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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

OurPet’s Company, 1300 East Street Fairport Harbor, Ohio 44077, Plaintiff,

Rhode Island Textile Company, dba Westminster Pet Products, Inc., c/o James J. Carria, Registered Agent, 211 Columbus Avenue Pawtucket, Rhode Island 02903, and, Sergeant’s Pet Care Products, Inc., c/o CSC Lawyer’s Incorp. Serv. Co., 233 South 13th Street, Ste. 1900 Lincoln, Nebraska 68508, Defendants.

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Case No. Judge Magistrate

COMPLAINT FOR PATENT INFRINGEMENT, AND UNFAIR COMPETITION

(Jury Demand Endorsed Hereon)

NOW COMES the Plaintiff, OurPet’s Company, and for its Complaint against the Defendants hereby alleges and avers as follows: THE PARTIES 1. The Plaintiff, OurPet’s Company, is a corporation organized under the laws of Colorado, and has its principal place of business in Fairport Harbor, Ohio, which is in Lake County. 2. The Defendant, Rhode Island Textile Company, is a corporation organized under the laws of Rhode Island, and does business as Westminster Pet Products, Inc., and has is principal place

25 26 of business in Rhode Island.

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3. The Defendant, Sergeant’s Pet Care Products, Inc., is a corporation organized under the laws of Michigan, and has its principal place of business in Nebraska. JURISDICTION AND VENUE 4. This is an action for patent infringement. The patent claims arise under the patent laws of the United States, specifically 35 U.S.C. § 281. This Court has subject matter jurisdiction in this matter pursuant to 28 U.S.C. §§ 1331, 1338, and 35 U.S.C. § 281 because this action arises under the patent laws of the United States. Alternatively, this Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) as the amount in controversy exceeds the sum of $75,000 and the action is between citizens of different states. This Court also has supplemental jurisdiction over the claims in the Complaint which arise under the statutory and common law of the State of Ohio pursuant to 28 U.S.C. § 1367(a), because the state law claims are so

13 14 15 16 17 18 19 20 personal jurisdiction over a person who acts directly or by an agent, as to a cause of action 21 22 23 24 25 26 arising from the person’s: (1) Transacting any business in this state.” In this case, both Defendants transact business in this state. The Defendants supply infringing products that are widely sold throughout the state at various retailers. related to the federal claims that they form part of the same case or controversy and derive from a common nucleus of operative facts. 5. This Court has personal jurisdiction over the Defendants by virtue of their sale of products, transaction of business, and solicitation of business within the State of Ohio, within this judicial district and elsewhere. 6. Ohio’s Long-Arm Statute, RC § 2307.382(A)(1), provides that “A court may exercise

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7. Ohio’s Long-Arm Statute, RC § 2307.382(A)(2), provides that “A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person’s: (2) Contracting to supply services or goods in this state.” In this case, both Defendants contract to supply goods in this state. The Defendants supply infringing products that are widely sold throughout the state at various retailers. 8. Venue is proper in the Northern District of Ohio pursuant to 28 U.S.C. § 1391(b)(2) and/or 28 U.S.C. § 1400(b) because a substantial part of the events giving rise to the claims occurred in this judicial district, the Defendants are subject to personal jurisdiction in this district, and infringement occurred within this judicial district. Further, the Plaintiff, its witnesses and evidence, are located in this district. The Plaintiff’s patent prosecution counsel, likely a key witness, is also located in this district. Venue is proper here.

13 14 15 16 17 18 19 20 11. Along with proper nutrition, mental stimulation, physical exercise, and veterinary care, the 21 22 23 24 25 26 Plaintiff’s products help to maintain the health and wellness of pets. 12. The Plaintiff strives to develop truly unique and innovative products. In fact, almost all of the Plaintiff’s products are patented and are the only ones of their kind in the marketplace. FACTUAL ALLEGATIONS 9. Since its founding in 1995, the Plaintiff has designed, produced, and marketed a broad line of innovative, high-quality accessory and consumable pet products in the United States and overseas. 10. The Plaintiff has dedicated extensive time to the understanding of pet aging and its critical link to nature.

