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Case 1:18-cv-00531-EJL

Document 1

Filed 11/27/18

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Alexander P. McLaughlin, ISB No. 7977 Melodie A. McQuade, ISB No. 9433 GIVENS PURSLEY LLP 601 W. Bannock Street Boise, Idaho 83701 Telephone (208) 388-1200 Facsimile (208) 388-1300 alexmclaughlin@givenspursley.com melodiemcquade@givenspursley.com

William B. Kircher, MO Bar No. 18743 (pro hac vice forthcoming) Nathan Oleen, MO Bar No. 59043 (pro hac vice forthcoming) Michael Owens, MO Bar No. 67002 (pro hac vice forthcoming) HUSCH BLACKWELL LLP

  • 4801 Main, Suite 1000

Kansas City, MO 64112

Telephone (816) 983-8000 Facsimile (816) 983-8080 Bill.Kircher@huschblackwell.com nathan.oleen@huschblackwell.com michael.owens@huschblackwell.com

Patrick D. Kuehl, MO Bar No. 52370 (pro hac vice forthcoming) RIMON

  • 4144 Pennsylvania Street

Kansas City, MO 64111

Telephone (816) 839-7471 Facsimile (816) 839-7471 patrick.kuehl@rimonlaw.com

14436208_1 [14489-2]

Attorneys for Plaintiff Huhtamaki, Inc.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

HUHTAMAKI, INC.,

Plaintiff,

vs.

BLUE APPLE MARKETING, LLC d/b/a BLUE APPLE ENVIRONMENTAL SOLUTIONS, LLC,

Defendant.

Case No. 1:18-cv-531

COMPLAINT FOR DECLARATORY JUDGMENT OF NON- INFRINGEMENT AND INVALIDITY

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Plaintiff Huhtamaki, Inc., for its Complaint for Declaratory Judgment of Non-

Infringement and Invalidity against Defendant Blue Apple Marketing, LLC d/b/a Blue Apple

Environmental Solutions, LLC, states and alleges as follows:

NATURE OF THE ACTION

  • 1. This is an action for declaratory judgment of invalidity and non-infringement of

U.S. Patent Design Patent No. D697,370 (“the ’370 Patent”), titled “Segmented Food Plate.”

  • 2. A copy of the ’370 Patent is attached to this Complaint as Exhibit A.

THE PARTIES

  • 3. Plaintiff Huhtamaki, Inc. (“Huhtamaki’) is a Kansas corporation with its principal

place of business located at 9201 Packaging Drive, De Soto, Kansas 66018.

  • 4. Huhtamaki manufactures and sells, among other things, disposable tableware,

packaging for consumer goods, and foodservice packaging.

  • 5. Defendant Blue Apple Marketing, LLC, doing business under the assumed

business name Blue Apple Environmental Solutions, LLC (“Blue Apple”), is an Idaho limited

liability company with its principal place of business located at 3777 West Twilight Drive,

Boise, Idaho 83703.

  • 6. Blue Apple represents that it makes and sells biodegradable and compostable

plates and lunch trays.

JURISDICTION AND VENUE

  • 7. This Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C.

§§ 1338, 1331, 2201 and 2202 because the Complaint states claims arising under an Act of

Congress relating to patents, including but not limited to 35 U.S.C. § 271, and seeks relief under

the Federal Declaratory Judgment Act.

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  • 8. This Court has personal jurisdiction over Blue Apple because it is incorporated

and maintains its principal place of business in Idaho.

  • 9. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and 1391(c)

because the sole defendant resides in this judicial district.

  • 10. A concrete, immediate, and justiciable controversy exists between Huhtamaki and

Blue Apple:

  • (a) On September 14, 2018, Blue Apple, through its counsel, sent a cease and

desist demand to Huhtamaki’s registered agent in Topeka, Kansas.

