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FILED

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGIN A
Norfolk Division

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SWIMWAYS CORPORATION and

VAP CREATIVE, LTD. Plaintiffs,

CaseNo.^MCAl^fS"
JURY TRIAL DEMANDED

INNOVATION FIRST INTERNATIONAL, INC. and INNOVATION FIRST LABS, INC.
Defendant.
COMPLAINT

Plaintiffs SwimWays Corporation ("SwimWays") and Vap Creative, Ltd. ("Vap")
(collectively, "Plaintiffs"), by counsel, for their Complaint against Defendants Innovation First International, Inc. ("Innovation First International") and Innovation First Labs, Inc. ("Innovation
First Labs") (collectively, "Defendants") allege as follows:
Parties

1.

Plaintiff Vap Creative, Ltd. is an Ohio corporation with its principal place of

business at 3721 Mohler Road, Cincinnati, Ohio 45241. It is the owner of United States Patent No.

6,860,785 ('"785 patent"), which was duly and legally issued on March 1, 2005.

A true and

accurate copy ofthe '785 patent is attached hereto as Exhibit A.

2.

Plaintiff SwimWays is a Virginia corporation with its principal place of business at

5816 Ward Court, Virginia Beach, Virginia 23455. It is an exclusive licensee, from Vap, of the
'785 patent.

3.

Defendant Innovation First International, upon information and belief, is a Texas

corporation with its principal place of business at 1519 Interstate 30 West, Greenville, TX 75402.

4.

Defendant Innovation First Labs, upon information and belief, is a Texas

corporation with its principal place of business at 1519 Interstate 30 West, Greenville, TX 75402.

5.

On information and belief, Defendant Innovation First Labs is a wholly-owned

subsidiary of Defendant Innovation First International.
Jurisdiction and Venue

6.
etseq.

Thisis an action for patent infringement arising under the Patent Act, 35 U.S.C. §§ 1

7.

This Court has jurisdiction over the subject matter of this action pursuant to 28

U.S.C. §§1331 and 1338(a).

8.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(c) because it is a district

in which Defendant is subject to personal jurisdiction.

9.

This Court has personal jurisdiction over Defendants because Defendants have

committed, directed, authorized, endorsed and/or approved of acts of infringement in the Eastern
District of Virginia; Defendants have caused tortious injury to SwimWays in the Eastern District of

Virginia, Norfolk Division; and Defendants have transacted substantial business in this judicial
district.

Facts Applicable to AH Counts

10.

Swimways is a worldwide manufacturer of innovative and commercially successful

leisure and recreational water products. The SwimWays brand has been around for over 35 years, and SwimWays continues to invest substantial resources into its product design and development to
create unique, quality products which are leaders in the industry. SwimWays' products can be
found in thousands of major retailers and individual pool dealers, both in the United States and
abroad.

11.

SwimWays' products include a line of Rainbow Reef® swimming fish products,

examples of which are shown in Exhibit B.

12.

The Rainbow Reef® products have been advertised through various advertising

media, including on the Internet and substantial advertising dollars have been spent in connection

with the products. The Rainbow Reef® products have appeared in print media, newspapers, trade
journals, magazines, promotional materials, and on the Internet, in addition to at retail locations.

13.

On information and belief, Defendants market their infringing products through

various advertising media, and those products are available forsale at retail locations throughout the
United States.

14.

Defendants sell a variety of robotic fish products, sold under the name "Aquabot"

("Accused Products") that infringe one or more claims of the '785 Patent. An example of the
Accused Products is shown in Exhibit C.
Count One

(Infringement of the '785 patent)

15.

Plaintiffs repeat and reallege, as if fully set forth herein, each and every allegation

contained in the foregoing paragraphs.

16.

Defendants manufacture, distribute, sell, offer to sell, and/or import the Accused

Products throughout the United States in the stream of interstate commerce.

17.

The Accused Products embody and infringe the '785 patent in violation of

SwimWays' statutory rights under 35 U.S.C. §§ 1 et seq.

18.
patent.

Defendants do not have license or authorization from SwimWays to utilize the '785

19.
the '785 patent.

Defendants' conduct also constitutes contributory and/or induced infringement of

20.

Defendants' infringement ofthe '785 patent has been willful.

21.

The foregoing acts of patent infringement by Defendants have caused, and unless

enjoined by this Court, will continue to cause immediate and irreparable injury and damage to
Plaintiffs, leaving Plaintiffs with no adequate remedy at law.
Prayer For Relief

WHEREFORE, Plaintiffs pray:

(a)

that this Court issue preliminary and permanent injunctive relief against Defendants, their respective officers, agents, servants, employees, attorneys, parent and

subsidiary corporations, assigns and successors in interest, and those persons in
active concert or participation with them, enjoining them from continued acts of

infringement of the '785 patent, including, without limitation, an injunction against
future sales ofthe Accused Products;

(b)

a judgment that the '785 patent is duly and legally issued,valid, and enforceable;

(c) (d)

a judgment that Defendants have infringed one or more claims of the '785 patent; an accounting and award of compensatory and punitive damages under 35 U.S.C.
§ 284 including, but not limited to, Plaintiffs' lost profits, but in any event not less
than a reasonable royalty, resulting from Defendants' infringement of the '785
patent, together with prejudgment and postjudgment interest;

(e)

that Defendants' acts be deemed willful and intentional and that Defendants be

required to pay to Plaintiffs additional damages equal to three times the actual
damages awarded pursuant to 35 U.S.C. § 284;

(f)

that this be adjudged an exceptional case and that Plaintiffs be awarded their

attorney fees, pursuant to 35 U.S.C. § 285 in addition to other authority;
(g) that this Court award Plaintiffs their costs incurred herein; and

(h)

for such other and further relief as this Court deems just.
JURY DEMAND

Pursuant to Federal Rule of Civil Procedure 38, Plaintiffs hereby demands a trial by jury
on all issues so triable.

Dated: February 12,2014

SWIMWAYS CORPORATION and VAP CREATIVE, LTI

By:

John oJ SwingU

Virgin^ State Bar No. 82?
Counsel for Plaintiffs

WILLIAMS MULLEN, P.C. 999 Waterside Dr., Suite 1700 Norfolk, VA 23510

Telephone: (757) 473-5327 Facsimile: (757) 629-0660 jswingle@williamsmullen.com

Craig L. Mytelka Virginia State Bar No. 31652
Counsel for Plaintiffs

WILLIAMS MULLEN, P.C. 999 Waterside Dr., Suite 1700 Norfolk, VA 23510

Telephone: (757) 473-5336
Facsimile: (757) 629-0660

cmytelka@williamsmullen.com