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13. The Plaintiff has become a leader in feeding systems to improve the health and comfort of pets. It has also developed interactive toys that provide fun, rewarding mental and physical challenges to pets. It has also developed healthy consumables for achieving and maintaining high mental, physical, and immune levels for pets. 14. Dr. Steve Tsengas is the founder and CEO of the Plaintiff corporation. 15. On April 16, 2002, United States Utility Patent No. 6,371,053, entitled “Simulated mouse toy having a prerecorded sound chip therein” (hereinafter referred to as the ‘053 patent) duly and legally issued to Steven Tsengas, as inventor, for the aforementioned simulated mouse toy having a prerecorded sound chip therein. (A true and accurate copy of the ‘053 patent as issued is attached hereto as “Doc. 1-1.”) 16. All rights to the ‘053 patent, including but not limited to, the right to recover for

13 14 15 16 17 18 19 20 infringement thereunder, has been assigned to the Plaintiff, OurPet’s Company. 21 22 23 24 25 26 19. The ‘053 patent (the Play-N-Squeak® mouse patent) is essentially a mouse-like pet toy having a sound device that senses motion and plays a sound to encourage the pet to continue to play with the toy. infringement thereunder, has been assigned to the Plaintiff, OurPet’s Company. 17. On July 2, 2013, United States Utility Patent No. 8,474,409, entitled “Ultrasonic stimulating pet toy” (hereinafter referred to as the ‘409 patent) duly and legally issued to Steven Tsengas, as inventor, for the aforementioned stimulating pet toy. (A true and accurate copy of the ‘409 patent as issued is attached hereto as “Doc. 1-2.”) 18. All rights to the ‘409 patent, including but not limited to, the right to recover for

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20. The ‘409 patent (the Play-N-Squeak® mouse sound patent) is essentially a pet toy that that emits ultrasonic vocalizations that replicate those of mouse-like sounds. 21. The Plaintiff has widely and continuously promoted and sold Play-N-Squeak® products. To date, the Plaintiff has invested considerable money in marketing and advertising. 22. Play-N-Squeak® toys are interactive toys that stimulate and reward positive mental and physical activity through mouse-like sounds, tactile feel, catnip aroma, and movement. 23. The Defendant, Rhode Island Textile Company dba Westminster Pet Products, Inc., has been and is currently making, using, offering for sale, selling, and/or importing pet toys that infringe the ‘053 and ‘409 patents. 24. The Defendant, Rhode Island Textile Company dba Westminster Pet Products, Inc., has infringed the Plaintiff’s patents by, including but not limited to, making, using, offering for

13 14 15 16 17 18 19 20 offering for sale, selling, and/or importing pet toys that infringe the ‘053 and ’409 patents. 21 22 23 24 25 26 26. The Defendant, Sergeant’s Pet Products, Inc., has infringed the Plaintiff’s patents by, including but not limited to, making, using, offering for sale, selling, and/or importing their “Zoink!®” “Chatty Critters.” (See a picture of the Sergeant’s Pet Care Products, Inc.’s accused instrumentality, front view, as “Doc. 1-6,” back view, as “Doc. 1-7,” and receipt for sale, selling, and/or importing their “ruffin’ it™” “Prowlin’ Pals” “Interactive Cat Toy with Catnip.” (See a picture of the Rhode Island Textile Company’s accused instrumentality, front view, as “Doc. 1-3,” back view, as “Doc. 1-4,” and receipt for sale of the product within this judicial district, as “Doc. 1-5,” all of which exhibits are attached hereto and incorporated herein by reference.) 25. The Defendant, Sergeant’s Pet Products, Inc., has been and is currently making, using,

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sale of the product within this judicial district, as “Doc. 1-8,” all of which exhibits are attached hereto and incorporated herein by reference.) 27. The aforementioned activities of all Defendants have also injured and threaten future injury to the Plaintiff. More specifically, the Defendants’ activities have diminished the Plaintiff’s goodwill and caused the Plaintiff to lose sales that it otherwise would have made but for the sales of the Defendants. 28. The Defendants are not authorized in any way to sell their infringing products or to use the patent owned by the Plaintiff. 29. The Plaintiff is entitled to an award of damages against Defendants for patent infringement, and is entitled to injunctive relief. CLAIM NO. 1 (Patent Infringement 35 U.S.C. § 271) (Versus Defendant Rhode Island Textile Company dba Westminster Pet Products, Inc. for Infringement of the ‘053 patent) 30. The Plaintiff hereby incorporates by reference each statement, whether written above or below, as if each is fully re-written herein.

