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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION CHRISTOPHER PENA Plaintiff, v.

LOWES COMPANIES, INC. INCREDIBLE PLASTICS, KESSLER SALES CORPORATION Defendants COMPLAINT FOR PATENT INFRINGEMENT, FALSE MISMARKING TRADEMARK INFRINGEMENT, and IMPROPER INVENTION PROMOTION Plaintiff, CHRISTOPHER PENA, files this Complaint for theft of his invention, including claims of patent infringement and associated claims against LOWES COMPANIES, INC., INCREDIBLE PLASTICS, INC., and KESSLER CORPORATION.

Case No. 4:12-cv-00198 DEMAND for JURY TRIAL

I. 1. 2.

PARTIES

Plaintiff CHRISTOPHER PENA is a resident of San Juan, Hidalgo County, Texas. Defendant INCREDIBLE PLASTICS, INC. is a Foreign For-Profit Corporation which

resulted from the December 31, 2011, merger of two incorporated entities based in Ohio, Bloom Industries, Inc. and Pacific Housewares, Inc., to become INCREDIBLE PLASTICS, INC., now located at 1052 Mahoning Ave., Warren, OH, 44483, and may be served at the office of its registered agent, Ted. E. Bloom, 1052 Mahoning Avenue, Warren, OH 44483. 3. LOWE'S COMPANIES, INC. ("LOWE'S") is a Foreign For-Profit Corporation located at

1605 Curtis Bridge Rd Wilkesboro, NC 28697-2231, organized and existing under the laws of

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the State of North Carolina, and may be served at the office of its registered agent, Corporation Service Company, 211 E. 7th Street, Suite 620, Austin, TX 78701-3218 USA. 4. Defendant KESSLER SALES CORPORATION (KESSLER) is an Ohio corporation

with its principal place of business in Fremont, Ohio and Litchfield Park, Arizona. Kessler does business throughout the United States, including the State of Texas and this judicial district, and may be served at the office of its agent, Richard Wantz, 2228 Hayes Avenue, PO Box 1107, Fremont, OH 43420.

II. 5.

JURISDICTION AND VENUE

This is an action for patent infringement arising under the patent laws of the United

States, Title 35, United States Code. This Court has exclusive subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331 and 1338(a). 6. This Court has personal jurisdiction over each of the Defendants because each has

conducted, and does conduct, business within the Northern District of Texas. As set forth in this Complaint, each of the Defendants operates one or more electronic catalogs and advertising that are accessible from within the State of Texas and the Northern District of Texas. 7. As further set forth in this Complaint on information and belief, INCREDIBLE

PLASTICS and LOWES has contributed to and induced acts of infringement within the State of Texas and the Eastern District of Texas. Further, on information and belief, each of the Defendants, directly, or through intermediaries (including distributors, dealers, resellers, and others), ships, distributes, offers for sale, sells, and advertises its products and/or services in the United States, including within the State of Texas and the Northern District of Texas.

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INCREDIBLE PLASTICS and LOWES have committed the tort of patent infringement within the State of Texas and the Eastern District of Texas. 8. Jurisdiction over claims against KESSLER is provided by the American Inventors

Protection Act of 1999 (AIPA) inventors against deceptive practices of invention promotion companies and requires invention promoters to disclose in writing, among other things, their customers success in receiving net financial profit and license agreements as a direct result of their invention promotion services. Jurisdiction is further provided by 28 USC 1367 for state claims of Breach of Contract and Deceptive Trade Practices Act intertwined with the actions of KESSLER in this matter. 9. Venue is proper in the Northern District of Texas pursuant to 28 U.S.C. 1391(b),

1391(c), and 1400(b).

III. 10.

FACTS

Plaintiff PENA filed an application for a provisional patent in April 2004, and then a non-

provisional application for the Trash Pan in April 2005. PENA received patent 7,192,037 on March 20, 2007, for a novel trash can lid assembly. The patent is attached as Exhibit A. 11. Plaintiff PENA and Defendant KESSLER formed an agreement in May 2008, in which

PENA paid KESSLER to assist him in licensing and manufacture of PENAs invention. 12. As an invention promotion organization, KESSLER was obligated to provide certain

written information regarding its past successes to PENA, as detailed in 35 U.S.C. 297(a). KESSLER did not provide this information.

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13.

