Case 1:12-cv-00574-LPS Document 84 Filed 10/09/14 Page 1 of 95 PageID #: 1750
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. Nos. 12-574-LPS, 14-142-LPS
`
`JURY TRIAL DEMANDED
`
`))))))))))))
`
`ROBERT BOSCH LLC,
`
`Plaintiff,
`
`v.
`
`ALBEREE PRODUCTS, INC.,
`API KOREA CO., LTD.,
`SAVER AUTOMOTIVE PRODUCTS, INC.,
`and COSTCO WHOLESALE CORPORATION,
`
`Defendants.
`
`CONSOLIDATED AMENDED COMPLAINT
`
`Plaintiff Robert Bosch LLC (“Plaintiff”), through its attorneys, for its consolidated
`
`amended complaint against defendants Alberee Products, Inc. (“Alberee”), API Korea Co., Ltd.
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`(“API”), and Saver Automotive Products, Inc. (“Saver”), and for its initial complaint against
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`Costco Wholesale Corporation (“Costco Wholesale”) (collectively, “Defendants”), avers as
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`follows:
`
`1.
`
`This complaint is filed in a consolidated civil action that includes C.A. Nos. 12-
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`574-LPS and 14-142-LPS.
`
`2.
`
`This action arises under the patent laws of the United States, Title 35 of the
`
`United States Code (for example, §§ 271, 281, 283, 284 and 285) as hereinafter more fully set
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`forth. This Court has jurisdiction over the subject matter of the action pursuant to 28 U.S.C. §§
`
`1331 and 1338(a).
`
`DEFENDANTS AND ACCUSED PRODUCTS
`
`3.
`
`Alberee is a corporation organized under the laws of the state of Maryland with a
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`place of business at 4665 Hollins Ferry Road, Halethorpe, Maryland.
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`4.
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`API is a corporation organized under the laws of Korea with a place of business at
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`435-3, Nonhyeon-Dong, NamDong-Gu, Incheon, Korea, 405-848.
`
`5.
`
`Saver is a corporation organized under the laws of the state of Maryland with a
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`place of business at 4665 Hollins Ferry Road, Halethorpe, Maryland.
`
`6.
`
`Costco Wholesale is a corporation organized under the laws of the state of
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`Washington with a principal place of business at 999 Lake Drive, Issaquah, WA 98027.
`
`7.
`
`8.
`
`Alberee and Saver have held themselves out as related companies.
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`The facility at 4665 Hollins Ferry Road, Halethorpe, Maryland, where Saver has a
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`place of business, is owned by a company named Alberee Real Estate LLC.
`
`9.
`
`10.
`
`11.
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`The owner of Alberee is associated with Saver.
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`Alberee and Saver supply large quantities of wiper blades in the United States.
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`On information and belief, Alberee assembles, makes, offers for sale, and sells in
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`the United States automobile windshield wiper blades using components supplied by API.
`
`12.
`
`On information and belief, Saver assembles, makes, offers for sale, and sells in
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`the United States automobile windshield wiper blades assembled by Alberee and Saver using
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`components supplied by API. Such windshield wiper blades are sold under brand names
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`including the Goodyear Assurance, the Saver Arc Flex Ultra, and the Touring Ultra (the
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`“Accused Products”). There are no material differences between the various Accused Products
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`sold in the United States.
`
`13.
`
`On information and belief, Saver has offered for sale and sold, and offers for sale
`
`and sells, to retail stores in the United States the Accused Products, which retail stores sell the
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`Accused Products to end user customers for use on vehicles.
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`14.
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`The Accused Products have been, and are, offered for sale in the United States on
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`the internet, including on the Amazon.com website.
`
`15.
`
`The Goodyear Assurance wiper blades have been sold and/or are still being sold
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`at a Costco Wholesale store located at 900 Center Boulevard, Newark, Delaware, and at the
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`Costco Wholesale stores throughout the United States.
