Case 1:19-cv-01028-CFC-SRF Document 1 Filed 06/03/19 Page 1 of 13 PageID #: 1
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`F’REAL FOODS, LLC,
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`WELBILT, INC.,
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`v.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff,
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`Defendant.
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`C.A. No. ______________
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`DEMAND FOR JURY TRIAL
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`Plaintiff f’real Foods LLC (“f’real”) hereby asserts claims against Defendant Welbilt,
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`Inc. (“Welbilt”) for infringement of U.S. Patent Nos. 7,144,150 and 7,520,662 and alleges as
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`follows:
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`NATURE OF THE ACTION
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`1.
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`This is an action for patent infringement arising under the Patent Laws of the
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`United States, 35 U.S.C. § 1 et seq.
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`THE PARTIES
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`2.
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`f’real is a California limited liability company with its principal place of
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`business at 6121 Hollis Street, Suite 500, Emeryville, California 94608. f’real regularly does
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`business in this judicial district through its retail customers and is registered as a foreign corporation
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`with the State of Delaware.
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`3.
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`Welbilt is a Delaware corporation with its principal place of business at 2227
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`Welbilt Blvd., New Port Richey, Florida 34655.
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`JURISDICTION AND VENUE
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`4.
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`This is an action for patent infringement arising under the Patent Laws of the
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`United States, Title 35 of the United States Code.
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`5.
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`This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and
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`6.
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`Venue is proper in this judicial district as to Welbilt under 28 U.S.C. §
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`1338(a).
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`1400(b).
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`7.
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`Welbilt is subject to this Court’s general and specific personal jurisdiction
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`because it is incorporated in Delaware and has purposely availed itself of the privileges and benefits
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`of the laws of the State of Delaware. Further, upon information and belief, Welbilt has sufficient
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`minimum contacts within the State of Delaware because Welbilt purposefully availed itself of the
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`privileges of conducting business in the State of Delaware.
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`BACKGROUND
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`8.
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`f’real produces frozen milkshakes, smoothies and cappuccino beverage
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`products that are sold at over 19,000 locations across the United States and Canada, including
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`convenience stores, colleges, universities, theaters and military bases. To enjoy a f’real product, the
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`customer chooses a desired frozen milkshake, smoothie or cappuccino from a merchandizing freezer
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`at the retail location and inserts it into a patented blender sold to the retailer by f’real. The blender
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`then mixes the frozen product to a desired consistency and makes it available for the enjoyment of
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`the customer.
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`9.
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`f’real’s founder, Mr. Jim Farrell, began f’real’s business in the garage of his
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`California home. Mr. Farrell’s objective was to build a business that would allow customers to
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`prepare their own high quality frozen drinks at convenience stores and fast food restaurants.
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`10.
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`In building the f’real business, Mr. Farrell faced numerous challenges. A first
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`challenge was providing the customer with a choice of quality frozen drinks that could be quickly
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`prepared without extensive training or involvement by the busy retailer. A second challenge was to
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`keep the blender sanitary after frozen drinks were prepared, again without extensive training or
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`involvement by the busy retailer.
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`11. Mr. Farrell addressed the first challenge by pre-preparing frozen drinks in
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`various flavors using quality ingredients, freezing them into single-serving cups and then sealing the
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`cups for delivery to the retailer. To achieve a preferred old-fashioned texture for f’real’s frozen
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`drinks, Mr. Farrell developed a novel blender. In testing prototype blenders, Mr. Farrell found that
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`simply cutting through the frozen drink with a blender blade did not produce the old-fashioned
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`milkshake texture he wanted. After hard work and experimentation, Mr. Farrell discovered that
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`adding liquid, such as milk or water, to the frozen drink and aerating the frozen drink during the
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`blending process produced the desired old-fashioned texture. On September 8, 1998, f’real was duly
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`and legally issued U.S. Patent No. 5,803,377 for its first generation blender, titled “Apparatus And
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`Method For Making Frozen Drinks,” naming Mr. Farrell as the inventor.
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`12.
