Ozwest v. Ja-Ru - Complaint

7/25/2019 Ozwest v. Ja-Ru - Complaint

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COMPLAINT

(No. 2:16-cv-1019) - 1DWT 29938590v2 0106703-000001

Davis Wright Tremaine LLP

LAW OFFICES 1201 Third Avenue, Suite 2200

Seatt le, WA 98101-3045

206.622.3150 main · 206.757.7700 fax

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON

AT SEATTLE

OZWEST, INC.,

Plaintiff,

v.

JA-RU, INC.,

Defendant.

No. 2:16-cv-1019

COMPLAINT FOR PATENTINFRINGEMENT

JURY DEMAND

Plaintiff Ozwest, Inc. (“Ozwest”) alleges against Defendant Ja-Ru, Inc. (“Ja-Ru”) as

follows:

I.

NATURE OF ACTION

1. Ozwest asserts patent infringement claims to remedy Ja-Ru’s past and continued

willful infringement of two Ozwest patents related to rocket-shaped toys.

2. Ozwest seeks injunctive relief, monetary damages, and attorneys’ fees.

II.

PARTIES

3.

Ozwest is an Oregon company with its principal place of business Portland,

Oregon. Ozwest distributes high-quality toys for high-action play.

4. Ja-Ru is a corporation organized under the laws of the State of Florida.

Case 2:16-cv-01019 Document 1 Filed 06/30/16 of 5



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COMPLAINT

(No. 2:16-cv-1019) - 2DWT 29938590v2 0106703-000001



Seatt le, WA 98101-3045

206.622.3150 main · 206.757.7700 fax

III.

JURISDICTION AND VENUE

5. This action arises under the Patent Act, 35 U.S.C. § 1 et seq. The Court has

original subject matter jurisdiction of such claims pursuant to 28 U.S.C. §§ 1331 and 1338(a).

6. The Court has personal jurisdiction over Ja-Ru because it transacts business in

the State of Washington and has committed acts of patent infringement in this judicial district,

either directly or through its distributors, by selling or offering for sale products that are

covered by the claims of the patents-in-suit.

7. Venue in this district is proper under 28 U.S.C. §§ 1391(b) and (c) and 1400(b).

IV.

OZWEST AND ITS PATENTS

8. On February 4, 2014, the United States Patent and Trademark Office duly and

legally issued U.S. Patent No. D698,872 (the “’872 patent”), entitled “Toy Projectile.”

9. A true and correct copy of the ’872 patent is attached as Exhibit A.

10. On January 8, 2013, the United States Patent and Trademark Office duly and

legally issued U.S. Patent No. 8,348,789 (the “’789 patent”), entitled “Throwing toy with tail

and in-line tab grip.”

11. A true and correct copy of the ’789 patent is attached as Exhibit B.

12.

KMA Concepts Limited is the assignee of the ’872 patent and the ’789 patent

(collectively, the “Asserted Patents”). KMA Concepts Limited licensed to Nuo Feng Industrial

Co., Ltd. the right to use certain intellectual property, including the Asserted Patents, to design,

develop, manufacture, offer for sale, sell and ship goods incorporating the Asserted Patents. Under

the licensing agreement, KMA Concepts Limited also granted to Nuo Feng Industrial Co., Ltd. the

right to enforce the Asserted Patents and the right to delegate enforcement authority. Nuo Feng

Industrial Co., Ltd. then entered a distribution agreement with Ozwest, sublicensing to Ozwest

the right to use the Asserted Patents in connection with distribution of products incorporating

the Asserted Patents. The distribution agreement also delegated to Ozwest the sole and

exclusive right and responsibility to protect the Asserted Patents against infringement in the

United States.




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COMPLAINT

(No. 2:16-cv-1019) - 3DWT 29938590v2 0106703-000001



Seatt le, WA 98101-3045

206.622.3150 main · 206.757.7700 fax

13. Ozwest sells products protected by some or all of the Asserted Patents.

V.