  • (b) Blue Apple’s demand asserted that Huhtamaki has sold, and continues to

sell, plates and trays that infringe Blue Apple’s ’370 Patent. Blue Apple requested Huhtamaki

verify in writing that it had ceased selling the allegedly infringing products by October 8, 2018,

and provide Blue Apple an accounting of sales and revenues of all such products.

  • (c) Blue Apple also attached to its September 14 demand a draft Complaint

alleging one count for infringement of the ’370 Patent against Huhtamaki.

  • (d) Blue Apple represented that it would file the attached Complaint in the

United States District Court for the Eastern District of Texas if Huhtamaki failed to provide a

timely and satisfactory response to Blue Apple’s demand.

  • (e) Huhtamaki, through its counsel, responded to Blue Apple’s cease and

desist demand by a letter dated October 9, 2018.

  • (f) Huhtamaki’s response identified prior art that invalidates the ’370 Patent

and also explained why, even if the ’370 Patent was valid, Huhtamaki’s plate does not infringe it.

  • (g) On October 18, 2018, Blue Apple sent a letter in reply to Huhtamaki’s

response to the cease and desist demand.

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  • (h) In its reply letter, Blue Apple stated that it disagreed with Huhtamaki’s

position regarding the validity and infringement of the ’370 Patent. Blue Apple gave Huhtamaki

a deadline of November 2, 2018, to comply with the demand or face infringement litigation.

  • 11. Blue Apple’s accusations and demands have placed a cloud over Huhtamaki’s

business and created an immediate, concrete, and justiciable controversy between Blue Apple

and Huhtamaki.

FACTUAL BACKGROUND

  • 12. Blue Apple claims that it filed U.S. Patent Application 29/444,090 for a design

directed to a “Segmented Food Plate,” and that, in response to this application, the United States

Patent and Trademark Office (“USPTO”) issued the ’370 Patent on January 14, 2014.

  • 13. The ’370 Patent claims “[t]he ornamental design for a segmented Food plate, as

shown and described.”

  • 14. The ’370 Patent describes the claimed design by referencing seven drawings, each

depicting the appearance of the plate from a different viewing angle.

  • 15. For example, Figure 1, shown below, purports to represent “a top perspective

view of the segmented food plate”:

Case 1:18-cv-00531-EJL Document 1 Filed 11/27/18 Page 4 of 21 (h) In its reply letter, Blue

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  • 16. Figure 6, shown below, purports to represent “a top plan view of the segmented

food plate”:

Case 1:18-cv-00531-EJL Document 1 Filed 11/27/18 Page 5 of 21 16. Figure 6, shown below, purports
  • 17. Blue Apple’s demand correspondence and draft Complaint allege that

Huhtamaki’s Savaday® by Chinet® Round 5-Compartment Cafeteria Plate, Huhtamaki Item

No. 21040 also 21033, Code Name SLP52W infringes the segmented-plate design claimed by the

’370 Patent.

  • 18. The image below is a photograph of the Huhtamaki Plate that appeared in the

February 2017 Huhtamaki Foodservice Product Catalog:

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19.

Blue

Apple’s

demand

correspondence

and

draft

Complaint

allege

that

the

following five elements of the Huhtamaki Plate infringe the design claimed by the ’370 Patent.

 

(a)

A similarly round shape having a raised rim around the circumference of

the plate.

 

(b)

Five compartments able to hold five meal components including a milk

carton or bottle.

 

(c)

A similarly square center compartment able to hold a ½ pint of milk carton

or bottle.

 

(d)

A similarly square center compartment defined by four ridges.

 

(e)

Four compartments defined by ridges extending out from the four corners

of the similarly square center compartment to the raised rim around the circumference of the

plate.

20.

According to Blue Apple, in November 2013, the New York City Department of

Education (“NYCDOE”) attached a photograph of a Blue Apple segmented-plate, which

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embodied the design claimed by the ’370 Patent, to a bid request distributed to potentially-

interested manufacturers, including Huhtamaki.