17 18 19 20 21 22 23 24 under the doctrine of equivalents. 25 26 31. The Defendant, Rhode Island Textile Company dba Westminster Pet Products, Inc., has been and is currently making, using, offering for sale, selling, and/or importing pet toys that infringe the ‘053 patent. 32. The Defendant’s product infringes the ‘053 patent. (Doc. 1-3.) 33. The Defendant’s conduct is an infringement of the ‘053 patent, and in violation of 35 U.S.C. § 271 within this judicial district and elsewhere. The infringement is both literal and/or

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34. The Defendant will continue to make, use, offer for sale, sell, and/or import their infringing products unless enjoined by this Court. 35. The Defendant has been, and is, actively inducing infringement of the ‘053 patent, by offering for sale and selling their infringing products to dealers and/or retailers who have, and will continue to, offer them for sale and sell them to others. 36. The Defendant’s infringement is, and at all times has been, deliberate, willful, with full knowledge of the Plaintiff’s patent rights, and wanton, and as a result, the Plaintiff is entitled to trebled damages pursuant to 35 U.S.C. § 284. 37. This is an exceptional case within the meaning of 35 U.S.C. § 285, and the award of the Plaintiff’s attorney’s fees is justified. CLAIM NO. 2 (Patent Infringement 35 U.S.C. § 271) (Versus Defendant Rhode Island Textile Company dba Westminster Pet Products, Inc. for Infringement of the ‘409 patent) 38. The Plaintiff hereby incorporates by reference each statement, whether written above or below, as if each is fully re-written herein.

17 18 19 20 21 22 23 24 under the doctrine of equivalents. 25 26 39. The Defendant, Rhode Island Textile Company dba Westminster Pet Products, Inc., has been and is currently making, using, offering for sale, selling, and/or importing pet toys that infringe the ‘409 patent. 40. The Defendant’s product infringes the ‘409 patent. (Doc. 1-3.) 41. The Defendant’s conduct is an infringement of the ‘409 patent, and in violation of 35 U.S.C. § 271 within this judicial district and elsewhere. The infringement is both literal and/or

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42. The Defendant will continue to make, use, offer for sale, sell, and/or import their infringing products unless enjoined by this Court. 43. The Defendant has been, and is, actively inducing infringement of the ‘409 patent, by offering for sale and selling their infringing products to dealers and/or retailers who have, and will continue to, offer them for sale and sell them to others. 44. The Defendant’s infringement is, and at all times has been, deliberate, willful, with full knowledge of the Plaintiff’s patent rights, and wanton, and as a result, the Plaintiff is entitled to trebled damages pursuant to 35 U.S.C. § 284. 45. This is an exceptional case within the meaning of 35 U.S.C. § 285, and the award of the Plaintiff’s attorney’s fees is justified. CLAIM NO. 3 (Ohio Unfair Competition O.R.C § 4165.02 et seq.) (Versus Defendant Rhode Island Textile Company dba Westminster Pet Products, Inc.) 46. The Plaintiff hereby incorporates by reference each statement, whether written above or below, as if each is fully re-written herein. 47. All of the Defendant’s acts and conduct as alleged above in this Complaint also constitutes unfair competition as defined by Ohio Revised Code § 4165.02 et seq. CLAIM NO. 4 (Patent Infringement 35 U.S.C. § 271) (Versus Defendant Sergeant’s Pet Care Products, Inc. for Infringement of the ‘053 patent) 48. The Plaintiff hereby incorporates by reference each statement, whether written above or below, as if each is fully re-written herein. 49. The Defendant, Sergeant’s Pet Care Products, Inc., has been and is currently making, using, offering for sale, selling, and/or importing pet toys that infringe the ‘053 patent.

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50. The Defendant’s product infringes the ‘053 patent. (Doc. 1-6.) 51. The Defendant’s conduct is an infringement of the ‘053 patent, and in violation of 35 U.S.C. § 271 within this judicial district and elsewhere. The infringement is both literal and/or under the doctrine of equivalents. 52. The Defendant will continue to make, use, offer for sale, sell, and/or import their infringing products unless enjoined by this Court. 53. The Defendant has been, and is, actively inducing infringement of the ‘053 patent, by offering for sale and selling their infringing products to dealers and/or retailers who have, and will continue to, offer them for sale and sell them to others. 54. The Defendant’s infringement is, and at all times has been, deliberate, willful, with full knowledge of the Plaintiff’s patent rights, and wanton, and as a result, the Plaintiff is entitled

13 14 15 16 17 18 19 20 below, as if each is fully re-written herein. 21 22 23 24 25 26 57. The Defendant, Sergeant’s Pet Care Products, Inc., has been and is currently making, using, offering for sale, selling, and/or importing pet toys that infringe the ‘409 patent. 58. The Defendant’s product infringes the ‘409 patent. (Doc. 1-6.) to trebled damages pursuant to 35 U.S.C. § 284. 55. This is an exceptional case within the meaning of 35 U.S.C. § 285, and the award of the Plaintiff’s attorney’s fees is justified. CLAIM NO. 5 (Patent Infringement 35 U.S.C. § 271) (Versus Defendant Sergeant’s Pet Care Products, Inc. for Infringement of the ‘409 patent) 56. The Plaintiff hereby incorporates by reference each statement, whether written above or

