`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YORK
`
`Case No.: 1:15-cv-____
`
`COMPLAINT
`
`JURY TRIAL DEMANDED
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`§§§§§§§§§§§
`
`BEDGEAR, LLC
`
`Plaintiff,
`
`v.
`
`COMFORT REVOLUTION, LLC
`
`Defendant.
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`This is an action for patent infringement in which plaintiff, Bedgear, LLC (“Bedgear”),
`
`by its counsel, Bryan Cave LLP, makes the following allegations in support of its Complaint
`
`against defendant, Comfort Revolution, LLC (“Comfort Revolution”):
`
`PARTIES
`
`1.
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`Bedgear is a Delaware limited liability company with its principal place of
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`business at 110 Bi-County Blvd., Suite 101, Farmingdale, NY, 11735. Bedgear draws on its
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`proprietary technology to innovate and develop various bedding products and accessories,
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`including pillows, mattress protectors, and bed sheets. Among other things, Bedgear’s bedding
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`products provide advanced functional properties that enhance performance and facilitate
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`recovery during sleep. As a result of its innovations, Bedgear has become the market leader in
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`the performance bedding industry.
`
`2.
`
`On information and belief, Comfort Revolution is a Delaware limited liability
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`company with its principal place of business at 187 Route 36, Suite 205, West Long Branch, NJ
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`07764.
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`
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`3.
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`Comfort Revolution manufactures, imports, offers for sale, sells, and/or
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`distributes bedding products, including pillows, that infringe Bedgear’s patents.
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`JURISDICTION AND VENUE
`
`4.
`
`This action arises under the patent laws of the United States, Title 35 U.S.C. §§ 1,
`
`et seq. Accordingly, this Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
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`1338(a).
`
`5.
`
`On information and belief, Comfort Revolution is subject to this Court’s specific
`
`and general personal jurisdiction, pursuant to due process and/or the New York Long Arm
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`Statute, due at least to its substantial ongoing business activities in this forum, including
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`regularly doing or soliciting business, engaging in other persistent courses of conduct, and/or
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`deriving substantial revenue from goods and services provided to persons or entities in New
`
`York and this District.
`
`6.
`
`On information and belief, Comfort Revolution has itself, and through various
`
`third party retailers, repeatedly transacted business with customers in New York and within this
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`District, and has advertised, promoted, sold, and shipped infringing products into New York,
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`including this District, without Bedgear’s authorization or permission. By way of example, on
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`information and belief, third party retailers through which Comfort Revolution distributes, offers
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`for sale, and sells infringing products within this District include, a Bed Bath & Beyond store,
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`located in Westbury, NY, and a Macy’s Department store, located in Garden City, NY. On
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`information and belief, Comfort Revolution operates a showroom located at 230 Fifth Avenue,
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`New York, NY where it advertises, promotes, offers for sale and/or sells infringing products.
`
`7.
`
`On information and belief, Comfort Revolution also maintains and operates one
`
`or more websites on the Internet, including a website at: http://www.comfortrevolution.com,
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`2
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`which are operational twenty-four (24) hours a day, seven days a week, are accessible to and
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`regularly accessed by residents of this District and other persons throughout the United States,
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`and through which Comfort Revolution advertises, promotes, offers for sale, and sells its
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`products. On information and belief, Comfort Revolution has, through its websites and/or other
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`authorized third party websites, repeatedly transacted business with customers throughout the
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`United States, including customers within this District, and has advertised, promoted, offered for
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`sale, sold, and shipped infringing products into this District without Bedgear’s authorization or
`
`permission. Further, on information and belief, Comfort Revolution has derived substantial
`
`revenue from interstate commerce and has interjected itself into this District by its operation of a
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`nationwide business through commercial websites and third party distributors or resellers
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`whereby Comfort Revolution has sold and continues to sell infringing products.
`
`8.