  • 21. The NYCDOE bid request solicited bids to supply it with plates for a SchoolFood

pilot program.

  • 22. The plates were to be “compostable” and “have 5 compartments able to hold 5

meal components including a milk carton\bottle,” among other specifications.

  • 23. According to Blue Apple’s “information and belief,” Huhtamaki knowingly and

willfully copied its segmented-plate design after learning of it through the photograph that the

NYCDOE attached to its bid request in November 2013.

  • 24. A concrete, immediate, and justiciable controversy exists between Huhtamaki and

Blue Apple based, in part, on Blue Apple’s cease and desist correspondence, draft complaint,

unilaterally-imposed deadline for Huhtamaki to satisfy Blue Apple’s demand, and by

Huhtamaki’s unequivocal assertion that the claims of the ’370 Patent are invalid and not

infringed.

  • 25. The ’370 Patent is invalid under the Patent Laws of the United States of America,

35 U.S.C. § 1 et seq., including but not limited to §§ 101, 102, 103 and 112.

  • 26. The claims of the ’370 Patent are obvious in light of prior art that was not

considered by the examining attorney.

  • 27. In 1996, Huhtamaki’s predecessor, The Chinet Company, designed and began

selling the segmented, five-compartment cafeteria plate (the “Chinet Plate”), which is depicted

next to Figure 6 of the ’370 Patent below:

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28.

The Chinet Plate contains the very same features of the ’370 Patent that Blue

Apple claims the Huhtamaki Plate infringe, specifically:

 

(a)

A similarly round shape having a raised rim around the circumference of

the plate.

 

(b)

Five compartments able to hold five meal components including a milk

carton or bottle.

 

(c)

A similarly square center compartment able to hold a milk carton or bottle.

(d)

A similarly square center compartment defined by four ridges.

(e)

Four compartments defined by ridges extending out from the four corners

of the similarly square center compartment to the raised rim around the circumference of the

plate.

29.

The plate design claimed by the ’370 Patent is obvious to one of ordinary skill in

the art in light of the combined teachings of the Chinet Plate and one or more pieces of prior art.

30.

As early as the 1970’s, the Swedish Company Pukeberg Glasbruk designed and

manufactured a plate composing a circular shape, with five compartments segmented by raised

ridges, including a center rectangular compartment and four peripheral compartments defined by

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the raised ridges extending outward from the center rectangular compartment, among other

similar features.

  • 31. The image below is a true and accurate depiction of the Pukeberg Glasbruk plate:

Case 1:18-cv-00531-EJL Document 1 Filed 11/27/18 Page 9 of 21 the raised ridges extending out ward
  • 32. The plate design claimed by the ’370 Patent is obvious to one of ordinary skill in

the art light of the combined teachings of the Pukeberg Glasbruk plate and one or more pieces of

prior art.

  • 33. On August 2, 1950, T. W. Kyte filed U.S. Patent Application S.N. 11,555 which

matured to issued U.S. D168,161 on November 11, 1952, for the dish design shown below.

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  • 34. This dish design also comprises a circular shape; five compartments segmented

by raised ridges, including a similarly square center compartment and four peripheral

compartments defined by the raised ridges extending outward from the center compartment,

among other similar features.

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  • 35. The plate design claimed by the ’370 Patent is anticipated or rendered obvious to

one of ordinary skill in the art in light of the combined teachings of the ‘161 patent either alone

or with one or more pieces of prior art.