`
`16.
`
`Saver has been and is the exclusive seller of the Goodyear Assurance wiper blade
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`product to the Costco Wholesale retail chain in the United States.
`
`17.
`
`On information and belief, at least the Goodyear Assurance wiper blades have
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`arrived in the state of Delaware through Saver’s purposeful shipment of the products through an
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`established distribution channel, at least through Saver’s sale of the products to Costco
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`Wholesale, a retailer with hundreds of locations nationwide.
`
`18.
`
`On information and belief, Alberee, as a company working jointly with Saver on
`
`the distribution of the Accused Products, is aware of and encourages Saver’s shipment of the
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`Accused Products nationwide through an established distribution channel.
`
`19.
`
`On information and belief, API, as a company that worked jointly with Alberee
`
`on the design and development of the Accused Products, has knowledge and intends that Alberee
`
`and Saver sell throughout the United States the Accused Products containing components
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`supplied by API.
`
`20.
`
`U.S. Patent No. 8,037,568 (“the ’568 patent”) for a “Windshield Wiper
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`Assembly” names the owner of Alberee and the owner of API as co-inventors, and is assigned on
`
`its face to Alberee. The ’568 patent on its face claims priority to a Korean patent application, for
`
`which records from the Korean patent office identify API as the applicant.
`
`21.
`
`API manufactures a large number of wiper blades supplied to the United States.
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`Case 1:12-cv-00574-LPS Document 84 Filed 10/09/14 Page 4 of 95 PageID #: 1753
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`COUNT ONE – INFRINGEMENT OF U.S. PATENT NO. 6,523,218
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`22.
`
`The allegations stated in paragraphs 2 through 21 of this Amended Complaint are
`
`incorporated by reference as if set forth herein.
`
`23.
`
`On February 25, 2003, United States Patent No. 6,523,218 (“the ’218 patent,”
`
`attached as Exhibit A) was duly and legally issued for an invention in a windshield wiper blade.
`
`Plaintiff is the owner of the ’218 patent.
`
`24.
`
`Alberee has infringed and is still infringing the ’218 patent directly under 35
`
`U.S.C. § 271(a) by making, selling, and offering for sale in the United States the Accused
`
`Products, and will continue to do so unless enjoined by this Court.
`
`25.
`
`Saver has infringed and is still infringing the ’218 patent directly under 35 U.S.C.
`
`§ 271(a) by making, selling, and offering for sale in the United States the Accused Products, and
`
`will continue to do so unless enjoined by this Court.
`
`26.
`
`Retail stores, including Costco Wholesale, have infringed and/or are still
`
`infringing the ’218 patent directly under 35 U.S.C. § 271(a) by selling and offering for sale in the
`
`United States the Accused Products.
`
`27.
`
`End users have infringed and are still infringing the ’218 patent directly under 35
`
`U.S.C. § 271(a) by using in the United States the Accused Products, including as windshield
`
`wiper blades on vehicles.
`
`28.
`
`On information and belief, API manufactures and imports into the United States
`
`components of the Accused Products, including spring elastic support elements.
`
`29.
`
`The components manufactured and imported by API are material components of
`
`the invention of the ’218 patent, at least because, on information and belief, the spring elastic
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`support elements provided by API constitute a significant part of the final assembly of each
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`Accused Product.
`
`30.
`
`The components manufactured and imported by API are not staple articles or
`
`commodities of commerce and have no substantial non-infringing uses, at least because, on
`
`information and belief, the spring elastic support elements are designed specifically for use in the
`
`Accused Products and have no other intended uses.
`
`31.