`
`Venue is proper in this District under 28 U.S.C. §§ 1391(b), 1391(c), and 1400(b)
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`at least because Comfort Revolution is subject to personal jurisdiction in this District, does
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`business in the State of New York and this District, and has committed and continues to commit
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`acts of infringement in this District.
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`BACKGROUND
`
`Bedgear’s Bedding Innovations
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`9.
`
`Bedgear is a leading manufacturer of specialty bedding products and sleep
`
`essentials, including pillows and pillow covers, pillow protectors, mattress protectors and
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`encasements, mattress toppers, blankets, and bed sheets.
`
`10.
`
`Bedgear’s philosophy is centered around designing, developing, and delivering
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`bedding products that provide individuals with improved recovery during sleep in order to
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`enhance their active lifestyles.
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`3
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`11.
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`Bedgear was founded by nationally-recognized entrepreneur, Eugene Alletto,
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`whose two decades of prior expertise with home furnishings and textiles laid the foundation for
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`Bedgear’s unique approach to fabrics and manufacturing techniques, as well as its innovations
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`across a wide array of specialty bedding products.
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`12.
`
`Since its inception, Bedgear has been dedicated to developing and perfecting
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`bedding products and sleep essentials that are engineered using advanced textile fabrication
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`techniques. Bedgear utilizes these proprietary technologies and techniques to provide consumers
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`with a variety of high-tech, high-quality bedding products that have new and improved
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`functional characteristics designed to improve sleep quality.
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`13.
`
`Due to its many innovations and novel high-tech approach to bedding products,
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`Bedgear is well-known for being a pioneer of performance bedding.
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`14.
`
`For example, Bedgear has been referred to in the media as “the company that
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`invented ‘performance sleep,’” based on its performance branded line of bedding products.
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`(Bloomberg, “Small to Big” video segment, “The Company That Invented ‘Performance Sleep,’”
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`November 4, 2014). Bedgear and its performance branded bedding products have also been
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`featured on numerous other media networks and outlets, including NBC (NBC Weekend Today
`
`New York, “Best Gifts for Mother’s Day,” May 3, 2015), KHONTV (KHONTV, “Is Your
`
`Pillow Right For You,” February 27, 2015), FIOS1 (FIOS1, “Money & Main$treet,” January 29,
`
`2015), ABC (ABC World News Now, “Sweet Dreams – High-Tech Bedding,” October 23,
`
`2014), and The Daily (The Daily news app, “Sleeping on a Fortune,” December 11, 2012).
`
`15.
`
`Bedgear has also been selected as the specialty bedding partner of a number of
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`nationally-recognized professional sports teams, including the New York Mets, the Detroit
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`Tigers, the San Diego Padres, the Denver Broncos, and the New York Islanders.
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`4
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`16.
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`One area in which Bedgear has devoted considerable resources and effort is in
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`creating and developing pillows and pillow covers. Bedgear’s founder, Eugene Alletto, came up
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`with the idea of performance pillows and invented ground-breaking solutions that substantially
`
`improve an individual’s sleep environment and sleep quality through novel pillow designs and
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`innovative fabrics and materials.
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`17.
`
`Bedgear was the first to develop and introduce a line of performance pillows that
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`utilize and implement these significant innovations. Among other things, Bedgear’s inventive
`
`performance pillows provide improved head and neck support for different types of sleepers,
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`enhance ventilation and air flow through the pillows, and provide a cooling and wicking effect
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`during use.
`
`18.
`
`Bedgear has protected various aspects of its inventive solutions and cutting-edge
`
`technologies with a range of intellectual property rights. In particular, as a result of its
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`significant innovations, Bedgear has been granted a number of patents by the U.S. Patent and
`
`Trademark Office (“the Patent Office”), which protect various aspects of its novel performance
`
`pillows.
`
`19.
`
`Among the patents that Bedgear has been awarded is U.S. Patent No. 8,646,134
`
`(“the ’134 Patent”), entitled “Pillow with Gusset of Open Cell Construction.” The ’134 Patent
`
`was filed on June 22, 2012 and issued on February 11, 2014.