In the agreement, KESSLER agreed to protect the intellectual property belonging to

PENA. KESSLER made inquiries throughout the Mid-West to many manufacturing organizations in the last half of 2008. None of the manufacturers openly showed interest. 14. INCREDIBLE PLASTICS claims a copyright in 2009 for its website selling its infringing

product. Upon information and belief, KESSLER failed to protect PENAs intellectual property, disclosing PENAs invention to entities well positioned to infringe his patent. 15. In 2010, PENA became aware that his invention was being infringed by a product sold

online at http://www.trashpan.net, where a video on the site stated that the Trash Pan was protected by patent, and was available at LOWES. PENA contacted Ted Bloom, owner of INCREDIBLE PLASTICS, who told PENA that he received the idea and purchased the rights to the product from an undisclosed third party. 16. Ted Bloom asked his agent, Bo Rothenberg, to meet PENA in Arlington, TX, to discuss

PENAs invention. Rothenberg met with PENA on August 12, 2010, where Rothenberg videorecorded a demonstration of PENAs invention. 17. PENA contacted LOWEs General Counsel Gaither M. Keener Jr. by phone in late 2011

to inform LOWEs that it was selling a product that infringed on PENAs patent; LOWEs suggested that PENA have his attorney contact their attorney. 18. PENA and ROTHENBERG met in Arlington in August 2010 to discuss the matter,

videotaping a demonstration of the product. 19. Defendant INCREDIBLE PLASTICS manufactures infringing products that are sold by

LOWEs and may be purchased on the LOWES website at http://www.lowes.com/. On this site, consumers can view specifications, order and review a 32-gallon outdoor garbage can and a 32quart indoor kitchen trash can that are manufactured by INCREDIBLE PLASTICS.

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IV. 20.

PATENT INFRINGEMENT CLAIM - LOWES and INCREDIBLE PLASTICS Plaintiff CHRISTOPHER PENA owns all the rights and interests in United States Patent

7,192,037 (Patent), attached as Exhibit A. The Patent was duly and legally issued by the United States Patent and Trademark Office on March 20, 2007 after full and fair examination. 21. Defendant LOWES provides product information, offers products for sale, and sells

products over the Internet, operating electronic catalogs that display product information. 22. Defendant INCREDIBLE PLASTICS provides product information, provides sales

contacts and an instructional video on its website that is accessible from Texas. 23. Defendants LOWES and INCREDIBLE PLASTICS (the INFRINGERS) operate their

respective electronic catalogs alone in conjunction with various agents. In particular, the INCREDIBLE PLASTICS site located at http://www.trashpan.net/index.html instructs consumers to purchase its products at LOWES. A print-off of the homepage and contact page of the site is attached as Exhibit B. 24. The LOWES online catalog contains two products manufactured by INCREDIBLE

PLASTICS, including a 32-gallon outdoor garbage can and a 32-quart indoor kitchen trash can that are manufactured by INCREDIBLE PLASTICS. A print-out of the sites pages showing these two documents are attached as Exhibit C, which an excerpt from http://www.lowes.com. 25. 26. The Patent relates to a trash can lid assembly and method of trash collection. The INFRINGERS are infringing the Patent directly, and jointly with other entities by,

without authority, making, using, selling, and offering for sale in the United States, specifically the Northern District of Texas, their respective electronic catalogs, which electronic catalogs embody the patented inventions claimed in the Patent. 27. Each of the INFRINGERS is infringing the Patent literally.

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28. 29.

Each of the INFRINGERS is infringing the Patent under the doctrine of equivalents. Each of the INFRINGERS is actively, intentionally, or knowingly inducing or

contributing to infringement of the Patent by others, including the INFRINGERS respective agents, contractors, and actual and prospective customers who access the INFRINGERS respective online electronic catalogs and sales documentation (collectively, "Third Parties"). 30. Upon information and belief, each of the INFRINGERS are jointly infringing the Patent

with Third Parties. Upon information and belief, each of the INFRINGERS directs or controls certain activities of its respective Third Parties, which activities constitute one or more steps claimed in the Patent, and, as such, is liable for the infringements of the Patent that result from those activities alone or in combination with certain activities of the Defendants, which activities also constitute one or more steps claimed in the Patent; specifically, to the extent that each of the Defendants does not individually perform each and every step of one or more of the methods claimed in the Patent, then, upon information and belief, the Defendants respective Third Parties perform the remaining claim steps under the Defendants direction such that the combination of the activities of each Defendant and its respective Third Parties constitutes a performance of each and every step of Claim 12 of the Patent. 31. 32. Plaintiffs remedy by civil action for infringement is provided by 35 U.S.C. 281. Infringement of the Patent by INFRINGERS is willful and deliberate, making this case

exceptional pursuant to 35 U.S.C. 285 and justifying treble damages by 35 U.S.C. 284. 33. V. 34. Prior to the filing of this action, PENA complied with 35 U.S.C. 287(a). CLAIM OF FALSE MARKING, 35 U.S.C. 292 INCREDIBLE PLASTICS PENA hereby realleges and incorporates by reference, as if fully set forth herein, his

allegations in previous paragraphs.

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35.

