js products v. kabo tool company

8/3/2019 JS Products v. Kabo Tool Company

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WEIDE & MILLER, LTD.251 W. LAKEMEADBLVD.,

SUITE 530

LASVEGAS

,NEVADA 89128-8373(702) 382-4804

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R. Scott Weide, Esq.Nevada Bar No. [email protected]

Kendelee L. Works, Esq.Nevada Bar No. [email protected]

WEIDE & MILLER, LTD. 7251 W. Lake Mead Blvd., Suite 530Las Vegas, NV 89128-8373Tel. (702) 382-4804Fax (702) 382-4805

Attorneys for JS Products, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

JS PRODUCTS, INC.,

Plaintiff,

vs.

KABO TOOL COMPANY; JOHN DOEENTITIES I-X; and JOHN DOES XI-XX,

Defendants.

)))))))))))

Case No.: 2:11-cv-01856

COMPLAINT FOR DECLARATORYJUDGMENT OF PATENTINVALIDITY AND NON-INFRINGEMENT

(DEMAND FOR JURY TRIAL)

Plaintiff JS PRODUCTS, INC., a Nevada corporation, ("JSP") hereby alleges againsDefendant KABO TOOL COMPANY, ("Kabo"), John Doe Entities I-X, and John Does XI-XX

(also referred to herein as “Defendants”) as follows:

THE PARTIES

1. JSP is, and was at all times relevant hereto, a Nevada corporation doing business

in this Judicial District and having offices located in the City of Las Vegas in Clark County

Nevada.

2. Upon information and belief, Kabo is, and was at all times relevant hereto, a

Taiwanese company that regularly conducts business in this Judicial District by, among othe

things, distributing its products in this Judicial District, including via JSP.

3. John Doe Entities I-X are corporations or other business entities whose true

identities are presently unknown and who are sued by fictitious names. JSP believes that such




SUITE 530LASVEGAS,

NEVADA 89128-8373(702) 382-4804

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fictitious defendants are or may be responsible for the occurrences described in this Complain

and for the resulting damages to JSP. JSP will amend this Complaint when the true identities o

these defendants are known.

4. John Does XI-XX are individuals whose true identities are presently unknown

and who are sued by fictitious names. JSP believes that such fictitious defendants are or may be

responsible for the occurrences described in this Complaint and for the resulting damages to

JSP. JSP will amend this Complaint when the true identities of these defendants are known.

JURISDICTION AND VENUE

5. These claims arise under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and

2202, and the Patent Laws of the United States, 35 U.S.C. § 1 et seq.

6. This Court has subject matter jurisdiction based upon 28 U.S.C. §§ 1331, 1338(a

because this case involves federal questions arising under the patent and trademark laws of the

United States. 35 U.S.C. § 1 et seq.; 15 U.S.C. § 1051 et seq.

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

and 1400(b).

STATEMENT OF THE CASE

8. This is a civil action seeking a declaratory judgment that certain products tha

JSP imports into the United States and that JSP sells or offers for sale, more specifically certain

JSP wrenches, (the “Accused Products”), do not infringe certain intellectual property rights o

Kabo. In particular, JSP seeks a declaratory judgment that: 1) the Accused Products do no

infringe U.S. Patent No. 7,066,057 (the “’057 Patent”); and 2) the ‘057 Patent is invalid and/o

unenforceable. Exhibit A is a copy of the ‘057 Patent.

9. JSP further seeks damages for Kabo’s intentional interference with JSP’

contractual relations, Kabo’s interference with JSP’s prospective economic advantages, and fo

Kabo’s disparagement of JSP.

10. On August 29, 2011, counsel for Kabo informed JSP via written correspondence

that Kabo is the owner of the ‘057 Patent, that Kabo believed JSP’s conduct with regard to the

Accused Products was infringing the ‘057 Patent, and further demanded that JSP cease and




SUITE 530LASVEGAS,

NEVADA 89128-8373(702) 382-4804

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desist any allegedly infringing activity (“Cease and Desist Letter”).

11. On August 31, 2011, JSP responded to Kabo’s Cease and Desist Letter by

acknowledging receipt of Kabo’s demand but disagreeing with Kabo’s assertions regarding the

alleged infringement. In particular, by JSP’s response, JSP detailed inaccuracies in Kabo’

basis for asserting that the Accused Products infringe the ‘057 Patent and otherwise detailed the

basis for JSP’s determination that the Accused Products do not infringe the ‘057 Patent.

12. After receiving JSP’s response and analysis which clearly dispelled any basis tha

the Accused Products infringed the ‘057 Patent, Kabo contacted certain vendor(s) with whom

JSP had previously established contractual relationships and, upon information and belief

knowingly provided said vendor(s) with false information and/or made false claims regarding

JSP’s purportedly infringing activities, thereby negatively impacting JSP’s existing and

prospective contractual relationships and disparaging JSP.

13. Upon information and belief, Kabo was aware of JSP’s existing contractua

relationships and intentionally acted in order to interfere with said relationships.