`
`20.
`
`Bedgear is the owner by assignment of the ’134 Patent, with ownership of all
`
`substantial rights in the ’134 Patent, including the right to exclude others and to sue and recover
`
`damages for the past and future infringement thereof. A true and correct copy of the ’134 Patent
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`is attached hereto as Exhibit A.
`
`5
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`21.
`
`The claims of the ’134 Patent are directed to, inter alia, new and improved
`
`pillows that support the head and/or neck of a person. For example, certain of these novel
`
`pillows include a cover having two opposing panels, a gusset that perimetrically bounds and
`
`joins the two panels and is formed of an open cell construction, and a compliant fill material that
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`is disposed within the cover.
`
`22.
`
`Bedgear’s patents on this technology also include U.S. Patent No. 8,887,332 (“the
`
`’332 Patent”), entitled “Pillow with Gusset of Open Cell Construction.” The ’332 Patent was
`
`filed on December 16, 2013 and issued on November 18, 2014.
`
`23.
`
`Bedgear is the owner by assignment of the ’332 Patent, with ownership of all
`
`substantial rights in the ’332 Patent, including the right to exclude others and to sue and recover
`
`damages for the past and future infringement thereof. A true and correct copy of the ’332 Patent
`
`is attached hereto as Exhibit B.
`
`24.
`
`The claims of the ’332 Patent are directed to, inter alia, new and improved
`
`pillows that support the head and/or neck of a person. For example, certain of these novel
`
`pillows include two panels that both include an edge defining a perimeter, and a gusset that joins
`
`the two panels, which includes a material having greater porosity than a porous material that is
`
`included in the two panels.
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`25.
`
`Bedgear’s patents on this technology also include U.S. Patent No. 9,015,883 (“the
`
`’883 Patent” and, together with the ’134 and ’332 Patents, “the Asserted Utility Patents”),
`
`entitled “Pillow with Gusset of Open Cell Construction.” The ’883 Patent was filed on July 10,
`
`2014 and issued on April 28, 2015.
`
`26.
`
`Bedgear is the owner by assignment of the ’883 Patent, with ownership of all
`
`substantial rights in the ’883 Patent, including the right to exclude others and to sue and recover
`
`6
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`
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`damages for the past and future infringement thereof. A true and correct copy of the ’883 Patent
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`is attached hereto as Exhibit C.
`
`27.
`
`The claims of the ’883 Patent are directed to, inter alia, new and improved
`
`pillows that support the head and/or neck of a person. For example, certain of these novel
`
`pillows include two panels both of which include an edge defining a perimeter, a gusset that
`
`joins the two panels, and an inner cavity that is defined by the inner surfaces of the two panels
`
`and the gusset. In certain embodiments, the pillow is configured to have air enter the cavity
`
`through pores in the two panels and exit the cavity through pores in the gusset.
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`28.
`
`Bedgear’s innovative pillow solutions and designs are also protected by a number
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`of design patents issued by the Patent Office, including, but not limited to, U.S. Design Patent
`
`No. D672,183 (“the ’183 Patent” or “Asserted Design Patent”), entitled “Pillow with Mesh
`
`Gusset.” The ’183 patent was filed on December 29, 2011, and issued on December 11, 2012.
`
`29.
`
`Bedgear is the owner by assignment of the ’183 Patent, with ownership of all
`
`substantial rights in the ’183 Patent, including the right to exclude others and to sue and recover
`
`damages for the past and future infringement thereof. A true and correct copy of the ’183 Patent
`
`is attached hereto as Exhibit D.
`
`30.
`
`The claim of the ’883 Patent is directed to a new and improved ornamental design
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`for a pillow that includes a mesh gusset, as shown in the patent figures.
`
`31.
`
`The Patent Office examined the Asserted Utility Patents and the Asserted Design
`
`Patent over a period of several years. After this thorough examination, the Patent Office found
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`that the inventions described and claimed in the Asserted Utility Patents and the Asserted Design
`
`Patent are both new and not obvious in light of prior patents, publications, and other references.