  • 36. Upon information and belief, and as early as the 1980’s, a Vintage White STAUB

Fondue Pierrade Divided Dinner French Plate was designed and sold with five compartments

segmented by a raised ridges. These five compartments including a center rectangular

compartment and four peripheral compartments defined by the raised ridges extending outwardly

from the center rectangular compartment. The four peripheral compartments including one large

compartment, two medium compartments, and one small compartment located adjacent to raised

rim around the circumference of the plate. The image below is a true and accurate depiction of

the STAUB Plate:

Case 1:18-cv-00531-EJL Document 1 Filed 11/27/18 Page 11 of 21 35. The plate design claimed by

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  • 37. Such a design claimed in the ‘370 patent is anticipated or rendered obvious to one

of ordinary skill in the art in light of the combined teaching of the STAUB Plate either alone or

in combination with one or more pieces and prior art.

  • 38. Huhtamaki may and is likely to identify additional invalidating prior art during

the course of its continuing investigation and discovery in this case. Such counts of infringement

may include copyright infringement and/or trade dress infringement.

  • 39. Huhtamaki is likely to add additional counts of infringement against Blue Apple

during the course of its continuing investigation and discovery in this case.

  • 40. In addition (or in the alternative) the Huhtamaki Plate does not infringe the ’370

Patent.

  • 41. In this dispute, the relevant “ordinary observer” is a foodservice procurement

professional acting for a foodservice organization or an institution.

  • 42. Several differences in the overall appearance of the Huhtamaki Plate and the

design claimed by the ’370 Patent are immediately apparent to the ordinary observer:

Case 1:18-cv-00531-EJL Document 1 Filed 11/27/18 Page 12 of 21 37. Such a design claimed in

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  • 43. Perimeter Shapes. The plate design claimed by the ’370 Patent is circular, while

the perimeter of the Huhtamaki Plate consists of two straight sides and two curved sides, which

is commonly called “racetrack” shape in the industry.

  • 44. Compartment Shapes and Sizes. The design claimed by the ’370 Patent include

one center compartment, one large outer compartment, two medium outer compartments, and

one small outer compartment, while the outer compartments of the Huhtamaki Plate are all of

substantially equal size and of a similar shape.

  • 45. Lengths and Angles of Ridge Segments. The four radially-extending ridges of the

design claimed by the ’370 Patent include two longer ridge segments and two shorter ridge

segments, with the two shorter ones extending radially from the center compartment at a

relatively steeper angle. By contrast, the radially-extending ridges of the Huhtamaki Plate are all

generally the same length and extend radially from the center compartment at generally the same

angle.

  • 46. Location of the Center Compartment. The center compartment of the design

claimed by the ’370 Patent is offset from the center of plate, while the center compartment of the

Huhtamaki Plate is located in the proximate center for plate.

  • 47. Downwardly Sloped Ridges. The upper surfaces of the four radially extending

ridges of the design claimed by the ’370 Patent intersect in a horizontal plane with the outer

ridge of the plate near the top of the outer ridge while the radially-extending ridges of the

Huhtamaki Plate are substantially downward sloping at the intersection near the middle of the

outer edge.

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COUNT I Declaratory Judgment of Invalidity of the ’370 Patent

  • 48. Huhtamaki incorporates the preceding Paragraphs of this Complaint as if set forth

fully herein.

  • 49. A concrete, immediate, and justiciable controversy exists between Huhtamaki and

Blue Apple based, in part, on Blue Apple’s cease and desist correspondence, draft complaint, and

unilaterally-imposed deadline for Huhtamaki to satisfy Blue Apple’s demand, and by

Huhtamaki’s unequivocal assertion that the claims of the ’370 Patent are invalid and not

infringed.

  • 50. The ’370 Patent is invalid under the Patent Laws of the United States of America,

35 U.S.C. § 1, et seq., including but not limited to §§ 101, 102, 103 and 112.

  • 51. The claims of the ’370 Patent are invalid under 35 U.S.C. §§ 102-103, in part,

because features of the segmented-plate design claimed by the ’370 Patent would have been

obvious to a designer of ordinary skill in the art in light of the prior art and/or was otherwise not

novel as required by 35 U.S.C. §102.

