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VIP Products v. O2D

VIP Products v. O2D

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Published by PriorSmart
Official Complaint for Declaratory Judgement in Civil Action No. None: VIP Products LLC v. O2D LLC. Filed in U.S. District Court for the District of Arizona, no judge yet assigned. See http://news.priorsmart.com/-l9CB for more info.
Official Complaint for Declaratory Judgement in Civil Action No. None: VIP Products LLC v. O2D LLC. Filed in U.S. District Court for the District of Arizona, no judge yet assigned. See http://news.priorsmart.com/-l9CB for more info.

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Published by: PriorSmart on Dec 07, 2013
Copyright:Public Domain


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, )an Arizona limited liability company,)
, )) vs.))
, )an Arizona limited liability company) doing business as) “Cats With An Attitude,)Defendant. ) _______________________________________)Marvin A. Glazer (AZ Bar No. 5885)email: mglazer@cvglaw.comCAHILL GLAZER PLC2141 East Highland Ave., Suite 155Phoenix, Arizona 85016-4762Ph. (602) 956-7000Fax (602) 495-9475Email: mglazer@cvglaw.comAttorneys for PlaintiffsRolf’s, LLC andRolf’s at Gainey Village, LLCUNITED STATES DISTRICT COURTDISTRICT OF ARIZONACIV NO. ___________________ 
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, thiscounterclaim arises under the Federal Declaratory Judgment Act, Title 28, United StatesCode, §§2201-2202 and under the Patent Laws of the United States, Title 35, United StatesCode, §§100 et seq.
2.Federal question jurisdiction of this counterclaim is conferred upon this Court by Title 28, United States Code, §1338(a).
3.Plaintiff VIP is an Arizona limited liability company having a principal placeof business at 16515 S. 40
 Street, Suite 121, Phoenix, Arizona 850484.VIP distributes a variety of pet toys and other pet-related products, includingtennis balls incorporating squeakers.5.Upon information and belief, DefendantO2D is an Arizona limited liabilitycompany doing business as "Cats With An Attitude", and having a business address inCarefree, Arizona.
Facts Common to All Counts of the Complaint:
6.Exhibit A attached hereto is a true and correct copy of a letter dated November 20, 2013 from attorney David G. Duckworth to Plaintiff VIP.7.Within Exhibit A, attorney Duckworth advises that he represents DefendantO2D regarding intellectual property matters.8. Within Exhibit A, O2D asserts that it owns U.S. Patent No. 7,201,117; U.S.Patent No. 7,343,878; and U.S. Patent No. 7,363,880.9.Within Exhibit A, O2D asserts that certain tennis balls incorporating squeakers(“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. VIP repeats and re-alleges the allegations of Paragraphs 1-10 above as if fullyset forth herein.12.An actual and justiciable controversy exists between Plaintiff VIP and
Defendant O2D with respect to liability for infringement U.S. Patent No. 7,201,117.13. Attached as Exhibit B hereto is a copy of U.S. Patent No. 7,201,117.14.Attached as Exhibit C hereto is a printout from the web site of the U.S. Patentand Trademark Office (“USPTO”) showing bibliographic data for U.S. Patent No. 7,201,117.15.Attached Exhibit C indicates that U.S. Patent No. 7,201,117 expired by no latethan April 11, 2011 due to the failure of the owner to pay a required maintenance fee to theUSPTO.16. U.S. Patent No. 7,201,117 expired at least as early as April 11, 2011.17. VIP can not infringe upon a patent that has expired.18. O2D can not demand that VIP cease the sale of tennis balls with squeakers based upon an expired U.S. patent.19. U.S. Patent No. 7,201,117 contains two independent patent claims numberedclaim 1 and claim 4.20.Both claims 1 and 4 require the step of “concealing said top of said sounddevice ... by covering said top with a piece of fabric”.21. As shown in the photographic image below, VIP’s tennis balls with squeakersdo not conceal the top of the squeaker, and do not include a fabric cover over the top of thesqueaker:

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