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`7
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`32.
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`Bedgear filed its initial patent application on this technology on June 22, 2011,
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`and the first of the Asserted Utility Patents, the ’134 Patent, issued on February 11, 2014. The
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`applications that issued as the ’332 and ’883 Patents, were published, and available to the public,
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`on April 10, 2014 and October 30, 2014, respectively.
`
`33.
`
`Bedgear began selling performance pillow and pillow cover products that utilize
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`its patented technology and designs in 2011.
`
`34.
`
`As a result of its proprietary technology and products, Bedgear has become
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`known as the leader in performance pillows and other performance bedding products. Bedgear’s
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`innovative performance pillows have received considerable media attention and industry
`
`recognition, and have achieved significant commercial success.
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`Comfort Revolution’s Infringing Activities
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`35.
`
`On information and belief, Defendant Comfort Revolution is a furniture and
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`bedding company, which manufactures, imports, sells, offers for sale, and/or distributes, a range
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`of bed products, including mattress frames, mattresses, toppers, pads, pillows, and pillow covers.
`
`36.
`
`On information and belief, Comfort Revolution has sold and continues to sell a
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`number of pillow and/or pillow cover products having a mesh gusset, including, but not limited
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`to, a Hydraluxe AirTM Cooling Fiber Pillow, a LuxLiving Talalay Latex Pillow, and a LuxLiving
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`Memory Foam Lux Gel Pillow, that are described as being designed to increase airflow and
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`ventilation and improved cooling effects
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`37.
`
`On information and belief, Comfort Revolution’s LuxLiving Talalay Latex Pillow
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`and LuxLiving Memory Foam Lux Gel Pillow products have been, and continue to be,
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`distributed, offered for sale, and/or sold exclusively by a third party, MattressFirm Inc., under its
`
`8
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`Case 2:15-cv-07121-WFK-AKT Document 1 Filed 12/14/15 Page 9 of 22 PageID #: 9
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`private-label “LuxLiving” brand. See http://www.mattressfirm.com/lux-living-only-at-mattress-
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`firm.aspx.
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`38.
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`On information and belief, Comfort Revolution’s pillow and/or pillow cover
`
`products, including, but not limited to, its Hydraluxe AirTM Cooling Fiber Pillow, infringe
`
`Bedgear’s Asserted Utility Patents and Asserted Design Patent. Comfort Revolution’s
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`Hydraluxe AirTM Cooling Fiber Pillow, and any equivalent products manufactured, distributed,
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`offered for sale or sold under different names by, or on behalf of, Comfort Revolution are
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`referred to herein as the “Accused Products.”
`
`39.
`
`On information and belief, the Accused Products include, among other things,
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`pillows having a cover with two or more panels that are joined together by a gusset and an inner
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`cavity that includes a fill material. On information and belief, certain of these Accused Products
`
`include a gusset that perimetrically bounds two panels, is made of a material with greater
`
`porosity than the panels, and/or has an open cell construction. On information and belief, certain
`
`of these Accused Products are configured to allow air to flow into a cavity through pores in the
`
`panels and out of the cavity through pores in the gusset.
`
`40.
`
`By way of example, Comfort Revolution’s so-called Hydraluxe AirTM Cooling
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`Fiber Pillow is shown below (with annotations to highlight certain elements):
`
`Top Panel
`
`Mesh Gusset
`
`Bottom Panel
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`9
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`41.
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`The pillow had two panels, a top panel and a bottom panel, both made from the
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`same type of material, and a mesh gusset positioned between the two panels that surrounds the
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`entire pillow and is made from a different type of material.
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`42.
`
`According to the informational insert and product packaging materials provided
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`by Comfort Revolution with its Hydraluxe Air pillow (examples of which are shown below), the
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`pillow is designed to improve ventilation, airflow, and cooling effects:
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`Pages 4-5 from the informational insert included with the Hydraluxe AirTM product.