DEFENDANT’S UNLAWFUL ACTIVITIES

14. Ja-Ru has been and is infringing the Asserted Patents by manufacturing,

importing, using, selling and/or offering for sale in the United States rocket-shaped toys,

including without limitation, a product known as Rocket Screamerz (the “Infringing Products”)

that infringe one or more claims of the Asserted Patents.

15. Ozwest and Ja-Ru are direct competitors.

16. Ja-Ru has sold and is selling the Infringing Products in the United States,

directly and through distributors, and through other channels of trade.

17.

Ja-Ru does not have a license, either exclusive or nonexclusive, to make, use,sell, or offer to sell products covered by the Asserted Patents.

VI.

CLAIMS

COUNT I – PATENT INFRINGEMENT

Infringement of the ’872 Patent

18. Ja-Ru’s acts constitute infringement on the claim of the ’872 patent in violation

of 35 U.S.C. § 271.

19.

Ozwest has been and continues to be damaged by Ja-Ru’s infringement in an

amount to be proven at trial and in a manner that cannot be fully measured or compensated in

economic terms and for which there is no adequate remedy at law. Ja-Ru’s actions have

injured, and will continue to injure, Ozwest’s business, market, reputation, and goodwill.

20. Ja-Ru’s unlawful acts of infringement of the ’872 patent will continue unless

enjoined by this Court.

COUNT II – PATENT INFRINGEMENT

Infringement of the ’789 Patent

21. Ja-Ru’s acts constitute infringement on one or more claims of the ’789 patent,

including without limitation, claim 13, in violation of 35 U.S.C. § 271.

22. Ozwest has been and continues to be damaged by Ja-Ru’s infringement in an

amount to be proven at trial and in a manner that cannot be fully measured or compensated in




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COMPLAINT

(No. 2:16-cv-1019) - 5DWT 29938590v2 0106703-000001



Seatt le, WA 98101-3045

206.622.3150 main · 206.757.7700 fax

DATED this 30th

day of June, 2016.

Davis Wright Tremaine LLPAttorneys for Plaintiff

By s/Warren RheaumeWarren Rheaume, WSBA #13627s/Lauren Rainwater

Lauren Rainwater, WSBA #436251201 Third Avenue, Suite 2200Seattle, WA 98101-3045Telephone: 206.622.3150Fax: 206.757.7700E-mail: [email protected]

[email protected]


mailto:[email protected]








EXHIBIT A

Case 2:16-cv-01019 Document 1-1 Filed 06/30/16 Page 1 of 7



EXHIBIT B




S 44 (Rev. 11/15) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except

rovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for theurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OFTHE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

I. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for

(For Diversity Cases Only) and One Box for Defendant

1 U.S. Government 3 Federal Question PTF DEF PTF D

Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5

Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6

Foreign Country

V. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act

120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC

130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))

140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionm

150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust

& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking

151 Medicare Act 330 Federal Employers’ Product Liabil ity 830 Patent 450 Commerce

152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark 460 Deportation

Student Loans 340 Marine Injury Product 470 Racketeer Influence

(Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizatio

153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 480 Consumer Credit

of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) 490 Cable/Sat TV

160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g)) 850 Securities/Commod

190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI Exchange

195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g)) 890 Other Statutory Acti

196 Franchise Injury 385 Property Damage 751 Family and Medical 891 Agricultural Acts

362 Personal Injury - Product Liability Leave Act 893 Environmental Matt Medical Malpractice 790 Other Labor Litigation 895 Freedom of Informa

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS Act

210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff 896 Arbitration

220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) 899 Administrative Proc

230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS—Third Party Act/Review or Appe

240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision

245 Tort Product Liability Accommodations 530 General 950 Constitutionality of

290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes

Employment Other: 462 Naturalization Application 446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration

Other 550 Civil Rights Actions

448 Education 555 Prison Condition

560 Civil Detainee -

Conditions of

Confinement

V. ORIGIN (Place an “X” in One Box Only)

1 OriginalProceeding

2 Removed fromState Court

3 Remanded fromAppellate Court

4 Reinstated or Reopened

5 Transferred fromAnother District(specify)

6 MultidistrictLitigation

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED INCOMPLAINT:

CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint

JURY DEMAND: Yes No

VIII. RELATED CASE(S)IF ANY

(See instructions):JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

OZWEST, INC. JA-RU, INC.