`
`API has had knowledge that the Accused Products, for which the components API
`
`manufactures and imports are especially made or adapted, infringe the ’218 patent since at least
`
`October 11, 2011, from a letter sent from Plaintiff’s counsel to API. API has had knowledge as
`
`to how the Accused Products infringe the ’218 patent since at least on or about November 22,
`
`2011, when the U.S. International Trade Commission (“the ITC”) served API with Plaintiff’s
`
`complaint (“the ITC Complaint”) in In the Matter of Certain Wiper Blades, 337-TA-816 (“the
`
`ITC Investigation”), which included a claim chart demonstrating how the Goodyear Assurance
`
`blade infringes the ’218 patent. API has had additional knowledge as to how the Accused
`
`Products infringe the ’218 patent since at least April 26, 2012, when Plaintiff served on API’s
`
`counsel infringement contentions in the ITC Investigation including a claim chart demonstrating
`
`how the Goodyear Assurance and the Arc Flex Ultra wiper blades infringe the ’218 patent. API
`
`has had additional knowledge as to how the Accused Products infringe the ’218 patent since at
`
`least January 15, 2013, when API’s counsel received from Plaintiff’s counsel a letter describing
`
`such infringement.
`
`32.
`
`API therefore is a contributory infringer of the ’218 patent under 35 U.S.C. §
`
`271(c) with respect to Alberee’s direct infringement and Saver’s direct infringement of the ’218
`
`patent, and will continue to infringe unless enjoined by this Court. API also is a contributory
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`infringer of the ’218 patent under 35 U.S.C. § 271(c) with respect to the direct infringement of
`
`the ’218 patent by retailers who sell and offer for sale the Accused Products and the direct
`
`infringement of the ’218 patent by end users who use the Accused Products, and will continue to
`
`infringe unless enjoined by this Court.
`
`33.
`
`On information and belief, API has purposefully caused, encouraged, and urged
`
`Alberee and Saver to make, sell, and offer for sale the Accused Products in the United States
`
`with the knowledge and intent that such activities would directly infringe the ’218 patent, and
`
`intended Alberee and Saver to carry out such activities. API has had such knowledge and intent
`
`at least since receiving, on or about November 22, 2011, the infringement claim chart included in
`
`the ITC Complaint, receiving, on April 26, 2012, the infringement claim chart included with
`
`Plaintiff’s infringement contentions in the ITC Investigation, and receiving through its counsel,
`
`on January 15, 2013, a letter from Plaintiff’s counsel describing its infringement.
`
`34.
`
`API therefore induces under 35 U.S.C. § 271(b) Alberee’s direct infringement and
`
`Saver’s direct infringement of the ’218 patent, and will continue to do so unless enjoined by this
`
`Court.
`
`35.
`
`On information and belief, API has purposefully caused, encouraged, and urged
`
`retailers to offer for sale and sell, and end users to use, the Accused Products in the United States
`
`with the knowledge and intent that such activities would directly infringe the ’218 patent, and
`
`intended retailers and end users to carry out such activities. API has had such knowledge and
`
`intent at least since receiving, on or about November 22, 2011, the infringement claim chart
`
`included in the ITC Complaint, receiving, on April 26, 2012, the infringement claim chart
`
`included with Plaintiff’s infringement contentions in the ITC Investigation, and receiving, on
`
`January 15, 2013, a letter from Plaintiff’s counsel providing notice of API’s infringement. API
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`has such intent because, on information and belief, it intends Alberee and Saver to sell the
`
`Accused Products made with components supplied by API directly or indirectly to retailers, it
`
`intends that retailers sell in the United States the Accused Products to end users, and it intends
`
`that end users in the United Sates use the Accused Products as wiper blades on vehicles.
`
`36.
`
`API therefore induces under 35 U.S.C. § 271(b) the direct infringement of
`
`retailers of the ’218 patent and the direct infringement of end users of the ’218 patent, and will
`
`continue to do so unless enjoined by this Court.
`
`37.