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59. The Defendant’s conduct is an infringement of the ‘409 patent, and in violation of 35 U.S.C. § 271 within this judicial district and elsewhere. The infringement is both literal and/or under the doctrine of equivalents. 60. The Defendant will continue to make, use, offer for sale, sell, and/or import their infringing products unless enjoined by this Court. 61. The Defendant has been, and is, actively inducing infringement of the ‘409 patent, by offering for sale and selling their infringing products to dealers and/or retailers who have, and will continue to, offer them for sale and sell them to others. 62. The Defendant’s infringement is, and at all times has been, deliberate, willful, with full knowledge of the Plaintiff’s patent rights, and wanton, and as a result, the Plaintiff is entitled to trebled damages pursuant to 35 U.S.C. § 284.

13 14 15 16 17 18 19 20 65. All of the Defendant’s acts and conduct as alleged above in this Complaint also constitutes 21 22 23 24 25 26 unfair competition as defined by Ohio Revised Code § 4165.02 et seq. PRAYER FOR RELIEF / REQUEST FOR REMEDIES WHEREFORE, the Plaintiff prays that this Court enter an Order for the Plaintiff and against the Defendants, jointly and severally, comprising: 63. This is an exceptional case within the meaning of 35 U.S.C. § 285, and the award of the Plaintiff’s attorney’s fees is justified. CLAIM NO. 6 (Ohio Unfair Competition O.R.C § 4165.02 et seq.) (Versus Defendant Sergeant’s Pet Care Products, Inc.) 64. The Plaintiff hereby incorporates by reference each statement, whether written above or below, as if each is fully re-written herein.

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A) A preliminary injunction enjoining the Defendants from making, using, offering for sale, selling, and/or importing any product that infringes upon the ‘053 and ‘409 patents; B) A permanent injunction enjoining the Defendants from making, using, offering for sales, selling, and/or importing any product that infringes upon the ‘053 and ‘409 patents; C) An accounting for damages resulting from Defendants’ patent infringement and contributory infringement and the trebling of such damages because of the knowing, willful, and wanton nature of the Defendants’ conduct; D) An assessment of interest on the damages so computed; E) An award of attorney’s fees and costs in this action under 35 U.S.C. § 285; F) Judgment against Defendants indemnifying the Plaintiff from any claims brought against the Plaintiff for negligence, debts, malpractice, product liability, or other breaches of any duty

13 14 15 16 17 18 19 20 Defendants for selling infringing product; 21 22 23 24 25 26 I) Requiring Defendants to provide full disclosure of any and all information relating to its supplier or suppliers of infringing product; J) Requiring Defendants to provide the location of any and all manufacturing equipment, including but not limited to, molds used to manufacture infringing product; owed by the Defendants to any person who was confused as to some association between the Plaintiff and Defendants as alleged in this Complaint; G) Judgment against Defendants for an accounting and monetary award in an amount to be determined at trial; H) Requiring Defendants to account to the Plaintiff for all sales and purchases that have occurred to date, and requiring the Defendants to disgorge any and all profits derived by

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K) Requiring Defendants to destroy any and all manufacturing equipment used to manufacture infringing product or to deliver said equipment to the Plaintiff; L) Ordering a product recall of infringing product for destruction; M) Requiring Defendants to file with this Court and serve on the Plaintiff within thirty (30) days of this Court’s order a report setting forth the manner in which they complied with the order; N) Requiring Defendants to provide to Plaintiff all sales records, including but not limited to, email, mail, and advertising lists; O) Damages according to each cause of action herein; P) Prejudgment interest; and, Q) Any such other relief in law or equity that this honorable Court deems just. JURY DEMAND

13 14 15 16 17 18 19 20 21 22 23 24 25 26 ___/s/ David A. Welling____________________ C. VINCENT CHOKEN (0070530) DAVID A. WELLING (0075934) (lead counsel) Choken Welling LLP 3020 West Market Street Akron, Ohio 44333 Tel. (330) 865 – 4949 Fax (330) 865 – 3777 vincec@choken-welling.com davidw@choken-welling.com Counsel for the Plaintiff, OurPet’s Company Most Respectfully Submitted, WHEREFORE, the Plaintiff requests a trial by jury on all issues so triable by the maximum number of jurors permitted by law.

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