Case 2:13-cv-00230-JRG Document 1 Filed 03/22/13 Page 1 of 6 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`HARCOL RESEARCH, LLC
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`Plaintiff,
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`v.
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`USPLABS, LLC;
`VITAMIN WORLD, INC.;
`NBTY, INC.; and
`VITAMIN SHOPPE, INC.
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`Defendants.
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`§
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`§ CIVIL ACTION NO. 2:13-cv-230
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`§ JURY TRIAL DEMANDED
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff Harcol Research, LLC (“Plaintiff”) hereby alleges for its Complaint against
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`USPlabs, LLC; Vitamin World, Inc.; NBTY, Inc.; and Vitamin Shoppe, Inc. (“Defendants”), on
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`personal knowledge as to its own activities and on information and belief as to the activities of
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`others, as follows:
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`I.
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`THE PARTIES
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`1.
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`Plaintiff is a limited liability company organized and existing under the laws of
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`Nevada, with a principal place of business at 5935 Old Bullard Road, Suite 207 in Tyler, Texas,
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`75703.
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`2.
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`Plaintiff is the owner and assignee of United States Patent No. 5,817,364 (“the
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`‘364 patent”) titled “Beverage Containing Alpha-Ketoglutaric Acid and Method of Making.”
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`Plaintiff has owned the ‘364 patent during at least a portion of the period of the Defendant’s
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`infringing acts and still owns the patent.
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`3.
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`Defendant USPlabs, LLC is a company organized and existing under the laws of
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`Texas with a principal place of business at 10761 King William Drive in Dallas, Texas, 75220.
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`4.
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`Defendants NBTY, Inc. and Vitamin World, Inc. are both corporations organized
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`and existing under the laws of Delaware with places of business at the Parkdale Mall, 6155
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`Eastex Freeway, Suite 720, in Beaumont, Texas, 77706, and at Central Mall, 3100 Highway 365,
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`USPlabs EXHIBIT 1002
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`Case 2:13-cv-00230-JRG Document 1 Filed 03/22/13 Page 2 of 6 PageID #: 2
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`Space #140 in Port Arthur, Texas, 77642, where they have “Vitamin World” retail stores. These
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`two Defendants also maintain a place of business at 2011 Smithtown Avenue in Ronkonkoma,
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`New York, 11779.
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`5.
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`Defendant Vitamin Shoppe, Inc. is a corporation organized and existing under the
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`laws of Delaware with a place of business at 5899 Eastex Freeway, Suite 200, in Beaumont,
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`Texas, 77701, where it has a “Vitamin Shoppe” retail store. Vitamin Shoppe, Inc. also maintains
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`a place of business at 2101 91st Street in North Bergen, New Jersey, 07047.
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`II.
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`JURISDICTION AND VENUE
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`6.
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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. Accordingly, this Court has subject matter
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`jurisdiction pursuant to 28 U.S.C. §§ 1331, 1338, and 1367.
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`7.
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`8.
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`Venue is proper in this district pursuant to 28 U.S.C. §§ 1391 and 1400.
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`This Court has personal jurisdiction over Defendants. Defendants, directly or
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`through intermediaries (including distributors, retailers, and others), ship, distribute, offer for
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`sale, sell, and advertise nutritional supplement products in the United States, the State of Texas,
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`and the Eastern District of Texas.
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`9.
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`Defendant USPlabs, LLC, from its headquarters in Dallas, Texas, designs,
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`formulates, manufactures, makes, ships, distributes, offers for sale, sells, and advertises its
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`products that infringe on one or more claims of the ‘364 patent, including products sold under
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`the “Jack3d” brand name. USPlabs, LLC ships, distributes, offers for sale, and sells its products
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`to Defendants NBTY, Inc., Vitamin World, Inc., and Vitamin Shoppe, Inc. in the Eastern District
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`of Texas.
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`10.
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`Defendants NBTY, Inc. and Vitamin World, Inc., from retail locations in the
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`Eastern District of Texas, distribute, offer for sale, sell, and advertise products that infringe on
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`one or more claims of the ‘364 patent, including products sold under the “Jack3d” brand name,
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`and/or have done so in the past.
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`Case 2:13-cv-00230-JRG Document 1 Filed 03/22/13 Page 3 of 6 PageID #: 3
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`11.
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`Defendant Vitamin Shoppe, Inc., from at least one retail location in the Eastern
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`District of Texas, distributes, offers for sale, sells, and advertises products that infringe on one or
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`more claims of the ‘364 patent, including products sold under the “Jack3d” brand name.
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`12.
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`Defendants have purposefully and voluntarily placed products that infringe on one
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`or more claims of the ‘364 patent, including the “Jack3d”-branded products, into the stream of
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`commerce with the expectation that they will be purchased in the Eastern District of Texas, and
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`they are actually sold and purchased in this District by consumers residing in this District.
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`III. THE DEFENDANTS’ INFRINGEMENTS
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`13.
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`Defendants have shipped, distributed, offered for sale, sold, and advertised
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`products that infringe on one or more claims of the ‘364 patent (the “accused products”),
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`including without limitation the “Jack3d”-branded products, whose advertisements and/or labels
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`state that:
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`a. they come in powder form and are to be mixed with water and taken as a
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`beverage;
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`b. they should be taken prior to working out and have been voted the “Best
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`Energy Supplement”;
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`c. based on the label and the recommended serving size of the accused products,
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`they contain “Arginine Alpha-Ketoglutarate (A-AKG)” in an amount between
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`approximately 0.1 to 2.5 percent of their wet weight per serving; and
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`d. they contain citric acid.
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`14.