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`Unless the blender is cleaned in a timely manner, flavors from one frozen
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`drink will contaminate subsequent frozen drinks and bacteria can grow on food particles left in the
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`blending chamber. To address this need for cleanliness, Mr. Farrell conceived of a second
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`generation of f’real blender that both minimized the amount of food particles released in the food
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`preparation chamber during preparation of the frozen drink and then automatically rinsed the food
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`preparation chamber after the frozen drink was prepared. Mr. Farrell’s concept minimized the
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`release of food particles by having f’real’s blender automatically use a splash shield to cover most of
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`the top of the frozen drink cup while the frozen drink was being blended. When the blending was
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`complete and the frozen drink was removed from the blending chamber, the blender automatically
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`cleaned the blending chamber by spraying rinsing fluid through pre-positioned nozzles, at least some
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`of which were pointed at the splash shield, to rinse off the splash shield.
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`13.
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`The second generation f’real blender was an immediate success. Within the
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`first year of the f’real self-rinsing blender hitting the market, f’real’s cup sales increased over 4000%
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`(to 1.4 million cups sold) and have continued rising ever since. Today, f’real annual sales top $100
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`million.
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`14.
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`On November 15, 2002, Mr. Farrell filed U.S. Provisional Patent Application
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`No. 60/426,622 for his automatic self-rinsing blender and self-rinsing process. This U.S. Provisional
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`Patent Application led to three issued U.S. Patents for f’real’s self-cleaning blender.
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`15.
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`On December 5, 2006, the U.S. Patent and Trademark Office duly and legally
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`issued U.S. Patent No. 7,144,150 (“’150 patent”), titled “Rinseable Splash Shield And Method Of
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`Use,” naming Mr. Farrell as the inventor. f’real owns the ’150 patent and has the right to sue for
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`infringement. A copy of the ’150 patent is attached to this Complaint as Exhibit 1.
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`16.
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`On April 21, 2009, the U.S. Patent and Trademark Office duly and legally
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`issued U.S. Patent No. 7,520,662 (“’662 patent”), titled “Rinseable Splash Shield And Method Of
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`Use,” again naming Mr. Farrell as the inventor. f’real owns the ’662 patent and has the right to sue
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`for infringement. A copy of the ’662 patent is attached to this Complaint as Exhibit 2.
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`DEFENDANTS’ INFRINGING ACTIVITIES
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`17.
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`Defendant Welbilt is a manufacturer of drink machines for fast food
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`restaurants and convenience stores. On information and belief, Welbilt has promoted the sale of
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`three blenders using f’real’s patented self-rinsing blender technology, the Multiplex FreshBlender®,
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`the Multiplex Blend In Cup® Workstation, and the MAM9904 Blend-In-Cup® – Manual Fill
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`(collectively, the “Accused Products”), at the October 2017 National Association of Convenience
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`Stores (“NACS”) trade show in Chicago, Illinois; the October 2018 NACS trade show in Las Vegas,
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`Nevada; and on its website, www.multiplexbeverage.com.
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`18.
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`The Multiplex FreshBlender prepares flavored crushed ice drinks. To use the
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`Multiplex FreshBlender, the user places a plastic cup into a recessed cup holder on the left side of
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`the machine and chooses a desired flavor. The Multiplex FreshBlender then dispenses ice and the
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`desired flavoring into the cup. After the drink ingredients are dispensed into the cup, the cup is
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`automatically moved to the mixing chamber on the right side of the machine where a splash shield is
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`placed on top of the cup and a rotatable blade is lowered to mix the ingredients. After the
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`ingredients are fully mixed, the Multiplex FreshBlender raises the splash shield and moves the mixed
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`drink back to the left side of the machine where the user can retrieve the blended drink. The mixing
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`chamber on the right side of the Multiplex FreshBlender is then automatically rinsed by rinse nozzles
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`directed at the splash shield to make sure the mixing chamber is cleaned before the next blended
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`drink is prepared.
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`Multiplex FreshBlender
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`19.
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`According to an article published by Convenience Store News, Multiplex
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`FreshBlender blenders have been installed in approximately 600 Kwik Trip convenience stores since
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`October 2018. See “Kwik Trip Gets Fresh With New Smoothie Program,” dated April 16, 2019,
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`available at https://csnews.com/kwik-trip-gets-fresh-new-smoothie-program.