  • 52. Blue Apple’s insistence on pressing this dispute even after Huhtamaki

communicated these obvious invalidity and non-infringement facts to it in writing renders this

case exceptional under 35 U.S.C. §285 and therefore justifies awarding Huhtamaki its attorneys’

and costs incurred in this action.

COUNT II Declaratory Judgment of Non-Infringement of the ’370 Patent

  • 53. Huhtamaki incorporates the preceding Paragraphs of this Complaint as if set forth

fully herein.

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  • 54. A concrete, immediate, and justiciable controversy exists between Huhtamaki and

Blue Apple based, in part, on Blue Apple’s cease and desist correspondence, draft complaint, and

unilaterally-imposed deadline for Huhtamaki to satisfy Blue Apple’s demand, and by

Huhtamaki’s unequivocal assertion that the claims of the ’370 Patent are invalid and not

infringed.

  • 55. Huhtamaki does not infringe, and has not infringed the ’370 Patent pursuant to 35

U.S.C. § 271, literally or under the doctrine of equivalents, by making, using, selling or offering

to sell Blue Apple’s products and services.

  • 56. Huhtamaki did not knowingly and willfully copy Blue Apple’s segmented-plate

design, whether after learning of it through the photograph that the NYCDOE attached to its bid

request in November 2013, or otherwise.

  • 57. Huhtamaki is entitled to a judgment declaring that it does not infringe, and has not

infringed the ’370 Patent by making, using, selling, or offering to sell its Savaday® by Chinet®

Round 5-Compartment Cafeteria Plate or any other of its products, either literally or under the

doctrine of equivalents.

ATTORNEYS’ FEES AND COSTS

It has been necessary for Huhtamaki to retain counsel to protect its interests and assert

this action. Huhtamaki is entitled to the reasonable attorneys’ fees and costs incurred in litigating

this action pursuant to Federal Rule of Civil Procedure 54(b), 35 U.S.C. §285, and any other

applicable rule, statute or laws.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Huhtamaki, Inc. respectfully requests that a judgment be entered

against Defendant Blue Apple as follows:

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  • A. That Judgment be entered declaring that Huhtamaki has not infringed the

’370 Patent;

  • B. That Judgment be entered declaring that Blue Apple is precluded from

obtaining injunctive relief, money damages, enhanced damages, costs and/or attorneys’ fees for

any alleged infringement of the ’370 Patent by Huhtamaki;

  • C. That Judgment be entered declaring the claims of the ’370 Patent invalid

and/or not directed to patent eligible subject matter;

  • D. That Judgment be entered permanently enjoining and restraining Blue

Apple, its officers, agents, employees, and attorneys from stating, implying, or suggesting that

Huhtamaki and/or its products infringe the ’370 Patent;

  • E. That Judgment be entered declaring that this case is exceptional in favor of

Huhtamaki under 35 U.S.C. §285, as construed in Octane Fitness, LLC v. ICON Health &

Fitness, Inc., 134 S. Ct. 1749 (2014) and Highmark Inc. v. Allcare Health Mgmt. Sys., 134 S. Ct.

1744 (2014), and accordingly Huhtamaki be awarded its reasonable attorneys’ fees and

expenses;

  • F. That Huhtamaki be awarded its costs in this action; and

  • G. That Huhtamaki be awarded such other and further relief as the Court may

deem just and proper.

DEMAND FOR A TRIAL BY JURY

Huhtamaki respectfully requests a trial by jury on all issues triable to a jury.

DATED this 27 th day of November, 2018.

GIVENS PURSLEY LLP

By

/s/ Alexander P. McLaughlin

Alexander P. McLaughlin – Of the Firm

Attorneys for Plaintiff Huhtamaki, Inc.

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EXHIBIT A

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AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURT

for the

District of Idaho

District of __________

__________

HUHTAMAKI, INC.

