IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION BANYAN LICENSING

L.L.C., and GORDON RATHBUN, ) ) ) Plaintiffs, ) ) v. ) ) MEDILI TECHNOLOGY (H.K.) LIMITED, ) ) Defendant. ) ) _____________________________________ )

COMPLAINT FOR PATENT INFRINGEMENT JURY TRIAL DEMANDED

BANYAN LICENSING L.L.C. (“Banyan”) and GORDON RATHBUN (“Rathbun”) (collectively “Plaintiffs”) hereby file this Complaint for patent infringement against Defendant MEDILI TECHNOLOGY (H.K.) LIMITED (“Medili” or “Defendant”), and allege as follows: PARTIES 1. Banyan is a limited liability company organized and existing under the laws of Florida, with its principal place of business at 1061 NE 45 Street, Oakland Park, FL 33334. 2. Rathbun is a citizen of the United States of America, with an address at 979-E La Mesa Terrace, Sunnyvale, CA 94086. 3. On information and belief, Defendant Medili is organized under the laws of Hong Kong with a business address of Room 603, Kam Hon Industrial Building, 8 Wang Kwun Road, Kowloon Bay, Hong Kong.

JURISDICTION AND VENUE 4. This is an action for patent infringement arising under the patent laws of the United States, Title 35, United States Code. 5. This Court has subject matter jurisdiction pursuant to, inter alia, 28 U.S.C. §§ 1331 and 1338(a). 6. This Court may exercise personal jurisdiction over Medili based on its contacts with this forum, including regularly and intentionally doing business here. Medili, directly or through intermediaries, ships, distributes, offers for sale, sells, and advertises various products in this State and District, including, upon information and belief, the products accused of patent infringement. As set forth herein, upon information and belief, Medili has committed the tort of patent infringement, and has contributed to and induced acts of infringement by others, within this State and District. 7. Venue is proper in this Judicial District pursuant to, inter alia, 28 U.S.C. §§ 1391(b) and 1391(d). COUNT I INFRINGEMENT OF U.S. PATENT 6,574,809 8. 9. Plaintiffs reallege and incorporate by reference paragraphs 1-7 as if fully set forth herein. Plaintiff Rathbun owns all of the rights and interests in United States Patent No. 6,574,809 (“the ‘809 patent”) entitled “Pillow.” A true and accurate copy of the ‘809 patent is attached hereto as Exhibit A. 10. Plaintiff Banyan is the exclusive licensee of the ‘809 patent.

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11.

Plaintiff Banyan has the right to sue and collect for past, present and future infringement of the ‘809 patent.

12.

The ‘809 patent was duly and legally issued by the United States Patent and Trademark Office on June 10, 2003. The ‘809 patent is presumed valid.

13.

The ‘809 patent relates to a novel and nonobvious pillow, as shown and described in Exhibit A.

14.

On information and belief, Medili makes, uses, offers to sell, sells and/or imports in the United States products embodying the invention patented in the ‘809 patent, including the “CPAP Pillows” from Medili (hereinafter, “the Accused Pillows”), without the authority of Plaintiffs.

15.

Medili has infringed and continues to infringe the ‘809 patent within the meaning of 35 U.S.C. § 271.

16.

Pillows offered with the authority of Plaintiffs, which embody one or more claims of the ‘809 patent, are marked with notice of the ‘809 patent, in accordance with the provisions of 35 U.S.C. § 287.

17.

On information and belief, Medili intends for the Accused Pillows to be used, sold, and/or offered for sale by customers and/or other individuals or entities.

18.

On information and belief, customers of Medili have used, sold, and/or offered for sale the Accused Pillows provided to them by or through Medili, in the manner intended by Medili, to infringe the ‘809 patent.

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19.

Medili is actively, intentionally, and/or knowingly inducing the infringement of the ‘809 patent by others, including, but not limited to, customers that use, sell, and/or offer for sale the Accused Pillows provided by or through Medili.

20.

With full knowledge of Plaintiffs’ rights in the ‘809 patent, Medili has engaged in targeted solicitation of customers in an intentional effort to convince others to purchase the Accused Pillows from Medili without regard for Plaintiffs’ patent rights.

21.

On information and belief, Medili’s infringement has been intentional and willful, making this an exceptional case.

22. 23.

Plaintiffs have been damaged by Medili’s infringing conduct. Plaintiffs have been and will continue to be irreparably harmed by Medili’s infringement of the ‘809 patent unless injunctive relief is entered by the Court. COUNT II INFRINGEMENT OF U.S. PATENT 6,915,539

24.

Plaintiffs reallege and incorporate by reference paragraphs 1-23 as if fully set forth herein.

25.

Plaintiff Rathbun owns all of the rights and interests in United States Patent No.6,915,539 (“the ‘539 patent”) entitled “Pillow.” A true and accurate copy of the ‘539 patent is attached hereto as Exhibit B.

26.

Plaintiff Banyan is the exclusive licensee of the ‘539 patent.

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27.

Plaintiff Banyan has the right to sue and collect for past, present and future infringement of the ‘539 patent.

28.

The ‘539 patent was duly and legally issued by the United States Patent and Trademark Office on July 12, 2005. The ‘539 patent is presumed valid.

29.

The ‘539 patent relates to a novel and nonobvious pillow, as shown and described in Exhibit B.

30.

On information and belief, Medili makes, uses, offers to sell, sells and/or imports products embodying the invention patented in the ‘539 patent, including the Accused Pillows, without the authority of Plaintiffs.

31.

Medili has infringed and continues to infringe the ‘539 patent within the meaning of 35 U.S.C. § 271.