14. As a result of Kabo’s conduct, JSP has suffered financial and business losses

including damage to its reputation.

THE PRESENCE OF A CASE OR CONTROVERSY

15. To avoid legal uncertainty and to prevent any further attempts to interfere with it

business, JSP has brought these claims for a declaratory judgment of unenforceability and/o

invalidity with regard to the ‘057 Patent. An actual justiciable controversy exists between th

Parties as to the infringement and invalidity of the Accused Products and the ‘057 Patent.

FIRST CLAIM FOR RELIEF

(Declaratory Judgment of Non-Infringement andInvalidity and/or Unenforceability of the ‘057 Patent)

16. JSP realleges and incorporates by reference the allegations of paragraphs 1-15.

17. The ‘057 Patent is invalid and/or unenforceable for failure to meet one or more

of the requirements of patentability under 35 U.S.C. § 101, et seq. including but not limited to

35 U.S.C. §§ 102, 103 and 112.




SUITE 530LASVEGAS,

NEVADA 89128-8373(702) 382-4804

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18. Even if the ‘057 Patent was deemed valid or enforceable, none of the Accused

Products infringe upon the ‘057 Patent.

19. Accordingly, JSP is entitled to a declaratory judgment that the claims of the ‘057

Patent are invalid and/or unenforceable and that the Accused Products do not infringe the ‘057

Patent.

SECOND CLAIM FOR RELIEF

(State Law Claim for Intentional Interference with Contractual

Relations and/or Prospective Economic Advantage)


21. JSP enjoyed various contractual relationships for the distribution and/or sale o

JSP’s products, of which Kabo was aware.

22. Intending to harm JSP by interfering with, preventing and/or causing termination

of those contractual relationships, Kabo and/or its principals, employees and/or agents

intentionally interfered with such relationships by asserting baseless claims of infringement and

liability and timing those claims to interfere with JSP’s existing contractual relations, resulting

in the loss of economic advantage to JSP.

23. Kabo is without any legal right, privilege or justification for the aforementioned

conduct.

24. The aforementioned conduct by Kabo has resulted in actual harm to JSP.

25. As a direct and proximate cause of Kabo’s conduct, JSP has sustained damage

in an amount to be proven at trial.

26. Kabo’s actions were knowing, willful, intentional and performed with malice and

warrant the imposition of exemplary damages.

27. As a direct and proximate cause of Kabo’s conduct, JSP has sustained specia

damages in the nature of attorneys’ fees and costs incurred to bring this action in an amount to

be proven at trial.

/ / /

/ / /




SUITE 530LASVEGAS,

NEVADA 89128-8373(702) 382-4804

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THIRD CLAIM FOR RELIEF

(Common Law Claim for Commercial Disparagement and/or Corporate Defamation)


29. Acting with the purpose of harming JSP and/or its business and reputation, Kabo

contacted individuals or companies having relationships with JSP and made false statement

regarding JSP and/or its products and services.

30. Kabo’s false statements intentionally called into question the reputation of JSP

and/or the quality of JSP’s products and services.

31. As a direct and proximate result of Kabo’s false statements to third parties, JSP

has sustained damages in an amount to be proven at trial.

32. As a direct and proximate cause of Kabo’s conduct, JSP has sustained specia

damages in the nature of attorneys’ fees and costs incurred to bring this action in an amount to

be proven at trial.

PRAYER FOR RELIEF

WHEREFORE, JSP respectfully requests that this Court enter a Judgment and Order in

its favor and against Kabo:

A. Declaring that the claims of the ‘057 Patent are invalid and/or unenforceable;

B. Declaring that no valid and enforceable claim of the ‘057 Patent has been

infringed;

C. Permanently enjoining Kabo and/or its officers, agents, directors, servants

employees, subsidiaries, and assigns, and all those acting under the authority of or in privy with

them or with any of them, from asserting or otherwise seeking to enforce the ‘057 Patent agains

JSP and/or its licensees or assigns;

D. Declaring that this case is an exceptional case under 35 U.S.C. § 285 and

awarding JSP its attorney’s fees, cost and expenses; and

E. Awarding JSP monetary damages in an amount to be proven at the time of tria

with regard to its claim for Intentional Interference with Contractual Relations and/o

Prospective Economic Advantage, as well as for Commercial Disparagement and/or Corporate




SUITE 530LASVEGAS,

NEVADA 89128-8373(702) 382-4804

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Defamation.

F. Awarding JSP attorney fees incurred as special damages with regard to it claim

for Intentional Interference with Contractual Relations, as well as for Commercia

Disparagement and/or Corporate Defamation.

G. Awarding JSP any further additional relief as the Court may deem just, prope

and equitable.

DATED this 17th

day of November, 2011.

Respectfully Submitted,

WEIDE & MILLER, LTD.

/s/ Kendelee L. Works

R. Scott Weide, Esq.Kendelee L. Works, Esq.7251 W. Lake Mead Blvd., Suite 530Las Vegas, NV 89128Attorneys for JS Products, Inc.



EXHIBIT A

EXHIBIT A

js products v. kabo tool company

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