`
`Alberee and Saver each has had knowledge that the Accused Products infringe the
`
`’218 patent since at least January 26, 2011 from a letter sent from Plaintiff’s counsel to
`
`Alberee/Saver’s counsel. Alberee and Saver each has had knowledge as to how the Accused
`
`Products infringe the ’218 patent since at least February 16, 2011, from correspondence sent
`
`from Plaintiff’s counsel to Alberee/Saver’s counsel which included a claim chart showing how
`
`the Goodyear Assurance blade infringes the ’218 patent. Alberee and Saver each has had
`
`additional knowledge of how the Accused Products infringe the ’218 patent since at least on or
`
`about November 22, 2011, when the ITC served Alberee/Saver with the ITC Complaint, which
`
`included a claim chart demonstrating how the Goodyear Assurance blade infringes the ’218
`
`patent. Alberee and Saver each has had additional knowledge as to how the Accused Products
`
`infringe the ’218 patent since at least April 26, 2012, when Plaintiff’s counsel served on
`
`Alberee/Saver’s counsel infringement contentions in the ITC Investigation including a claim
`
`chart demonstrating how the Goodyear Assurance and the Arc Flex Ultra wiper blades infringe
`
`the ’218 patent. Alberee and Saver each has had additional knowledge as to how the Accused
`
`Products infringe the ’218 patent since at least January 15, 2013, when Alberee’s and Saver’s
`
`counsel received from Plaintiff’s counsel a letter describing such infringement.
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`38.
`
`Costco Wholesale has had knowledge that the Goodyear Assurance Products
`
`infringe the ’218 patent since at least May 30, 2012, when Bosch notified Costco Wholesale of
`
`such infringement.
`
`39.
`
`On information and belief, Alberee has purposefully caused, encouraged, and
`
`urged Saver to sell and offer for sale the Accused Products in the United States with the
`
`knowledge and intent that such activities would directly infringe the ’218 patent, and intended
`
`Saver to carry out such activities. Alberee has had such knowledge and intent at least since
`
`receiving the infringement allegations stated in the infringement claim chart sent from Plaintiff’s
`
`counsel to Alberee/Saver’s counsel on February 16, 2011, receiving the infringement claim chart
`
`included in the ITC Complaint on or about November 22, 2011, receiving the infringement claim
`
`chart included with Plaintiff’s infringement contentions in the ITC Investigation on April 26,
`
`2012, and receiving through its counsel a letter from Plaintiff’s counsel describing Alberee’s
`
`infringement on January 15, 2013. Alberee further has such knowledge and intent because, on
`
`information and belief, Alberee and Saver work together in distributing the Accused Products
`
`and because Alberee intends that the Accused Products it sells to Saver are offered for sale and
`
`sold to third parties.
`
`40.
`
`Alberee therefore induces under 35 U.S.C. § 271(b) Saver’s direct infringement of
`
`the ’218 patent, and will continue to do so unless enjoined by this Court.
`
`41.
`
`On information and belief, Alberee and Saver each has knowledge that retailers
`
`directly infringe the ’218 patent by selling and offering for sale in the United States the Accused
`
`Products, and that end users directly infringe the ’218 patent by using in the United States the
`
`Accused Products as wiper blades for their vehicles, at least since receiving the infringement
`
`allegations stated in the infringement claim chart sent from Plaintiff’s counsel to Alberee/Saver’s
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`counsel on February 16, 2011, receiving the infringement claim chart included in the ITC
`
`Complaint on or about November 22, 2011, receiving the infringement claim chart included with
`
`Plaintiff’s infringement contentions in the ITC Investigation on April 26, 2012, and receiving
`
`through their counsel a letter sent by Plaintiff’s counsel describing Alberee’s and Saver’s
`
`infringement on January 15, 2013.
`
`42.
`
`On information and belief, Costco Wholesale has knowledge that end users
`
`directly infringe the ’218 patent by using in the United States the Goodyear Assurance Products
`
`as wiper blades for their vehicles, at least since receiving the notice of infringement from Bosch
`
`on May 30, 2012.
`
`43.