32.

Pillows offered with the authority of Plaintiffs, which embody one or more claims of the ‘539 patent, are marked with notice of the ‘539 patent, in accordance with the provisions of 35 U.S.C. § 287.

33.

On information and belief, Medili intends for the Accused Pillows to be used, sold, and/or offered for sale by customers and/or other individuals or entities.

34.

On information and belief, customers of Medili have used, sold, and/or offered for sale the Accused Pillows provided to them by or through Medili, in the manner intended by Medili, to infringe the ‘539 patent.

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35.

Medili is actively, intentionally, and/or knowingly inducing the infringement of the ‘539 patent by others, including, but not limited to, customers that use, sell, and/or offer for sale the Accused Pillows provided by or through Medili.

36.

With full knowledge of Plaintiffs’ rights in the ‘539 patent, Medili has engaged in targeted solicitation of customers in an intentional effort to convince others to purchase the Accused Pillows from Medili without regard for Plaintiffs’ patent rights.

37.

On information and belief, Medili’s infringement has been intentional and willful, making this an exceptional case.

38. 39.

Plaintiffs have been damaged by Medili’s infringing conduct. Plaintiffs have been and will continue to be irreparably harmed by Medili’s infringement of the ‘539 patent unless injunctive relief is entered by the Court. COUNT III INFRINGMENT OF U.S. PATENT D474,364

40.

Plaintiffs reallege and incorporate by reference paragraphs 1-39 as if fully set forth herein.

41.

Plaintiff Banyan owns all of the rights and interests in United States Design Patent No. D474,364 (“the ‘364 patent”) entitled “Anti-Wrinkle Pillow,” including all rights to sue and collect for past, present or future infringement of the ‘364 patent. A true and accurate copy of the ‘364 patent is attached hereto as Exhibit C.

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42.

The ‘364 patent was duly and legally issued by the United States Patent and Trademark Office on May 13, 2003. The ‘364 patent is presumed valid.

43.

The ‘364 patent relates to an ornamental design to a novel and nonobvious pillow, as shown and described in Exhibit C.

44.

On information and belief, Medili makes, uses, offers to sell, sells and/or imports products embodying the design patented in the ‘364 patent, including the Accused Pillows, without the authority of Banyan.

45.

Medili has infringed and continues to infringe the ‘364 patent within the meaning of 35 U.S.C. § 271.

46.

Pillows offered with the authority of Banyan, which embody the design claimed in the ‘364 patent are marked with notice of the ‘364 patent, in accordance with the provisions of 35 U.S.C. § 287.

47.

On information and belief, Medili intends for the Accused Pillows to be used, sold, and/or offered for sale by customers and/or other individuals or entities.

48.

On information and belief, customers of Medili have used, sold, and/or offered for sale the Accused Pillows provided to them by or through Medili, in the manner intended by Medili, to infringe the ‘364 patent.

49.

Medili is actively, intentionally, and/or knowingly inducing the infringement of the ‘364 patent by others, including, but not limited to, customers that use, sell, and/or offer for sale the Accused Pillows provided by or through Medili.

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50.

With full knowledge of Plaintiffs’ rights in the ‘364 patent, Medili has engaged in targeted solicitation of customers in an intentional effort to convince others to purchase the Accused Pillows from Medili without regard for Banyan’s patent rights.

51.

On information and belief, Medili’s infringement has been intentional and willful, making this an exceptional case.

52. 53.

Plaintiff Banyan has been damaged by Medili’s infringing conduct. Plaintiff Banyan has been and will continue to be irreparably harmed by Medili’s infringement of the ‘364 patent unless injunctive relief is entered by the Court. WHEREFORE, Plaintiffs respectfully pray for: (A) Judgment that Medili has infringed the ‘809, ‘539, and ‘364 patents in violation of

35 U.S.C. § 271; (B) Judgment that Medili has contributed to the infringement of the ‘809, ‘539, and

‘364 patents by others and induced the infringement of the ‘809, ‘539, and ‘364 patents by others, in violation of 35 U.S.C. § 271; (C) An injunction against further infringement of the ‘809, ‘539, and ‘364 patents by

Medili, its agents, servants, employees, officers, and all others controlled by them; (D) An injunction against further conduct constituting contributory infringement of

the ‘809, ‘539, and ‘364 patents or inducement of infringement of the ‘809, ‘539, and ‘364 patents by Medili, its agents, servants, employees, officers, and all others controlled by them;

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(E)

An award to Plaintiffs of such monetary damages to which they are entitled

pursuant to 35 U.S.C. § 284; (F) Judgment that Medili’s infringement of the ‘809, ‘539, and ‘364 patents has been

willful, and that the present case is exceptional within the meaning of 35 U.S.C. § 285; (G) (H) An award to Plaintiffs of enhanced damages pursuant to 35 U.S.C. § 284; An award to Plaintiffs of their costs, expenses, and fees, including reasonable

attorneys’ fees, pursuant to 35 U.S.C. §§ 284 and 285; (I) An award to Plaintiffs of interest on the amount awarded as damages at the

maximum rate allowed by law; and (J) Any further relief as the Court deems just, equitable, and proper. JURY TRIAL DEMAND Plaintiffs respectfully request that all issues so triable be tried by and before a jury. Date: February 8, 2012 s/ J. Mark Wilson J. Mark Wilson N.C. State Bar No. 25763 Moore & Van Allen PLLC 100 North Tryon Street Suite 4700 Charlotte, NC 28202-4003 Telephone: (704) 331-1000 Facsimile: (704) 339-5981 Email: markwilson@mvalaw.com

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