment of Non-Infringement of U.S. Patent No. 7,363,880: 40. VIP repeats and re-alleges the allegations of Paragraphs 1-39 above as if fully
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set forth herein. 41. 42. 43. 44. of: (a) forming a compressible elastically deformable hollow thin-walled elastomer core ...; (b) inserting a squeaker in said core ...; (c) applying adhesive and a fabric cover to said outer surface of said core; and, (d) heating said core, adhesive, squeaker, and fabric to an elevated temperature to secure said fabric cover on said outer surface extending over said squeaker. 45. 46. As shown in the photograph inserted in Paragraph 21 above, the accused The accused products are not produced by heating a core, adhesive, squeaker, products do not include a fabric cover that extends over the squeaker. and fabric to an elevated temperature to secure the fabric cover on the outer surface extending over the squeaker. 47. 48. 49. 50. Rather, the accused products are produced by securing the fabric cover to the VIPs accused products are not produced in accordance with the method VIP is not liable for infringement of U.S. Patent No. 7,363,880 by reason of O2Ds assertion that the accused products infringe U.S. Patent No. 7,363,880 core prior to insertion of the squeaker. specified in independent claim 1 of U.S. Patent No. 7,363,880. distributing and selling the accused products. was made in bad faith and without reasonably adequate investigation of such allegations. An actual and justiciable controversy exists between Plaintiff VIP and Attached as Exhibit E hereto is a copy of U.S. Patent No. 7,363,880. U.S. Patent No. 7,363,880 contains a single independent patent claim Claim 1 of U.S. Patent No. 7,363,880 requires, among other things, the steps Defendant O2D with respect to liability for infringement U.S. Patent No. 7,363,880.

numbered claim 1.

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Claims for Relief: WHEREFORE, Plaintiff VIP requests the following relief: 1. 2. 3. A judgment declaring that U.S. Patent Nos. 7,201,117; 7,343,878; and 7,363,880 have A judgment declaring that U.S. Patent No. 7,201,117 has expired. A judgment declaring that neither VIP nor its customers are liable to Defendant for not been infringed by VIP.

infringement of U.S. Patent Nos. 7,201,117; 7,343,878; and 7,363,880 by reason of the manufacture, sale, distribution, offering for sale and/or use of the accused products. 4. 5. 6. 7. A finding that Defendant O2D acted recklessly by making its assertions of patent An award to VIP of its costs in this action. A finding that this case is exceptional within the meaning 35 U.S.C. 285, entitling VIP For such further relief as the Court deems just and proper. infringement, and without making a reasonable investigation of the facts.

to an award of reasonable attorney fees.

JURY TRIAL DEMAND Plaintiff requests a trial by jury on all issues so triable in accord with Rule 38 of the Federal Rules of Civil Procedure.

Respectfully submitted, December 6, 2013 Date /s/Marvin A. Glazer Marvin A. Glazer email: mglazer@cvglaw.com -4762Cahill Glazer PLC 2141 East Highland Ave., Suite 155 Phoenix, Arizona 85016-4762 (602) 956-7000 (Telephone) (602) 956-4298 (Facsimile) Attorneys for Plaintiff VIP Products, LLC

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CERTIFICATE OF ELECTRONIC FILING/SERVICE I HEREBY CERTIFY that on December 6, 2013, counsel for the Plaintiff electronically filed the foregoing COMPLAINT FOR DECLARATORY JUDGMENT OF NONINFRINGEMENT OF U.S. PATENT NOS. 7,201,117; 7,343,878; AND 7,363,880 with the Clerk of the Court, along with attached Exhibits A, B, C, D and E, by using the Courts CM/ECF system. s/Marvin A. Glazer Marvin A. Glazer (AZ Bar No. 005885)

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