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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO Case No. 4:11-cv-2596

THERMAPURE, INC., a California corporation, 180 Canada Larga Rd. 6 Ventura, CA 93001
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Plaintiff, vs.

COMPLAINT FOR INFRINGEMENT OF U.S. PATENT NO. 6,327,812

ULTIMATE BUILDING MAINTENANCE dba Water Out 11 Northeast Ohio, c/o PAUL PALUMBO, Statutory Agent 12 4039 PEBBLE BEACH DR CANFIELD,OH 44406
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[Demand for Jury Trial]

Defendant.

For its complaint against ULTIMATE BUILDING MAINTENANCE dba WATER OUT NORTHEAST OHIO (Ultimate), Plaintiff THERMAPURE, INC. (ThermaPure) alleges as follows: JURISDICTION AND VENUE This is a civil action arising in part under laws of the United States relating to patents (35 U.S.C. 271, 281, 283, 284, and 285). This Court has federal jurisdiction of such federal question claims pursuant to 28 U.S.C. 1331 and 1338(a).
2.

The acts and transactions complained of herein were conceived, carried

out, made effective, and had effect within the State of Ohio and within this district, among other places. Venue is proper under 28 U.S.C. 1391(b), 1391(c) and 1400 (a), because Plaintiff is informed and believes that Ultimate has committed acts of
COMPLAINT

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infringement in the State of Ohio, County of Trumbell. Plaintiff is informed and believes that Defendants acts of willful patent infringement arose out of transactions and occurrences in Trumbell County. THE PARTIES
3.

Plaintiff ThermaPure, Inc. is a corporation duly organized and existing

under the laws of the State of California with its principal place of business located at 180 Canada Larga Rd., Ventura, California 93001.
4.

Plaintiff is informed and believes that Defendant Ultimate Building

Maintenance (Ultimate) is a corporation organized and existing under the laws of the State of Ohio which does business as Ultimate Building Maintenance and Water Out Northeast Ohio. Plaintiff is further informed and believes that Ultimate maintains its principal place of business at 3229 Youngstown Rd. SE, Warren, OH 44484. CLAIM FOR RELIEF INFRINGEMENT OF U.S. PATENT NO. 6,327,812
5.

Plaintiff incorporates by reference the preceding allegations of this Plaintiff is in the business of licensing the use of heat to remediate homes

Complaint as though fully set forth herein.


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and commercial buildings for the purposes of abating structures of mold, viruses, bacteria, insects (such as termites, bed buds, wood boring beetles, cockroaches, scorpions, and dust mites) and rodents. ThermaPures patented and proprietary processes are also used in construction dryout and in the removal of toxic chemicals such as volatile organic compounds.
7.

Plaintiff owns all right, title, interest in and has standing to sue for the

infringement of United States Patent No. 6,327,812 entitled, Method Of Killing Organisms And Removal Of Toxins In Enclosures which was duly granted by the

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COMPLAINT

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United States Patent and Trademark Office on December 11, 2001 (the 812 Patent). A true and correct copy of the 812 Patent is attached as Exhibit 1.
8. 9.

The 812 Patent is valid and enforceable. Defendant Ultimate has infringed and continues to infringe the 812

Patent by making, using, selling, or offering to sell in the United States products, devices or methods known as Water Out that embody or otherwise practice one or more of the claims of the 812 Patent, or by otherwise contributing to infringement or inducing others to infringe the 812 Patent. Plaintiff is informed and believes that the acts of infringement occurred in the State of Ohio, County of Trumbell.
10.

The infringing activities of Ultimate are and have been without the On information and belief, Plaintiff alleges that Ultimates infringement

authorization of Plaintiff.
11.

of 812 Patent is and has been willful and deliberate. Due to the intentional nature of Ultimates acts, this is an exceptional case in which Plaintiff is entitled to treble damages, attorneys fees and costs pursuant to 35 U.S.C. 284 and 285.
12.

On information and belief, Plaintiff alleges that Ultimate had knowledge

of the lawsuit and resulting verdict entered in the action entitled, ThermaPure, Inc. v. Water Out Drying Corp., United States District Court for the Eastern District of Texas, Case No. 2:06-CV-453, in which Water Out equipment, which is used by Ultimate, was found to infringe ThermaPures rights in the 812 Patent. Ultimate learned of the lawsuit and verdict of infringement through: (1) information provided to it by Water Out Drying Corp which advised of the verdict of infringement; (2) ThermaPures industry press releases; and (3) discussions with others in the industry. In spite of this knowledge that it is infringing the 812 Patent, Ultimate has continued to use the infringing process/device.
13.

As a member of the remediation industry, Ultimate appreciates the

scope of the 812 Patent. Notwithstanding Ultimates appreciation and knowledge of the value and scope of the 812 Patent, it has infringed the 812 Patent.
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COMPLAINT

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14.

As a direct and proximate result of Ultimates infringement,

contributory infringement and/or inducement to infringe the 812 Patent, Plaintiff has been and continues to be damaged in an amount to be proven at trial.
15.

Ultimates infringement is ongoing and has caused, and, unless enjoined

and restrained by this Court, will continue to cause Plaintiff great and irreparable injury to, among other things, Plaintiffs good will, business reputation, and market share. Plaintiff has no adequate remedy at law for the harm caused by Ultimates acts. Plaintiff is therefore entitled to injunctive relief enjoining and restraining Ultimate, and its respective officers, agents, servants, and employees, and all persons acting in concert with them, and each of them, from further infringement of the 812 Patent. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Ultimate as follows:


(1)

For a judicial determination and declaration that Ultimate has infringed the 812 Patent; For a judicial determination and decree that Ultimates infringement of the 812 Patent has been willful; For damages resulting from Ultimates infringement of the 812 Patent, and the trebling of such damages because of the willful and deliberate nature of Ultimates infringement;

(2)

(3)

(4)

In the alternative, an order that Ultimate pay Plaintiff all profits, gains, and advantages it has received or obtained from its unlawful conduct, in an amount to be proven at trial;

(5)

In the alternative, that a reasonably royalty for Ultimates infringement be awarded to Plaintiff pursuant to 35 U.S.C. 284; For injunctive relief enjoining against further infringement of the 812 Patent by Ultimate, its officers, directors, shareholders, agents,

(6)

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COMPLAINT

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servants, employees, and all other entities and individuals acting in concert with them or on their behalf; For an assessment of prejudgment interest on damages; For a declaration that this is an exceptional case under 35 U.S.C. Section 285 and for an award of attorneys fees and costs in this action; For such other and further relief as the Court deems just and equitable. DANIEL F. RYAN, LLC _______/s/___________________________ Daniel F. Ryan, Ohio S. Ct. Regis 0021427 P.O. Box 846 Dublin, OH 43017 Tel: (614) 325-1601 E-Mail: dryan.atty@gmail.com KNEAFSEY & FRIEND LLP ________/s/_________________________ SEAN M. KNEAFSEY(pro hac vice pending) skneafsey@kneafseyfriend.com SHAUN SWIGER (pro hac vice pending) sswiger@kneafseyfriend.com 800 Wilshire Blvd., Suite 710 Los Angeles, California 90017 Phone: (213) 892-1200 Fax: (213) 892-1208 Attorneys for Plaintiff ThermaPure, Inc. DEMAND FOR JURY TRIAL Plaintiff hereby demands a trial by jury of any issue triable by right of a jury pursuant to Rule 38 of the Federal Rules of Civil Procedure. ____________/s/________________ Daniel F. Ryan

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COMPLAINT