mcintire v. sunrise specialty company

8/4/2019 McIntire v. Sunrise Specialty Company

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Martensen ';'Wright PC

EDWARD J. WRIGHT, ESQ. (#109469)1 LOREN L. LUNSFORD, ESQ. (#213966)MARTENSEN .:. WRIGHT PC2 112 J Street, Second FloorSacramento, California 958143 Telephone: (916) 448-9088

Facsimile: (916) 448-90844 Attorneys for Plaintiffs5 Bryan C. McIntire6789101112131415161718

IN THE UNITED STATES DISTRICT COURTIN AND FOR THE EASTERN DISTRICT OF CALIFORNIA

BRYAN C. MCINTIRE, an Individual, ) Case No.))) COMPLAINT FOR PATENT) INFRINGEMENT))) DEMAND FOR JURY TRIAL))))

Plaintiff,v.

SUNRISE SPECIALTY COMPANY,a California Corporation,

Defendant.19 Plaintiffs, BRYAN C. MCINTIRE ("Plaintiff" or "McIntire"), sues defendan20 SUNRISE SPECIALTY COMPANY ("Defendant" or "Sunrise"), and alleges as follows:21 NATURE OF THIS ACTION22 This civil action arises out of patent infringement under the patent Laws o.23 the United States, 35 U.sc. 1 et seq., and, in particular, 35 U.S.c. 271.24 Plaintiff seeks relief from Defendant's infringement of Plaintiff's patent.25 rights under United States Patent No. D534,254.26 / / /27 / / /28 / / /

Complaint and Demand for Jury Trial


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PARTIES3. Plaintiff Bryan C. McIntire ("Mcintire") is an individual and a resident o

3 Sacramento County, California.

45678910111213

4. Plaintiff is informed and believes, and based thereon alleges, that defendanSunrise Specialty Company ("Sunrise") is a California Corporation with its principaplace of business in Oakland, California. McIntire is informed and believes, and basedthereon alleges, that Sunrise transacts business throughout the United States, includingthe State of California and within this judicial district.

6. This Court has personal jurisdiction over the Defendant, because Sunris14 maintains its principal place of business in the State of California.15 7. Venue in this district is proper under 28 U.sc. 1391 and 1400(b). Plainti16 is informed and believes, and based thereon alleges, that Defendants' infringemen17 activities took place in this judicial district.18 FIRST CAUSE OF ACTION19 FOR PATENT INFRINGEMENT20 (Infringement of United States Patent No. D534,254)21 8. Plaintiff hereby realleges and incorporates by this reference the allegation22 in paragraphs 1 through 7 as though fully set forth herein.23 9. McIntire is the owner of United States Design Patent No. D534,254, whic24 was duly and lawfully issued on December 26,2006, for the design of a toilet bowl C '25425 Patent"). A copy of the '254 Patent is attached as Exhibit" A".26 10. Plaintiff is informed and believes, and based thereon alleges, that Defendan27 deliberately copied Plaintiff's '254 Patent and incorporated the patent's design elements28 in infringing toilet bowl products. Defendant is sellng and/or distributing such product

2Complaint and Demand for Jury Trial


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1 without license and without Plaintiff's permission. A copy of a page from Defendant's2 product catalog depicting the infringing bowls is attached as Exhibit "B".3 11. Plaintiff is informed and believes, and based thereon alleges, that

4 Defendant, within the six-year period immediately preceding the filing of this Complaint5 wilfully and deliberately infringed, and is now infringing, the '254 Patent by advertising,6 importing, making, using, sellng and/or offering to sell the claimed subject matte7 without the consent of Plaintiff. Defendant's product literally infringes one or more8 claims of the '254 Patent under title 35 United States Code sections 271 and 281.9 12. Plaintiff has placed the required statutory notice on all products10 manufactured and sold by him, and/ or his licensees, under the '254 Patent, and has given11 written notice to Defendant of said infringement. Exhibit "e" depicts Plaintiff's marking12 of the patent on his product.13 13. Upon information and belief, Defendant's infringement of the '254 Paten14 has been wilful, deliberate and in conscious disregard of Plaintiff's rights.15 14. The activities of the Defendant as complained of in this Count One hav16 injured and been to the detriment of Plaintiff and as a result thereof, Plaintiff is entitled to17 recover damages adequate to compensate it for the infringement complained of herein18 but in no event less than a reasonable royalty, and hereby demands an accounting fo19 damages.20 15. The activities of Defendant as complained of in this Count One have caused21 and wil continue to cause Plaintiff substantial damage and irreparable injury by virtue o22 its past and continuing infringement, and Defendants wil continue to infringe the '25423 Patent, causing Plaintiff further damage and irreparable injury unless and unti enjoined24 by this Court.25 / / /26 / / /27 / / /28 / / /



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SECOND CAUSE OF ACTIONFOR STATE UNFAIR COMPETITION

(California Bus. & Prof. Code 17200) 16. Plaintiff hereby realleges and incorporates by this reference the allegations

in paragraphs 1 through 15 as though fully set forth herein.17. The acts of Defendant as described above constitute unlawful, unfair, o

fraudulent acts as well as unfair, deceptive, untrue or misleading advertising in violatioof Plaintiff's rights under California Business and Professions Code section 17200.