`
`10
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`Side view of the Hydraluxe AirTM product packaging.
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`43.
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`According to these materials, the Hydraluxe AirTM pillow includes a “ventilated
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`cover,” in the form of a “specially engineered cover [that] uses a mesh gusset to release internal
`
`heat build up,” and a “composition [that] is designed to maximize airflow, which enhances the
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`cooling effect.”
`
`44.
`
`On information and belief, Comfort Revolution’s Hydraluxe AirTM Cooling Fiber
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`Pillow product includes, among other things, a cover that has two opposing panels (e.g., top and
`
`bottom panels) both with edges that define a perimeter, a gusset that joins and/or perimetrically
`
`bounds the two panels and is formed of an open cell construction and a base material, and an
`
`inner cavity defined by inner surfaces of the two panels and the gusset that includes a fill
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`material.
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`11
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`Case 2:15-cv-07121-WFK-AKT Document 1 Filed 12/14/15 Page 12 of 22 PageID #: 12
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`45.
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`On information and belief, the gusset in the Hydraluxe AirTM Cooling Fiber
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`Pillow is made of a material that has a greater porosity than the material of the two opposing
`
`panels.
`
`46.
`
`On information and belief, the Hydraluxe AirTM Cooling Fiber Pillow product
`
`enables air to enter the inner cavity through pores in the two opposing panels and exit the inner
`
`cavity through pores in the gusset.
`
`47.
`
`Comfort Revolution has not sought permission to use Bedgear’s patented
`
`inventions and is not licensed under any of the Asserted Utility Patents or the Asserted Design
`
`Patent. As a result, Comfort Revolution has infringed and continues to infringe Bedgear’s
`
`patents by making, using, selling, offering for sale or importing its Accused Products and/or
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`having its Accused Products made, sold, offered for sale, distributed, or imported on its behalf by
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`third parties, such as manufacturers, resellers and distributors.
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`48.
`
`Although Bedgear is entitled by law to keep the Accused Products out of the
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`marketplace and to prevent the entry of lower quality infringing goods from irreparably eroding
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`the marketplace, and Bedgear is prepared to fully pursue legal relief to abate such harm, prior to
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`filing this lawsuit Bedgear attempted in good faith to work cooperatively with Comfort
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`Revolution to determine if a business solution would be possible.
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`49.
`
`On October 23, 2015, Bedgear sent a letter to Comfort Revolution (the “October
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`23rd Letter”), which notified Comfort Revolution of certain intellectual property rights owned by
`
`Bedgear, including the Asserted Utility Patents and the Asserted Design Patent, and explained
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`that Comfort Revolution’s Accused Products were infringing Bedgear’s intellectual property.
`
`50.
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`In response, Comfort Revolution sent two letters, dated October 26, 2015 and
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`November 9, 2015, in which it asserted that its products do not infringe the Asserted Utility
`
`12
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`Case 2:15-cv-07121-WFK-AKT Document 1 Filed 12/14/15 Page 13 of 22 PageID #: 13
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`Patents or the Asserted Design Patent because of certain alleged distinctions. On information
`
`and belief, these alleged distinctions are inaccurate and/or irrelevant.
`
`51.
`
`On information and belief, since receiving the October 23rd Letter, Comfort
`
`Revolution has continued to manufacture, market, distribute, offer, and/or sell the Accused
`
`Products.
`
`52.
`
`On information and belief, Comfort Revolution has been aware of Bedgear’s
`
`performance pillow products and patents and chose to disregard and knowingly infringe
`
`Bedgear’s intellectual property rights. At least since its receipt of the October 23rd Letter,
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`Comfort Revolution has been fully aware of Bedgear’s rights in the Asserted Utility Patents and
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`the Asserted Design Patent and has continued to act despite an objectively high likelihood that its
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`actions constitute infringement of the Asserted Utility Patents and the Asserted Design Patent
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`and knew or should of known of that objectively high risk.
`
`53.