)

)

)

)

Plaintiff(s)

)

)

  • v. )

BLUE APPLE MARKETING, LLC d/b/a BLUE APPLE ENVIRONMENTAL SOLUTIONS, LLC

)

)

)

)

Defendant(s)

)

Civil Action No.

1:18-cv-531

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

Blue Apple Marketing, LLC d/b/a Blue Apple Environmental Solutions, LLC c/o Randol Hemmer, Registered Agent 3777 W. Twilight Drive Boise, Idaho 83703

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of

the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,

whose name and address are:

Alexander P. McLaughlin Melodie A. McQuade Givens Pursley LLP P.O. Box 2720 Boise, ID 83701-2720

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.

You also must file your answer or motion with the court.

Date:

CLERK OF COURT

Signature of Clerk or Deputy Clerk

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AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

1:18-cv-531

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

I personally served the summons on the individual at (place)

on (date)

; or

I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

I served the summons on (name of individual) , who is designated by law to
I served the summons on (name of individual)
, who is
designated by law to accept service of process on behalf of (name of organization)
on (date)
; or
I returned the summons unexecuted because
; or
Other (specify):
.
My fees are $
for travel and $
for services, for a total of $
.
0.00

I declare under penalty of perjury that this information is true.

Date:

Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

JS 44

(Rev. 06/17)

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CIVIL COVER SHEET

Page 1 of 2

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as

provided by 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 of Court for the

purpose of initiating the civil docket sheet.

(SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a)

PLAINTIFFS

DEFENDANTS

 

HUHTAMAKI, INC.

 

BLUE APPLE MARKETING, LLC d/b/a BLUE APPLE ENVIRONMENTAL SOLUTIONS, LLC

 
 
  • (b) County of Residence of First Listed Plaintiff

Johnson County, Kansas

County of Residence of First Listed Defendant

Ada County, Idaho

 
 

(EXCEPT IN U.S. PLAINTIFF CASES)

   

(IN U.S. PLAINTIFF CASES ONLY)

 
 

NOTE:

IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

 
  • (c) Attorneys (Firm Name, Address, and Telephone Number)

 

Attorneys (If Known)

 

Alexander P. McLaughlin, Melodie A. McQuade, Givens Pursley LLP, P.O. Box 2720, Boise, ID 83701-2720, (208) 388-1200

   

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

 
 
3

3

   

(For Diversity Cases Only)

and One Box for Defendant)

 

1

U.S. Government

Federal Question

 

PTF

DEF

PTF

DEF

 

Plaintiff

(U.S. Government Not a Party)

 

Citizen of This State

1

1

Incorporated or Principal Place of Business In This State

4

4

2

U.S. Government

 

4

Diversity

Citizen of Another State

2

2

Incorporated and Principal Place

5

5

 

Defendant

(Indicate Citizenship of Parties in Item III)

 

of Business In Another State

 
   

Citizen or Subject of a Foreign Country

3

3

Foreign Nation

6

6

IV.

NATURE OF SUIT (Place an “X” in One Box Only)

 

Click here for: Nature of Suit Code Descriptions.

 
 

CONTRACT

 

TORTS

FORFEITURE/PENALTY

   

BANKRUPTCY

 

OTHER STATUTES

 

110 Insurance

 

PERSONAL INJURY

 

PERSONAL INJURY

625 Drug Related Seizure

 

422 Appeal 28 USC 158

 

375 False Claims Act

 

120 Marine

310 Airplane

365 Personal Injury -

 

of Property 21 USC 881

423 Withdrawal

376 Qui Tam (31 USC

130 Miller Act

315 Airplane Product

Product Liability

690 Other

 

28

USC 157

3729(a))

140 Negotiable Instrument

Liability

367 Health Care/

   

400 State Reapportionment

150 Recovery of Overpayment

320 Assault, Libel &

Pharmaceutical

PROPERTY RIGHTS

 