`
`On information and belief, by advertising the infringing use in their promotional
`
`materials, by providing an application guide on their website and in stores that sell the Accused
`
`Products showing the infringing use, and by including installation instructions with the Accused
`
`Products that show the end users of the Accused Products how to install the same on the wiper
`
`arms on their vehicles, Alberee and Saver each has purposefully caused, encouraged, and urged
`
`end users to use the Accused Products, with the knowledge and intent that such activities would
`
`directly infringe the ’218 patent, and intend end users to carry out such activities. Alberee and
`
`Saver each know or should know that end users use in the United States the Accused Products
`
`because Alberee and Saver distribute the products to retailers for resale to end users for this
`
`purpose.
`
`44.
`
`On information and belief, by advertising the infringing use in their promotional
`
`materials, and by providing application guides in their stores that sell the Goodyear Assurance
`
`Products showing the infringing use, Costco Wholesale has purposefully caused, encouraged,
`
`and urged end users to use the Goodyear Assurance Products, with the knowledge and intent that
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`such activities would directly infringe the ’218 patent, and intend end users to carry out such
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`activities. Costco Wholesale knows or should know that end users use the Goodyear Assurance
`
`Products in the United States as wiper blades on vehicles because it sells these products to end
`
`users for this purpose.
`
`45.
`
`Alberee, Saver, and Costco Wholesale therefore each induce under 35 U.S.C. §
`
`271(b) the direct infringement of the ’218 patent by end users of the Accused Products including
`
`Goodyear Assurance products, and will continue to do so unless enjoined by this Court.
`
`46.
`
`On information and belief, Alberee and Saver each has purposefully caused,
`
`encouraged, and urged retailers to offer for sale and sell the Accused Products, with the
`
`knowledge and intent that such activities would directly infringe the ’218 patent, and intend
`
`retailers to carry out such activities. Alberee and Saver know or should know that retailers offer
`
`for sale and sell in the United States the Accused Products because Alberee and Saver distribute
`
`the products to retailers for resale to end users.
`
`47.
`
`Alberee and Saver therefore each induce under 35 U.S.C. § 271(b) retailers’ direct
`
`infringement of the ’218 patent, and will continue to do so unless enjoined by this Court.
`
`48.
`
`Plaintiff has no adequate remedy at law against Defendants’ infringement of the
`
`’218 patent and, unless Defendants are enjoined from their infringement, Plaintiff will suffer
`
`irreparable harm.
`
`49.
`
`Defendants have had knowledge of the ’218 patent and yet have continued to
`
`infringe despite an objectively high likelihood that their actions constituted infringement of the
`
`’218 patent. The risk of infringement was either known to Defendants, or so obvious it should
`
`have been known to them. Therefore, Defendants’ infringement has been and continues to be
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`willful and deliberate.
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`50.
`
`As a result of Defendants’ infringement, Plaintiff has suffered and will continue
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`to suffer damages in an amount to be proven at trial.
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`COUNT TWO – INFRINGEMENT OF U.S. PATENT NO. 6,530,111
`
`51.
`
`The allegations stated in paragraphs 2 through 21 of this Amended Complaint are
`
`incorporated by reference as if set forth herein.
`
`52.
`
`On March 11, 2003, United States Patent No. 6,530,111 (“the ’111 patent,”
`
`attached as Exhibit B) was duly and legally issued for an invention in a windshield wiper
`
`apparatus. Plaintiff is the owner of the ’111 patent.
`
`53.
`
`End users have purchased or otherwise obtained the Accused Products and, in the
`
`United States, combined the Accused Products with “top lock” (or “pinch tab”) wiper arms. By
`
`doing so, the end users have infringed and are still infringing the ’111 patent directly under 35
`
`U.S.C. § 271(a) by using the invention claimed therein.
`
`54.
`
`Alberee makes, offers for sale, and sells in the United States the Accused
`
`Products.