Duval County, Florida

Warren Rheaume, Lauren Rainwater Davis Wright Tremaine1201 Third Ave, Suite 2200, Seattle, WA 98101, (206) 622-3150

35 U.S.C. § 271

Patent infringement

06/30/2016 s/Lauren Rainwater




JS 44 Reverse (Rev. 11/15)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as

required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is

required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk o

Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, us

only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency andthen the official, giving both name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at

time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In lan

condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, no

in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "

in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendm

to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code tak

precedence, and box 1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the

citizenship of the different parties must be checked . (See Section III below; NOTE: federal question actions take precedence over diversitycases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark

section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below

sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more th

one nature of suit, select the most definitive.

V. Origin. Place an "X" in one of the six boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.

When the petition for removal is granted, check this box.Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the fil

date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers o

multidistrict litigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 140

When this box is checked, do not check (5) above.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictionstatutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket

numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.




AO 120 (Rev. 08/10)

TO:Mail Stop 8

Director of the U.S. Patent and Trademark Office

P.O. Box 1450

Alexandria, VA 22313-1450

REPORT ON THE

FILING OR DETERMINATION OF AN

ACTION REGARDING A PATENT OR

TRADEMARK

In Compliance with 35 U.S.C. § 290 and/or 15 U.S.C. § 1116 you are hereby advised that a court action has been

filed in the U.S. District Court on the following

G Trademarks or G Patents. ( G the patent action involves 35 U.S.C. § 292.):

DOCKET NO. DATE FILED U.S. DISTRICT COURT

PLAINTIFF DEFENDANT

PATENT OR

TRADEMARK NO.

DATE OF PATENT

OR TRADEMARK HOLDER OF PATENT OR TRADEMARK

1

2

3

4

5

In the above—entitled case, the following patent(s)/ trademark(s) have been included:

DATE INCLUDED INCLUDED BY

G Amendment G Answer G Cross Bill G Other Pleading

PATENT OR

TRADEMARK NO.

DATE OF PATENT

OR TRADEMARK HOLDER OF PATENT OR TRADEMARK

1

2

3

4

5

In the above—entitled case, the following decision has been rendered or judgement issued:

DECISION/JUDGEMENT

CLERK (BY) DEPUTY CLERK DATE

Copy 1—Upon initiation of action, mail this copy to Director Copy 3—Upon termination of action, mail this copy to Director

Copy 2—Upon filing document adding patent(s), mail this copy to Director Copy 4—Case file copy

for the Western District of Washington

6/30/2016 for the Western District of Washington

Ozwest, Inc. Ja-Ru, Inc.

D698,872 5/19/2013 KMA Concepts Limited

8,348,789 1/8/2013 KMA Concepts Limited




AO 440 (Rev. 06/12) Summons in a Civil Action

U NITED STATES DISTRICT COURTfor the

__________ District of __________

)

)))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk

Western District of Washington

OZWEST, INC.

2:16-cv-1019

JA-RU, INC.

JA-RU, Inc.4030 PHILLIPS HIGHWAYJACKSONVILLE, FL 32207

Warren RheaumeLauren Rainwater Davis Wright Tremaine1201 Third Ave, Suite 2200Seattle, WA 98101




AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

I personally served the summons on the individual at (place)

on (date) ; or

I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual’s last known address; or

I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

I returned the summons unexecuted because ; or

Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

2:16-cv-1019

0.00


Ozwest v. Ja-Ru - Complaint

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