410 Antitrust

& Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted

Slander 330 Federal Employers’ Liability

Personal Injury Product Liability 368 Asbestos Personal

820 Copyrights 830 Patent 835 Patent - Abbreviated

820 Copyrights 830 Patent 835 Patent - Abbreviated
 

430 Banks and Banking

450 Commerce 460 Deportation

Student Loans

340 Marine

Injury Product

New Drug Application

470 Racketeer Influenced and

(Excludes Veterans)

345 Marine Product

Liability

840 Trademark

Corrupt Organizations

153 Recovery of Overpayment

Liability

PERSONAL PROPERTY

 

LABOR

SOCIAL SECURITY

 

480 Consumer Credit

 

of Veteran’s Benefits

350 Motor Vehicle

370 Other Fraud

710 Fair Labor Standards

 

861 HIA (1395ff)

 

490 Cable/Sat TV

160 Stockholders’ Suits

355 Motor Vehicle

371 Truth in Lending

 

Act

862 Black Lung (923)

850 Securities/Commodities/

190 Other Contract

Product Liability

380 Other Personal

720 Labor/Management

863 DIWC/DIWW (405(g))

Exchange

195 Contract Product Liability

360 Other Personal

Property Damage

Relations

864 SSID Title XVI

890 Other Statutory Actions

196 Franchise

Injury

385 Property Damage

740 Railway Labor Act

865 RSI (405(g))

891 Agricultural Acts

362 Personal Injury -

Product Liability

751 Family and Medical

 

893 Environmental Matters

Medical Malpractice

 

Leave Act

895 Freedom of Information

 

REAL PROPERTY

 

CIVIL RIGHTS

PRISONER PETITIONS

790 Other Labor Litigation

FEDERAL TAX SUITS

 

Act

210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment

440 Other Civil Rights 441 Voting 442 Employment

Habeas Corpus:

463 Alien Detainee 510 Motions to Vacate

 

791 Employee Retirement Income Security Act

870 Taxes (U.S. Plaintiff or Defendant) 871 IRS—Third Party

 

896 Arbitration 899 Administrative Procedure Act/Review or Appeal of

240 Torts to Land

443 Housing/

Sentence

   

26

USC 7609

Agency Decision

 

245 Tort Product Liability

Accommodations

530 General

 

950 Constitutionality of

290 All Other Real Property

445 Amer. w/Disabilities -

535 Death Penalty

 

IMMIGRATION

State Statutes

 

Employment

Other:

462 Naturalization Application

 

446 Amer. w/Disabilities - Other 448 Education

540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee - Conditions of Confinement

465 Other Immigration Actions

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

  • V. ORIGIN (Place an “X” in One Box Only)

1
1

Original

2

Removed from

3

Remanded from

4 Reinstated or

5 Transferred from

6

Multidistrict

8 Multidistrict

Proceeding

State Court

Appellate Court

Reopened

Another District

Litigation -

Litigation -

 

(specify)

Transfer

Direct File

 

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

 

VI. CAUSE OF ACTION

28 U.S.C. §§ 2201 and 2202; 35 U.S.C. §§ 101, 102, 103 and 112; 35 U.S.C. § 271

 

Brief description of cause:

 
 

Declaration regarding non-infringement and invalidity of patent.

 

VII. REQUESTED IN

CHECK IF THIS IS A CLASS ACTION

DEMAND $

 

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER RULE 23, F.R.Cv.P.

JURY DEMAND:

Yes

Yes

No

VIII. RELATED CASE(S)

 

(See instructions):

IF ANY

 

JUDGE

DOCKET NUMBER

 

DATE

SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

JS 44 Reverse (Rev. 06/17)

Case 1:18-cv-00531-EJL

Document 1-2

Filed 11/27/18

Page 2 of 2

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by 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 of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a)

Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.

(b)

County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

(c)

Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".

II.

Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)

III.

Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.

IV.

Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable. Click here for: Nature of Suit Code Descriptions.

V.

Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statue.

VI.

Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII.

Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII.

Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.