`
`55.
`
`56.
`
`Saver makes, offers for sale, and sells in the United States the Accused Products.
`
`Retail stores, including Costco Wholesale, sell and offer for sale to end users in
`
`the United States the Accused Products. On information and belief, Saver, with Alberee’s
`
`knowledge and encouragement, ships the Accused Products, directly or indirectly, to retailers
`
`through an established distribution channel.
`
`57.
`
`The Accused Products include adapters that are intended, designed, made, and
`
`configured to be used only with a “top lock” wiper arm.
`
`58.
`
`The Accused Products with the “top lock” adapters sold by Alberee, Saver, and
`
`retail stores, including Costco Wholesale, are not staple articles or commodities of commerce
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`and have no substantial non-infringing uses, at least because, on information and belief, the
`
`Accused Products with the “top lock” adapters are designed specifically for use with a “top lock”
`
`wiper arm and have no other intended use.
`
`59.
`
`Alberee and Saver each has had knowledge that combining the Accused Products
`
`with a “top lock” wiper arm, for which the Accused Products with the “top lock” adapters
`
`Alberee and Saver make, offer for sale, and sell are especially made or adapted, infringe the ’111
`
`patent since at least January 26, 2011 from a letter sent from Plaintiff’s counsel to
`
`Alberee/Saver’s counsel. Alberee and Saver each has had knowledge as to how the Accused
`
`Products combined with a “top lock” wiper arm infringe the ’111 patent since at least February
`
`16, 2011, from correspondence sent from Plaintiff’s counsel to Alberee/Saver’s counsel which
`
`included a claim chart showing how the Goodyear Assurance blade infringes the ’111 patent.
`
`Alberee and Saver each has had additional knowledge as to how the Accused Products combined
`
`with a “top lock” wiper arm infringe the ’111 patent since at least January 15, 2013, when
`
`Alberee’s and Saver’s counsel received a letter sent by Plaintiff’s counsel describing such
`
`infringement.
`
`60.
`
`Costco Wholesale has had knowledge that combining the Goodyear Assurance
`
`Products with a “top lock” wiper arm, for which the Goodyear Assurance Products with the “top
`
`lock” adapters that Costco Wholesale offers for sale and sells are especially made or adapted,
`
`infringes the ’111 patent since at least May 30, 2012, when Bosch notified Costco Wholesale of
`
`such infringement.
`
`61.
`
`On information and belief, by advertising the infringing use in their promotional
`
`materials, by providing an application guide on their website and in stores that sell the Accused
`
`Products showing that the products can be used with vehicles equipped with “top lock” wiper
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`arms, and by including installation instructions with the Accused Products that show the end
`
`users of the Accused Products how to install the same on a “top lock” wiper arm, Alberee and
`
`Saver have purposefully caused, encouraged, and urged end users to combine the Accused
`
`Products with “top lock” wiper arms, with the knowledge and intent that such activities would
`
`infringe the ’111 patent, and intend users to carry out such activities. Alberee and Saver know or
`
`should know that end users use in the United States the Accused Products with “top lock” wiper
`
`arms because Alberee and Saver distribute the products to retailers for resale to end users to be
`
`used for this purpose.
`
`62.
`
`On information and belief, by advertising the infringing use in their promotional
`
`materials, and by providing application guides in their stores that sell the Goodyear Assurance
`
`Products showing how these products can be used with vehicles equipped with “top lock” wiper
`
`arms, Costco Wholesale has purposefully caused, encouraged, and urged end users to combine
`
`the Goodyear Assurance Products with “top lock” wiper arms, with the knowledge and intent
`
`that such activities would directly infringe the ’111 patent, and intend users to carry out such
`
`activities. Costco Wholesale knows or should know that end users use the Goodyear Assurance
`
`Products with “top lock” wiper arms in the United States because it sells these products to end
`
`users for this purpose.
`
`63.