`
`Bedgear is forced to file this lawsuit to protect its patented technology and
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`innovations and seek redress for Comfort Revolution’s ongoing, willful infringement.
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`Comfort Revolution’s Infringement Irreparably Harms Bedgear
`
`54.
`
`Bedgear is harmed by Comfort Revolution’s use of Bedgear’s patented
`
`technologies in a way that cannot be remedied by monetary damages alone. Comfort Revolution
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`has received substantial revenue and increased market share by selling and distributing (and
`
`having others sell and distribute) products that practice the technology and/or design described in
`
`the ’134, ’332, ’883, and ’183 Patents and without having to incur the costs of developing or
`
`licensing this technology.
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`55.
`
`On information and belief, Comfort Revolution’s infringement has caused
`
`Bedgear to suffer irreparable harm due to, among other things, lost business opportunities, lost
`
`13
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`market share, and price erosion. Even if Comfort Revolution were to subsequently pay past due
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`royalties, lost profits, or other damages, there is no reason to believe that Comfort Revolution
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`would stop infringing, and it would still enjoy the market share it has developed while infringing
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`upon, the ’134, ’332, ’883, and ’183 Patents. Due to the difficulty in predicting whether, if at all,
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`Bedgear can recover this market share, Bedgear’s harm cannot be compensated by payment of
`
`monetary damages alone.
`
`COUNT I
`(Infringement of U.S. Patent No. 8,646,134)
`
`56.
`
`Bedgear incorporates by reference and realleges the averments set forth in the
`
`preceding paragraphs.
`
`57.
`
`On February 11, 2014, the Patent Office duly and legally issued the ’134 Patent.
`
`Bedgear is the owner, by assignment, of all right, title, and interest in and to the ’134 Patent,
`
`including the right to recover damages for past and future infringement.
`
`58.
`
`Comfort Revolution has infringed and continues to infringe the ’134 Patent in this
`
`District and throughout the United States in violation of 35 U.S.C. § 271 by making, using,
`
`selling, offering for sale, importing and/or causing others to make, use, sell, offer for sale and/or
`
`import, one or more of the Accused Products that practice one or more claims of the ’134 Patent.
`
`59.
`
`For example, Comfort Revolution has infringed and continues to infringe the ’134
`
`Patent by making, using, selling, offering for sale, and/or importing its Hydraluxe AirTM Cooling
`
`Fiber Pillow product that includes each and every feature recited in at least claims 11, 12, 13, and
`
`15 of the ’134 Patent.
`
`60.
`
`As a direct and proximate result of Comfort Revolution’s infringement of the ’134
`
`Patent, Bedgear has suffered and continues to suffer damage. Bedgear is entitled to recover
`
`14
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`Case 2:15-cv-07121-WFK-AKT Document 1 Filed 12/14/15 Page 15 of 22 PageID #: 15
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`damages from Comfort Revolution to compensate for such infringement, in an amount to be
`
`determined at trial.
`
`61.
`
`By receipt of the October 23rd Letter, at least, Comfort Revolution’s ongoing acts
`
`of infringement of the ’134 Patent have been committed and are being committed with full
`
`knowledge of Bedgear’s rights in the ’134 Patent, and Comfort Revolution has acted and is
`
`continuing to act despite an objectively high likelihood that its actions constitute infringement of
`
`the ’134 Patent and Comfort Revolution knew or should of known of that objectively high risk.
`
`At least since receiving the October 23rd Letter, Comfort Revolution’s acts constitute willful and
`
`deliberate infringement.
`
`62.
`
`To the extent that facts uncovered during discovery show that Comfort
`
`Revolution’s past infringement of the ’134 Patent has been willful, Bedgear reserves the right to
`
`seek enhanced damages under 35 U.S.C. § 284, as well as reasonable attorneys’ fees and costs.
`
`63.