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`Defendants have infringed and are still infringing one or more claims of the ‘364
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`patent by making, using, selling, and offering for sale the accused products.
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`15.
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`Defendants have knowledge of the ‘364 patent, though the earliest exact date
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`Defendants obtained knowledge of the ‘364 patent is within the exclusive possession and control
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`of Defendants.
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`16.
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`Upon information and belief, Defendants had actual, first-hand knowledge of the
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`‘364 patent as early as the time Defendants began selling accused products in the marketplace.
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`Case 2:13-cv-00230-JRG Document 1 Filed 03/22/13 Page 4 of 6 PageID #: 4
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`For example and upon information and belief, Defendants employ and engage sophisticated,
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`experienced legal counsel with expertise in patent law, and Defendants, through their counsel,
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`conduct or should conduct due diligence on the potential for products Defendants sell to infringe
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`on patents and knew or should have known that the accused products actually infringe or could
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`infringe on the ‘364 patent, but Defendants decided to infringe the patents anyway or ignored the
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`risk of infringement.
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`17.
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`In the alternative and upon information and belief, Defendants subjectively
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`believed at the time Defendants began selling the accused products in the marketplace that there
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`is or was a high probability of the fact that a patent covering alpha-ketoglutaric acid as in the
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`‘364 patent existed and that Defendants took deliberate actions to avoid confirming that fact,
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`including not conducting due diligence as to potential patent infringements, and that Defendants
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`therefore willfully blinded themselves to the infringing nature of the accused products.
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`18.
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`At a minimum and in the alternative, Defendants will become aware of the ‘364
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`patent at the time of the filing and service of this Complaint, yet Defendants will not cease their
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`own infringing activities despite such knowledge.
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`IV.
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`FIRST CAUSE OF ACTION
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`Infringement of U.S. Patent No. 5,817,364
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`19.
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`Plaintiff repeats and re-alleges the allegations of the foregoing paragraphs of this
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`Complaint as if fully set forth herein.
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`20.
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`Defendants have in the past and still are literally and directly infringing or directly
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`infringing under the doctrine of equivalents one or more claims of the ‘364 patent by making,
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`using, selling, and offering for sale dietary supplements embodying the patented invention,
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`namely the accused products, and will continue to do so unless enjoined by this Court.
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`21.
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`22.
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`Defendants’ activities have been without express or implied license by Plaintiff.
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`As a result of Defendants’ acts of infringement, Plaintiff has suffered and will
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`continue to suffer damages in an amount to be proved at trial.
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`23.
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`As a result of Defendants’ acts of infringement, Plaintiff has been and will
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`continue to be irreparably harmed by Defendants’ infringements, which will continue unless
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`Defendants are enjoined by this Court.
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`24.
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`Defendants’ past infringement and/or continuing infringement has been deliberate
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`and willful, and this case is therefore an exceptional case, which warrants an award of treble
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`damages and attorneys’ fees in accordance with 35 U.S.C. § 285.
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`DEMAND FOR JURY TRIAL
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`Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff hereby demands a jury trial
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`for all issues in this case that properly are subject to a jury trial.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff prays for entry of judgment against Defendants as follows:
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`1.
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`A declaration that Defendants have infringed one or more claims of the ‘364
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`patent under 35 U.S.C. §§ 271 et seq.;
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`2.
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`That injunctions, preliminary and permanent, be issued by this Court restraining
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`Defendants, their respective officers, agents, servants, directors, and employees, and all persons
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`in active concert or participation with each, from infringing the ‘364 patent;
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`3.
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`That Defendants be required to provide to Plaintiff an accounting of all gains,
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`profits, and advantages derived by Defendants’ infringement of the ‘364 patent, and that Plaintiff
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`be awarded damages adequate to compensate Plaintiff for the wrongful infringing acts by
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`Defendants, in accordance with 35 U.S.C. § 284;
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`4.
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`That: (a) injunctions, preliminary and permanent, be issued by this Court
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`restraining Defendants, their respective officers, agents, servants, directors, and employees, and
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`all persons in active concert or participation with each, from indirectly infringing the ‘364 patent;
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`(b) Defendants be required to provide to Plaintiff an accounting of all gains, profits, and
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`advantages derived by Defendants’ indirect infringement of the ‘364 patent; (c) Plaintiff be
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`awarded damages adequate to compensate Plaintiff for the wrongful infringing acts by
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`Defendants, in accordance with 35 U.S.C. § 284; and (d) the damages awarded to Plaintiff with
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`Case 2:13-cv-00230-JRG Document 1 Filed 03/22/13 Page 6 of 6 PageID #: 6
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`regard to the ‘364 patent be increased up to three times, in view of Defendants’ willful
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`infringement, in accordance with 35 U.S.C. § 284;
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`5.
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`That this case be declared to be exceptional in favor of Plaintiff under 35 U.S.C. §
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`285, and that Plaintiff be awarded its reasonable attorneys’ fees and other expenses incurred in
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`connection with this action;
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`6.
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`7.
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`8.
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`9.
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`That Plaintiff be awarded its interest and costs of suit incurred in this action;
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`Compensatory damages;
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`Punitive damages; and
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`That Plaintiff be awarded such other and further relief as this Court may deem just
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`and proper.
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`Dated: March 22, 2013
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`Respectfully Submitted,
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`By: /s/ William E. Davis, III
`William E. Davis, III
`Texas State Bar No. 24047416
`THE DAVIS FIRM, PC
`111 West Tyler Street
`Longview, Texas 75601
`Telephone: (903) 230-9090
`Facsimile: (903) 230-9661
`Email: bdavis@bdavisfirm.com
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`ATTORNEY FOR PLAINTIFF
`HARCOL RESEARCH, LLC
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