PRAYER FOR RELIEFPlaintiff hereby prays for the following relief:(A) That the Court adjudicate that Defendant infringed one or more claims o

Plaintiff's '254 Patent;(B) That Defendant, its agents, officers, servants, employees, distributors and

customers, and all others acting on Defendant's behalf, be temporarily, preliminarily andpermanently enjoined from all further infringement of the '254 Patent;

(C) An order requiring destruction of all of Defendant's infringing products.(D) That Plaintiff recover damages sustained as a consequence of Defendant'

infringement of Plaintiff's '254 Patent, including lost profits, and in no event less than areasonable royalty;

(E) That Plaintiff recover all of Defendant's profits derived from itsinfringement of Plaintiff's '254 Patent;

(F) That Plaintiff recover treble damages in fees and costs by reason oDefendant's wilful infringement;

(G) That Plaintiff recover pre-judgment and post-judgment interest on anmonetary judgment obtained in this action;

(H) That Plaintiff recover its reasonable attorneys' fees pursuant to 35 UnitedStates Code sections 285;

(I) That Plaintiff be awarded costs of suit;4

Complaint and Demand for Jury Trial


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123456 DATED: September 20,2011

(J) That the Court grant such other and further relief as it shall deem just.DEMAND FOR JURY TRIAL

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintifhereby requests a trial by jury of the issues so triable herein.

MARTENSEN .:. WRIGHT PC7 .8910111213141516171819202122232425262728

By: Qq~ 2)UNSFORDAttorneys for PlaintiffBRYAN C. MCINTIRE



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EXHIBIT II A"


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The Director of the United StatesPatent and Trademark OfficeHas received an application for a nev origi-nal, and ornamental design for an article ofmanufacture. The title . and description of thedesign are enclosed. The requirements of lawhave been. complied with, and it has been de-termined that a patent on the design shall. begranted under the law.Therefore, . this

Unted States PatentGrants to the person(s) having title to this patentthe right to exclude others from making, using,offering for sale, or sellng the design through-out the United States of America, or importingthe design into the United States of America forthe term offourteen years from the date of grantof this patent.

~W);dwDirector of the United States Palent and Trademark Offce


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(12) United States Design Patent (10) Patent No.:McIntire (45) Date of Patent: US D534,254 S** Dec. 26,2006(54) TOILET BOWL(76) Inventor: Bryan C. McIntire, Mac The AntiquePlumber Inc., 6325 Elvas Ave.,Sacramento, CA (US) 95819(**) Tenn: 14 Years(21) Appl. No.: 29/221,09(22) Filed: Jan. 10, 2005(51) LOC (8) Ci. .................................................... 23-02(52) U.S. Ci. ...................................................... D23/295(58) Field of Classification Search ........ D23/273-274,013/195-301,303,309,313; 4/663-665,4/300-300.3,312-313,328-329,353,420,4/443~6, 449, 459-460, 479-480, 902,4/905, DIG. 11, DIG. 12, DIG. 15

See applcation file for complete search history.(56) References Cited

U.S. PATE DOCUMENTS044,165 S * 611913 Cochr .................... 023/295.084,974 S * 9/1931 Brain ........................ 023/295089,343 S * 211933 Helfrch .................... 023/2952,499,115 A * 211950 Shobe ....................... 023/309

OTHR PUBLICATIONSClow Plumbing Fixture Cataog No. 50: toilets p. 65, 1942.*6 Sheets Labeled: "Old"--l0 Liter per Flush Bowl byApplcants 6 Photo Views 1/6-6... cited by exainer

Primary Examiner-Robert A. Delehanty(74) Attorney, Agent, or Firm-John R. Flanagan(57) CLAIMThe ornamental. design for a toilet bowl, as shown anddescribed.

DESCRIIONFIG. 1 is a perspective view of a toilet bowl showing mynew design;FIG. 2 is a left side elevational view of the toilet bowl ofFIG. 1;FIG. 3 is a right side elevational view of the toilet bowl ofFIG,l;FIG. 4 is a front elevational view of the toilet bowl of FIG.l',FIG. 5 is a rear elevational view of the toilet bowl of FIG.1;FIG. 6 is a top plan view of the toilet bowl of FIG. 1; and,FIG. 7 is a bottom. plan view of the toilet bowl of FIG. 1.

1 Clai, 3 Drawing Sheets


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t US D534,254 Sec. 26, 2006 Sheet 1 of 3

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u.s. Patent Dec. 26, 2006 Sheet 2 of 3 US D534,254 S

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u.s. Patent Dec. 26, 2006 Sheet 3 of 3 US D534,254 S

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Fig. 7


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EXHIBIT "B"


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WaterclosetsOur Oak pullchain toilet #901 shown below fight in Oil Rubbed Bronze finish, is a classic Victorian design featuring an oak tank and seat. Thetank is lined with solid copper and fitted with solid brass flush and fill valves and copper float balL. Pipes are solid brass and supply line is linedwith copper tubing. Angle stop with flange #52 provided. Includes #90 Oak Seat.Also shown below, left is the #901-W Porcelain Watercloset again featured with Old Bronze trim. Comes complete with #90-W White Seat and #52Angle Stop with Flange.All Sunrise Pullchain Waterclosets flush on 1.28 gallons of \vater.~ ~-:~".'.'\,~..': -..-.l

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EXHIBIT /I C"


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mcintire v. sunrise specialty company

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