`
`Alberee, Saver, and Costco Wholesale therefore each induce under 35 U.S.C. §
`
`271(b) direct infringement of the ’111 patent by end users of the Accused Products including
`
`Goodyear Assurance products, and will continue to infringe unless enjoined by this Court.
`
`Alberee, Saver, and Costco Wholesale also therefore each is a contributory infringer of the ’111
`
`patent under 35 U.S.C. § 271(c) with respect to direct infringement of the ’111 patent by end
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`Case 1:12-cv-00574-LPS Document 84 Filed 10/09/14 Page 14 of 95 PageID #: 1763
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`users of the Accused Products including Goodyear Assurance products, and will continue to
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`infringe unless enjoined by this Court.
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`64.
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`Plaintiff has no adequate remedy at law against Alberee’s, Saver’s, and Costco
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`Wholesale’s infringement of the ’111 patent and, unless they are enjoined from their
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`infringement of the ’111 patent, Plaintiff will suffer irreparable harm.
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`65.
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`Alberee, Saver, and Costco Wholesale have had knowledge of the ’111 patent and
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`yet have continued to infringe despite an objectively high likelihood that their actions constituted
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`infringement of the ’111 patent. The risk of infringement was either known to Alberee, Saver,
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`and Costco Wholesale, or so obvious it should have been known to them. Therefore, Alberee’s,
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`Saver’s, and Costco Wholesale’s infringement has been and continues to be willful and
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`deliberate.
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`66.
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`As a result of Alberee’s, Saver’s, and Costco Wholesale’s infringement, Plaintiff
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`has suffered and will continue to suffer damages in an amount to be proven at trial.
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`COUNT THREE – INFRINGEMENT OF U.S. PATENT NO. 6,553,607
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`67.
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`The allegations stated in paragraphs 2 through 21 of this Amended Complaint are
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`incorporated by reference as if set forth herein.
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`68.
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`On April 29, 2003, United States Patent No. 6,553,607 (“the ’607 patent,”
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`attached as Exhibit C) was duly and legally issued for an invention in a windshield wiper blade.
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`Plaintiff is the owner of the ’607 patent.
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`69.
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`End users have purchased or otherwise obtained the Accused Products and, in the
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`United States, combined the Accused Products with “side lock” (or “side pin”) wiper arms. By
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`doing so, the end users have infringed and are still infringing the ’607 patent directly under 35
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`U.S.C. § 271(a) by using the invention claimed therein.
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`Case 1:12-cv-00574-LPS Document 84 Filed 10/09/14 Page 15 of 95 PageID #: 1764
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`70.
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`Alberee makes, offers for sale, and sells in the United States the Accused
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`Products.
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`71.
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`72.
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`Saver makes, offers for sale, and sells in the United States the Accused Products.
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`Retail stores, including Costco Wholesale, sell and offer for sale to end users in
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`the United States the Accused Products. On information and belief, Saver, with Alberee’s
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`knowledge and encouragement, ships the Accused Products, directly or indirectly, to retailers
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`through an established distribution channel.
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`73.
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`The Accused Products include adapters that are intended, designed, made, and
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`configured to be used only with a “side lock” wiper arm.
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`74.
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`The Accused Products with the “side lock” adapters sold by Alberee, Saver, and
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`retail stores, including Costco Wholesale, are not staple articles or commodities of commerce
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`and have no substantial non-infringing uses, at least because, on information and belief, the
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`Accused Products with the “side lock” adapters are designed specifically for use with a “side
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`lock” wiper arm and have no other intended use.
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`75.