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`20.
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`The Multiplex FreshBlender made by Welbilt practices the inventions
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`disclosed and claimed in f’real’s ’150 and ’662 patents.
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`21.
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`Like the blenders and methods disclosed and claimed in f’real’s ’150 patent,
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`the Multiplex FreshBlender is a mixing machine that mixes a liquid mixture in a cup using a
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`rotatable mixing element where a splash shield is used to cover the top of the cup during the mixing
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`process and rinse nozzles oriented towards the splash shield are used to clean the splash shield after
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`the mixing process is completed.
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`22.
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`For f’real’s ’662 patent, in the process of using the Multiplex FreshBlender, a
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`user places a cup into a recessed Multiplex FreshBlender holder which is then loaded with material
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`to be mixed. In its mixing chamber, the Multiplex FreshBlender has a splash shield positionable to
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`shield the opening of the cup and a rinse nozzle oriented toward the splash shield. After blending is
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`completed using a rotatable mixing element extendable into the cup, the splash shield is
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`automatically unshielded and the user is allowed to remove the blended drink. The Multiplex
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`FreshBlender rinse nozzles then spray rinsing fluid to clean off the splash shield.
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`Multiplex FreshBlender
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`23.
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` The Multiplex Blend In Cup Workstation and MAM9904 Blend-In-Cup –
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`Manual Fill blenders also prepare flavored crushed ice drinks. To use the Multiplex Blend In Cup
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`Workstation and MAM9904 Blend-In-Cup – Manual Fill blenders, the user places a plastic cup into
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`a middle position below the crushed ice and liquid flavoring dispenser. After the user chooses a
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`desired flavor, the Multiplex Blend In Cup Workstation and MAM9904 Blend-In-Cup – Manual Fill
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`blenders dispense ice and the desired flavoring into the cup. With the starting ingredients now in the
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`cup, the user moves the cup to a mixing chamber on either the left or right side of the dispensing
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`station. The user lifts the entrance door of the selected mixing chamber, inserts the cup into the
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`mixing chamber and then closes the entrance door. With the cup in the selected mixing chamber and
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`the entrance door closed, a splash shield is lowered to cover the cup opening and a rotatable mixing
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`element is used to mix the ingredients in the cup. After the drink ingredients are fully mixed, the
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`Multiplex Blend In Cup Workstation and MAM9904 Blend-In-Cup – Manual Fill blenders raise the
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`splash shield and rotatable mixing element. The user can then lift the mixing chamber entrance door
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`to remove the mixed drink. After the mixed drink is so removed, the mixing chamber becomes a
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`rinse chamber where the splash shield is automatically rinsed by rinse nozzles directed at the splash
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`shield.
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`Multiplex Blend In Cup Workstation
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`MAM9904 Blend-In-Cup
`– Manual Fill
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`24.
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`The Multiplex Blend In Cup Workstation and MAM9904 Blend-In-Cup –
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`Manual Fill blenders made by Welbilt practice the inventions disclosed and claimed in f’real’s ’150
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`and ’662 patents.
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`25.
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`Like the blenders and methods disclosed and claimed in f’real’s ’150 patent,
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`the Multiplex Blend In Cup Workstation and MAM9904 Blend-In-Cup – Manual Fill blenders are
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`mixing machines that mix a liquid mixture in a cup using a rotatable mixing element where a splash
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`shield is used to cover the top of the cup during the mixing process and rinse nozzles oriented
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`towards the splash shield are used to clean the splash shield after the mixing process is completed.
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`26.
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`For f’real’s ’662 patent, in the process of using the Multiplex Blend In Cup
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`Workstation or MAM9904 Blend-In-Cup – Manual Fill blenders, a user places a cup loaded with
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`material to be mixed into a holder. The Multiplex Blend In Cup Workstation and MAM9904 Blend-
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`In-Cup – Manual Fill blenders have a splash shield positionable to shield the opening of the cup and
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`a rinse nozzle oriented toward the splash shield. After blending is completed using a rotatable
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`mixing element extendable into the cup, the splash shield is automatically unshielded and the user is
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`allowed to remove the blended drink. The Multiplex Blend In Cup Workstation and MAM9904
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`Blend-In-Cup – Manual Fill rinse nozzles then spray rinsing fluid to clean off the splash shield.