`
`The acts of infringement by Comfort Revolution identified herein have caused
`
`and will continue to cause irreparable injury to Bedgear, for which it has no adequate remedy at
`
`law, unless and until Comfort Revolution is enjoined from further infringement by this Court in
`
`accordance with 35 U.S.C. § 283. Considering the competitive relationship and balance of the
`
`hardships between the parties, a remedy in equity, such as a permanent injunction is warranted
`
`and would be in the public interest.
`
`COUNT II
`(Infringement of U.S. Patent No. 8,887,332)
`
`64.
`
`Bedgear incorporates by reference and realleges the averments set forth in the
`
`preceding paragraphs.
`
`15
`
`
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`Case 2:15-cv-07121-WFK-AKT Document 1 Filed 12/14/15 Page 16 of 22 PageID #: 16
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`65.
`
`On November 18, 2014, the Patent Office duly and legally issued the ’332 Patent.
`
`Bedgear is the owner, by assignment, of all right, title, and interest in and to the ’332 Patent,
`
`including the right to recover damages for past and future infringement.
`
`66.
`
`Comfort Revolution has infringed and continues to infringe the ’332 Patent in this
`
`District and throughout the United States in violation of 35 U.S.C. § 271 by making, using,
`
`selling, offering for sale, importing and/or causing others to make, use, sell, offer for sale and/or
`
`import, one or more of the Accused Products that practice one or more claims of the ’332 Patent.
`
`67.
`
`For example, Comfort Revolution has infringed and continues to infringe the ’332
`
`Patent by making, using, selling, offering for sale, and/or importing its Hydraluxe AirTM Cooling
`
`Fiber Pillow product, that includes each and every feature recited in at least claims 1, 6-9, 16, 22,
`
`29, 31, and 34 of the ’332 Patent.
`
`68.
`
`As a direct and proximate result of Comfort Revolution’s infringement of the ’332
`
`Patent, Bedgear has suffered and continues to suffer damage. Bedgear is entitled to recover
`
`damages from Comfort Revolution to compensate for such infringement, in an amount to be
`
`determined at trial.
`
`69.
`
`By receipt of the October 23rd Letter, at least, Comfort Revolution’s ongoing acts
`
`of infringement of the ’332 Patent have been committed and are being committed with full
`
`knowledge of Bedgear’s rights in the ’332 Patent, and Comfort Revolution has acted and is
`
`continuing to act despite an objectively high likelihood that its actions constitute infringement of
`
`the ’332 Patent and Comfort Revolution knew or should of known of that objectively high risk.
`
`At least since receiving the October 23rd Letter, Comfort Revolution’s acts constitute willful and
`
`deliberate infringement.
`
`16
`
`
`
`Case 2:15-cv-07121-WFK-AKT Document 1 Filed 12/14/15 Page 17 of 22 PageID #: 17
`
`70.
`
`To the extent that facts uncovered during discovery show that Comfort
`
`Revolution’s past infringement of the ’332 Patent has been willful, Bedgear reserves the right to
`
`seek enhanced damages under 35 U.S.C. § 284, as well as reasonable attorneys’ fees and costs.
`
`71.
`
`The acts of infringement by Comfort Revolution identified herein have caused
`
`and will continue to cause irreparable injury to Bedgear, for which it has no adequate remedy at
`
`law, unless and until Comfort Revolution is enjoined from further infringement by this Court in
`
`accordance with 35 U.S.C. § 283. Considering the competitive relationship and balance of the
`
`hardships between the parties, a remedy in equity, such as a permanent injunction is warranted
`
`and would be in the public interest.
`
`COUNT III
`(Infringement of U.S. Patent No. 9,015,883)
`
`72.
`
`Bedgear incorporates by reference and realleges the averments set forth in the
`
`preceding paragraphs.
`
`73.
`
`On April 28, 2015, the Patent Office duly and legally issued the ’883 Patent.
`
`Bedgear is the owner, by assignment, of all right, title, and interest in and to the ’883 Patent,
`
`including the right to recover damages for past and future infringement.
`
`74.