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`Alberee and Saver each has had knowledge that combining the Accused Products
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`with a “side lock” wiper arm, for which the Accused Products with the “side lock” adapters
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`Alberee and Saver make, offer for sale, and sell are especially made or adapted, infringe the ’607
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`patent since at least January 26, 2011 from a letter sent from Plaintiff’s counsel to
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`Alberee/Saver’s counsel. Alberee and Saver each has had knowledge as to how the Accused
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`Products combined with a “side lock” wiper arm infringe the ’607 patent since at least February
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`16, 2011, from correspondence sent from Plaintiff’s counsel to Alberee/Saver’s counsel which
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`included a claim chart showing how the Goodyear Assurance blade infringes the ’607 patent.
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`Alberee and Saver each has had additional knowledge of how the Accused Products combined
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`Case 1:12-cv-00574-LPS Document 84 Filed 10/09/14 Page 16 of 95 PageID #: 1765
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`with a “side lock” wiper arm infringe the ’607 patent since at least on or about November 22,
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`2011, when the ITC served Alberee/Saver with the ITC Complaint, which included a claim chart
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`demonstrating how the Goodyear Assurance blade infringes the ’607 patent. Alberee and Saver
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`each has had additional knowledge as to how the Accused Products combined with a “side lock”
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`wiper arm infringe the ’607 patent since at least April 26, 2012, when Plaintiff’s counsel served
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`on Alberee/Saver’s counsel infringement contentions in the ITC Investigation including a claim
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`chart demonstrating how the Goodyear Assurance and the Arc Flex Ultra wiper blades infringe
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`the ’607 patent. Alberee and Saver each has had additional knowledge as to how the Accused
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`Products combined with a “side lock” wiper arm infringe the ’607 patent since at least January
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`15, 2013, when Alberee’s and Saver’s counsel received a letter sent by Plaintiff’s counsel
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`describing such infringement.
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`76.
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`Costco Wholesale has had knowledge that combining the Goodyear Assurance
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`Products with a “side lock” wiper arm, for which the Goodyear Assurance Products with the
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`“side lock” adapters that Costco Wholesale offers for sale and sells are especially made or
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`adapted, infringes the ’607 patent since at least May 30, 2012, when Bosch notified Costco
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`Wholesale of such infringement.
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`77.
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`On information and belief, by advertising the infringing use in their promotional
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`materials, by providing an application guide on their website and in stores that sell the Accused
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`Products showing that the products can be used with vehicles equipped with “side lock” wiper
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`arms, and by including installation instructions with the Accused Products that show the end
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`users of the Accused Products how to install the same on a “side lock” wiper arm, Alberee and
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`Saver have purposefully caused, encouraged, and urged end users to combine the Accused
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`Products with “side lock” wiper arms, with the knowledge and intent that such activities would
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`Case 1:12-cv-00574-LPS Document 84 Filed 10/09/14 Page 17 of 95 PageID #: 1766
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`infringe the ’607 patent, and intend users to carry out such activities. Alberee and Saver know or
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`should know that end users use in the United States the Accused Products with “side lock” wiper
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`arms because Alberee and Saver distribute the products to retailers for resale to end users to be
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`used for this purpose.
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`78.
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`On information and belief, by advertising the infringing use in their promotional
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`materials, and by providing application guides in their stores that sell the Goodyear Assurance
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`Products showing how these products can be used with vehicles equipped with “side lock” wiper
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`arms, Costco Wholesale has purposefully caused, encouraged, and urged end users to combine
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`the Goodyear Assurance Products with “side lock” wiper arms, with the knowledge and intent
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`that such activities would directly infringe the ’607 patent, and intend users to carry out such
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`activities. Costco Wholesale knows or should know that end users use the Goodyear Assurance
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`Products with “side lock” wiper arms in the United States because it sells these products to end
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`users for this purpose.
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`79.
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`Alberee, Saver, and Costco Wholesale therefore each induce under 35 U.S.C. §
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`271(b) direct infringement of the ’607 patent by end users of the Accused Products including
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`Goodyear Assurance products, and will continue to infringe unless enjoined by this Court.
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`Alberee, Saver, and Costco Wholesale also therefore each is a contributory infringer of the ’607
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`pa