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`COUNT I
`(Infringement of U.S. Patent No. 7,144,150)
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`27.
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`f’real realleges and incorporates by reference paragraphs 1 through 26 of this
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`Complaint.
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`28.
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`The ’150 patent is valid and enforceable.
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`29. Welbilt has directly infringed at least claims 1, 3, 7, 8, 12, 14, 15, 20 and 24 of
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`the ’150 patent by making, using, offering for sale, selling, and/or importing into the United States
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`Multiplex FreshBlender that embody or practice the patented inventions. Welbilt has also directly
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`infringed at least claims 1, 7, 8, 12, 15 and 20 of the ’150 patent by making, using, offering for sale,
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`selling, and/or importing into the United States Multiplex Blend In Cup Workstation and MAM9904
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`Blend-In-Cup – Manual Fill blenders that embody or practice the patented inventions.
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`30. Welbilt has had actual knowledge of the ’150 patent since at least August
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`2018 from correspondence between f’real and Welbilt regarding the ’150 patent.
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`31.
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`Despite knowing through communications with f’real that Welbilt’s Multiplex
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`FreshBlender, Multiplex Blend In Cup Workstation, and MAM9904 Blend-In-Cup – Manual Fill
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`blenders infringe the ’150 patent, Welbilt has induced the infringement of at least claims 1, 3, 7, 8,
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`12, 14, 15, 20 and 24 of the ’150 patent by providing operating information and/or demonstrations to
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`users and prospective users.
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`32.
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`Despite knowing through communications with f’real that Welbilt’s Multiplex
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`FreshBlender, Multiplex Blend In Cup Workstation, and MAM9904 Blend-In-Cup – Manual Fill
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`blenders infringe the ’150 patent, Welbilt has contributed to the infringement of at least claims 1, 3,
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`7, 8, 12, and 14 by others by providing the Accused Products to customers. The Accused Products
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`and/or their self-cleaning components are not staple articles of commerce, have no substantial non-
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`infringing uses, and are specifically designed to perform the processes claimed in the ’150 patent.
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`33.
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`Since Welbilt knows that its Multiplex FreshBlender, Multiplex Blend In Cup
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`Workstation, and MAM9904 Blend-In-Cup – Manual Fill blenders infringe the ’150 patent,
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`Welbilt’s infringement of the ’150 patent is willful, deliberate and in conscious disregard of f’real’s
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`patent rights, making this an exceptional case within the meaning of 35 U.S.C. §§ 284 and 285.
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`34.
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`On information and belief, Welbilt will continue to infringe the ’150 patent,
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`and thereby cause irreparable injury to f’real, unless enjoined and restrained by this Court.
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`35.
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`As a result of the infringement of the ’150 patent by Welbilt, f’real has been
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`damaged in an amount to be determined at trial.
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`COUNT II
`(Infringement of U.S. Patent No. 7,520,662)
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`36.
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`f’real realleges and incorporates by reference paragraphs 1 through 35 of this
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`Complaint.
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`37.
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`The ’662 patent is valid and enforceable.
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`38. Welbilt has directly infringed at least claims 21 and 22 of the ’662 patent by
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`making and/or using the Multiplex FreshBlender blenders that practice the patented inventions.
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`Welbilt has also directly infringed at least claim 21 of the ’662 patent by making and/or using the
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`Multiplex Blend In Cup Workstation and MAM9904 Blend-In-Cup – Manual Fill blenders that
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`practice the patented invention.
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`39.
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`To the extent that any step or steps of claim 21 or claim 22 of the ’662 patent
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`is not directly performed by Welbilt during operation of the Accused Products, Welbilt directs or
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`controls the performance of those steps by others and/or conditions the receipt of a benefit upon
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`performance of such steps and establishes the manner or timing of that performance.
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`40. Welbilt has had actual knowledge of the ’662 patent since at least August
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`2018 from correspondence between f’real and Welbilt regarding the ’662 patent.
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`41.