INCREDIBLE PLASTICS maintains a website at http://www.trashpan.net/ that includes

an embedded video demonstration and sales pitch. The video claims that the products offered on the site are protected by patent. 36. Bo Rothenberg, an agent of INCREDIBLE PLASTICS who met with PENA, was not

able to provide any information regarding a patent protecting INCREDIBLE PLASTICS product. Nor did a reasonable patent search reveal a patent providing protection to the products of INCREDIBLE PLASTICS. 37. 35 U.S.C. 292 prohibits advertising efforts that include claims that a product is patented

when it is not, stating, Whoever uses in advertising in connection with any unpatented article the word patent , for the purpose of deceiving the public; Shall be fined not more than $500 for every such offense. 38. Only the United States may sue for the $500 per offense penalty, but a new section of

292 allows those who suffer a competitive injury as a result of false marking may sue in district court for recovery of damages to compensate. 39. Though INCREDIBLE PLASTICS claims to have a patent covering its products, it is

PENA who has properly been awarded a patent on a nearly identical device. As INCREDIBLE PLASTICS already had a commercial presence in the market for these types of products, and PENA is a sole inventor seeking to break into that same market, PENAs ability to find manufacturing partners has been damaged; PENA sues therefore for recovery of those damages. VI. 40. CLAIM OF IMPROPER INVENTION PROMOTION KESSLER CORPORATION 35 USC 297 lists a number of mandatory disclosures that an invention promoter must

make to prospective clients, including the following: a. the total number of inventions evaluated by the invention promoter for commercial potential in the past 5 years, as well as the number of those inventions that received

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positive evaluations, and the number of those inventions that received negative evaluations; b. the total number of customers who have contracted with the invention promoter in the past 5 years, not including customers who have purchased trade show services, research, advertising, or other nonmarketing services from the invention promoter, or who have defaulted in their payment to the invention promoter; c. the total number of customers known by the invention promoter to have received a net financial profit as a direct result of the invention promotion services provided by such invention promoter; d. the total number of customers known by the invention promoter to have received license agreements for their inventions as a direct result of the invention promotion services provided by such invention promoter; and e. the names and addresses of all previous invention promotion companies with which the invention promoter or its officers have collectively or individually been affiliated in the previous 10 years. 41. KESSLER claims not to be subject to this law, asserting it is not an invention promoter,

but the assertion is unsupportable. According to 297(c)(3), the term "invention promoter" includes anyone offering invention promotion services. According to 297(c)(4), the term invention promotion services" means the procurement or attempted procurement for a customer of a firm, corporation, or other entity to develop and market products or services that include the invention of the customer. 42. A cursory review of the communications between KESSLER and PENA, attached as

Exhibit D, show that KESSLERs focus was to assist PENA in finding a suitable marketing and manufacturing partner. KESSLERs assertion that it is not subject to this federal law is without support at best, and contemptuous, at worst. 43. As KESSLER was not provided the required disclosures, and in fact, did not properly

protect or notify PENA that he should understand that it was not procuring non-disclosure agreements with the entities to which it was sending information regarding PENAs invention, PENA asks that this Court award him triple damages in accordance with 297(b)(2).

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VII. 44.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for the Court to enter judgment:

a. For an award of actual and statutory damages from KESSLER to Plaintiff pursuant to 35 U.S.C. 297(b)(1); b. For a judgment for, and award of, treble damages from KESSLER to Plaintiff pursuant to 35 U.S.C. 297(b)(2); c. A permanent injunction enjoining Defendants from engaging in conduct in violation of 35 U.S.C. 297; and d. Entering a permanent injunction against each of the Defendants, enjoining them; their respective directors, officers, agents, employees, successors, subsidiaries, assigns; and all persons acting in privity, concert, or participation with each of the Defendants respectfully, from making, using, selling, or offering for sale in the United States, or importing into the United States, any and all products and/or services embodying the patented inventions claimed in the Patent; e. Awarding PENA such damages to which it is entitled for infringement of its patent from Defendants, pursuant to 35 U.S.C. 281, 284; f. Awarding PENA enhanced damages from Defendants, pursuant to 35 U.S.C. 284; g. Awarding PENA enhanced damages from INFRINGERS for willful infringement, pursuant to 35 U.S.C. 284; h. Awarding PENA pre-judgment and post-judgment interest from Defendants; i. Awarding PENA its costs, expenses, and fees, including reasonable attorneys fees, pursuant to 35 U.S.C. 285; j. Payment of costs of suit herein incurred pursuant to, inter alia, 35 U.S.C. 297(b)(1);

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k. Payment of reasonable attorneys fees pursuant to, inter alia, 35 U.S.C. 297(b)(1); l. An award of pre- and post-judgment interest; m. Awarding such other and further relief as the Court deems just, equitable, and proper.

JURY DEMAND - Plaintiff requests trial by jury of all claims that can be so tried. Respectfully submitted, Dated: March 29, 2012 /s/ Warren V. Norred Warren Norred Norred Law, PLLC 200 E. Abram, Suite 300 Arlington, TX 76010 817-704-3984 o 817-548-0161 f

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION CHRISTOPHER PENA Plaintiff, v. LOWES COMPANIES, INC. INCREDIBLE PLASTICS, KESSLER SALES CORPORATION Defendants

Case No. _____________________ APPENDIX

Exhibit A Exhibit B Exhibit C Exhibit D

US Patent 7,192,037 Print-Off of Web Site of Incredible Plastics http://www.trashpan.net/index.html Excerpt from Lowes Web Site http://www.lowes.com Copies of Communications with Kessler Sales

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