`
`Comfort Revolution has infringed and continues to infringe the ’883 Patent in this
`
`District and throughout the United States in violation of 35 U.S.C. § 271 by making, using,
`
`selling, offering for sale, importing and/or causing others to make, use, sell, offer for sale and/or
`
`import, one or more of the Accused Products that practice one or more claims of the ’883 Patent.
`
`75.
`
`For example, Comfort Revolution has infringed and continues to infringe the ’883
`
`Patent by making, using, selling, offering for sale, and/or importing its Hydraluxe AirTM Cooling
`
`Fiber Pillow product, that includes each and every feature recited in at least claims 1-10 and 14
`
`of the ’883 Patent.
`
`17
`
`
`
`Case 2:15-cv-07121-WFK-AKT Document 1 Filed 12/14/15 Page 18 of 22 PageID #: 18
`
`76.
`
`As a direct and proximate result of Comfort Revolution’s infringement of the ’883
`
`Patent, Bedgear has suffered and continues to suffer damage. Bedgear is entitled to recover
`
`damages from Comfort Revolution to compensate for such infringement, in an amount to be
`
`determined at trial.
`
`77.
`
`By receipt of the October 23rd Letter, at least, Comfort Revolution’s ongoing acts
`
`of infringement of the ’883 Patent have been committed and are being committed with full
`
`knowledge of Bedgear’s rights in the ’883 Patent, and Comfort Revolution has acted and is
`
`continuing to act despite an objectively high likelihood that its actions constitute infringement of
`
`the ’883 Patent and Comfort Revolution knew or should of known of that objectively high risk.
`
`At least since receiving the October 23rd Letter, Comfort Revolution’s acts constitute willful and
`
`deliberate infringement.
`
`78.
`
`To the extent that facts uncovered during discovery show that Comfort
`
`Revolution’s past infringement of the ’883 Patent has been willful, Bedgear reserves the right to
`
`seek enhanced damages under 35 U.S.C. § 284, as well as reasonable attorneys’ fees and costs.
`
`79.
`
`The acts of infringement by Comfort Revolution identified herein have caused
`
`and will continue to cause irreparable injury to Bedgear, for which it has no adequate remedy at
`
`law, unless and until Comfort Revolution is enjoined from further infringement by this Court in
`
`accordance with 35 U.S.C. § 283. Considering the competitive relationship and balance of the
`
`hardships between the parties, a remedy in equity, such as a permanent injunction is warranted
`
`and would be in the public interest.
`
`COUNT IV
`(Infringement of U.S. Design Patent No. D672,183)
`
`80.
`
`Bedgear incorporates by reference and realleges the averments set forth in the
`
`preceding paragraphs.
`
`18
`
`
`
`Case 2:15-cv-07121-WFK-AKT Document 1 Filed 12/14/15 Page 19 of 22 PageID #: 19
`
`81.
`
`On December 11, 2012, the Patent Office duly and legally issued the ’183 Patent.
`
`Bedgear is the owner, by assignment, of all right, title, and interest in and to the ’183 Patent,
`
`including the right to recover damages for past and future infringement.
`
`82.
`
`Comfort Revolution has infringed and continues to infringe the ’883 Patent in this
`
`District and throughout the United States in violation of 35 U.S.C. § 271 by making, using,
`
`selling, offering for sale, importing and/or causing others to make, use, sell, offer for sale and/or
`
`import, one or more Accused Products, including, but not limited to, its Hydraluxe AirTM
`
`Cooling Fiber Pillow product, that are substantially similar to claimed design of the ’183 Patent.
`
`83.
`
`As a direct and proximate result of Comfort Revolution’s infringement of the ’183
`
`Patent, Bedgear has suffered and continues to suffer damage. Bedgear is entitled to recover
`
`damages from Comfort Revolution to compensate for such infringement, in an amount to be
`
`determined at trial.
`
`84.
`
`By receipt of the October 23rd Letter, at least, Comfort Revolution’s ongoing acts
`
`of infringement of the ’183 Pate