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`Despite knowing through communications with f’real that Welbilt’s Multiplex
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`FreshBlender, Multiplex Blend In Cup Workstation, and MAM9904 Blend-In-Cup – Manual Fill
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`blenders infringe the ’662 patent, Welbilt has induced the infringement of at least claims 21 and 22
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`of the ’662 patent by providing operating information and/or demonstrations to users and prospective
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`users.
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`10
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`42.
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`Despite knowing through communications with f’real that Welbilt’s Multiplex
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`FreshBlender, Multiplex Blend In Cup Workstation, and MAM9904 Blend-In-Cup – Manual Fill
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`blenders infringe the ’662 patent, Welbilt has contributed to the infringement of at least claims 21
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`and 22 by others by providing the Accused Products to customers. The Accused Products and/or
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`their self-cleaning components are not staple articles of commerce, have no substantial non-
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`infringing uses, and are specifically designed to perform the processes claimed in the ’662 patent.
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`
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`43.
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`Since Welbilt knows that its Multiplex FreshBlender, Multiplex Blend In Cup
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`Workstation, and MAM9904 Blend-In-Cup – Manual Fill blenders infringe the ’662 patent,
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`Welbilt’s infringement of the ’662 patent is willful, deliberate and in conscious disregard of f’real’s
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`patent rights, making this an exceptional case within the meaning of 35 U.S.C. §§ 284 and 285.
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`44.
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`On information and belief, Welbilt will continue to infringe the ’662 patent,
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`and thereby cause irreparable injury to f’real, unless enjoined and restrained by this Court.
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`45.
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`As a result of the infringement of the ’662 patent by Welbilt, f’real has been
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`damaged in an amount to be determined at trial.
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`JURY DEMAND
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`f’real hereby demands a trial by jury for all issues so triable.
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`PRAYER FOR RELIEF
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`WHEREFORE, f’real asks this Court to enter judgment in f’real’s favor and against
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`defendant Welbilt as follows:
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`A.
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`B.
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`C.
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`That defendant Welbilt has infringed f’real’s ’150 and ’662 patents;
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`That infringement of the ’150 and ’662 patents by Welbilt has been willful;
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`That defendant Welbilt, its officers, agents, servants, employees and all
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`persons in active concert or participation with any of them, and their successors and assigns be
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`temporarily, preliminarily, and permanently enjoined from infringement of the ’150 and ’662 patents
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`including, but not limited to, making, using, offering for sale, selling, and/or importing into the
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`United States Multiplex FreshBlender, Multiplex Blend In Cup Workstation, and MAM9904 Blend-
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`In-Cup – Manual Fill blenders and any other blending machines that infringe any of the patents-in-
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`suit before the expiration dates of those patents;
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`D.
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`As part of the prayed for injunction, that this Court order defendant Welbilt to
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`recall from retailers and all others in the chain of commerce all infringing Multiplex FreshBlender,
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`Multiplex Blend In Cup Workstation, and MAM9904 Blend-In-Cup – Manual Fill blenders;
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`E.
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`That f’real be awarded damages under 35 U.S.C. § 284 adequate to
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`compensate it for defendant Welbilt’s infringement of the ’150 and ’662 patents, but no less than a
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`reasonable royalty, with interest (including pre-judgment and post-judgment interest), and a trebling
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`of such damages in view of the willful nature of the infringement;
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`F.
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`That defendant Welbilt be ordered to make a written report within a
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`reasonable period, to be filed with the Court, detailing the manner of compliance with the requested
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`injunctive relief;
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`G.
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`H.
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`proper.
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`That f’real be awarded its reasonable attorneys’ fees and costs of suit; and
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`That f’real be awarded such other relief as the Court may deem just and
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`OF COUNSEL:
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`Guy W. Chambers
`Ellen P. Liu
`SIDEMAN & BANCROFT LLP
`One Embarcadero Center, 22nd Floor
`San Francisco, CA 94111
`(415) 392-1960
`
`June 3, 2019
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`
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`
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Michael Flynn
`
`
`
`
`Rodger D. Smith II (#3778)
`Michael Flynn (#5333)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`rsmith@mnat.com
`mflynn@mnat.com
`
`Attorneys for Plaintiff
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