2:14-cv-14553-NGE-MKM Doc # 1 Filed 12/02/14 Pg 1 of 10 Pg ID 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
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`CHEER PACK NORTH AMERICA LLC,
`a Delaware limited liability company,
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`Case No. ________________
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`Honorable ________________
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`Plaintiff,
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`v.
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`KSP CO. LTD.,
`a Korean company,
`d/b/a ASP, INC.,
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`Defendant.
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`COMPLAINT FOR PATENT INFRINGEMENT
`AND DEMAND FOR JURY TRIAL
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`NOW COMES the Plaintiff, CHEER PACK NORTH AMERICA LLC
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`(“Cheer Pack”), by its attorneys HARNESS, DICKEY & PIERCE, PLC, and for
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`its Complaint against KSP CO. LTD. (“KSP”) d/b/a ASP, INC. (“ASP”)
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`(“Defendant”) states as follows:
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`KSP EXHIBIT 1002
`Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
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`
`
`CHEER PACK NORTH AMERICA LLC,
`a Delaware limited liability company,
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`
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`Case No. ________________
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`Honorable ________________
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`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`KSP CO. LTD.,
`a Korean company,
`d/b/a ASP, INC.,
`
`
`
`
`
`
`Defendant.
`
`COMPLAINT FOR PATENT INFRINGEMENT
`AND DEMAND FOR JURY TRIAL
`
`
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`
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`NOW COMES the Plaintiff, CHEER PACK NORTH AMERICA LLC
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`(“Cheer Pack”), by its attorneys HARNESS, DICKEY & PIERCE, PLC, and for
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`its Complaint against KSP CO. LTD. (“KSP”) d/b/a ASP, INC. (“ASP”)
`
`(“Defendant”) states as follows:
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`KSP EXHIBIT 1002
`Page 1 of 10
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`2:14-cv-14553-NGE-MKM Doc # 1 Filed 12/02/14 Pg 2 of 10 Pg ID 2
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`NATURE OF THE ACTION
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`1.
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`This is an action for patent infringement under 35 U.S.C. §§ 154(d),
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`271, 283, 284, and 285.
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`THE PARTIES
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`2.
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`Cheer Pack is a Delaware limited liability company having a principal
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`place of business at 1 United Drive, West Bridgewater, Massachusetts 02379.
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`3.
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`On information and belief, KSP is a Korean company having a
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`principal place of business at KeumKang Penterium IT Tower #1421 Hagui-ro 282,
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`DongAn-Gu, AnYang-City, KyoungGi-Do, South Korea 431-810.
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`4.
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`On information and belief, KSP conducts business in the United States
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`as ASP, a division of KSP, having a place of business at 603 Parkcenter Drive,
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`Suite 108, Santa Ana, California, 92705.
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`JURISDICTION AND VENUE
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`5.
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`This Court has subject matter jurisdiction over this matter pursuant to
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`28 U.S.C. §§ 1331 and 1338(a).
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`6.
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`This Court has personal
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`jurisdiction over Defendant because
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`Defendant has transacted business in Michigan by among other things, their acts of
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`manufacturing, importing, marketing, distributing, providing, licensing, offering for
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`sale, and/or selling spouted pouches with a cap (“Accused Product”) in the United
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`States that are used to package food and beverages sold in retail stores throughout the
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`2
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`KSP EXHIBIT 1002
`Page 2 of 10
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`2:14-cv-14553-NGE-MKM Doc # 1 Filed 12/02/14 Pg 3 of 10 Pg ID 3
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`United States, including retail stores in Michigan located in this judicial district, that
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`Cheer Pack alleges infringe U.S. Patent No. 8,528,757. Defendant has in the past
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`and continues to cause harm to Cheer Pack in Michigan as a result of acts they have
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`and continue to commit both inside and outside of the state of Michigan. See Fed. R.
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`Civ. P. 4(h), MCL 600.715(2).
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`7.
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`Venue over Defendant is proper in this judicial district under 28
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`U.S.C. §§ 1391(c), 1391(d), and 1400(b).
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`FACTUAL BACKGROUND
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`8.
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`On April 13, 2009, U.S. Patent Application Serial No. 12/422,553
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`entitled “CAP FOR CONTAINER PROVIDED WITH GUARANTEE SEAL”
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`(“the ‘553 patent application”) was filed with the United States Patent and
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`Trademark Office (“Patent Office”) as a continuation of International Patent
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`Application no. PCT/IT2007/000426, filed on June 15, 2007.
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`9.
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`By way of assignment from the inventors, Guala Pack S.p.A.
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`(“Guala”) became the owner of the ‘553 patent application.
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`10. On September 10, 2009, the Patent Office published the ‘553 patent
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`application as U.S. Patent Application Publication No. 2009/0223963 (“the
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`published patent application”). A copy of the published patent application is
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`attached to this Complaint as Exhibit 1.
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`3
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`KSP EXHIBIT 1002
`Page 3 of 10
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`2:14-cv-14553-NGE-MKM Doc # 1 Filed 12/02/14 Pg 4 of 10 Pg ID 4
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`11. KSP and its customers had notice of the published patent application
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`as early as October 16, 2012.
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`12. On December 21, 2012, Guala sent a letter via fax and registered mail
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`to KSP’s corporate headquarters in South Korea, providing KSP with actual notice
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`and a copy of the published patent application. A copy of the December 21, 2012
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`letter is attached to this Complaint as Exhibit 2.
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`13. Guala informed KSP that it recently became aware of KSP’s making,
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`using, offering to sell in the United States, selling and/or importing in the United
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`States the Accused Product, including a “Choke Free Cap.” Guala informed KSP
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`that two types of the “Choke Free Cap” were covered by the pending claims of the
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`‘553 patent application and included in the published patent application.
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`14. Guala reached the conclusions set forth in the December 12, 2012
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`letter after studying samples of the Accused Product and leaflet brochures
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`distributed at KSP’s booth at the PackExpo International 2012 trade show held in
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`Chicago from October 28-31, 2012. Guala provided KSP with a copy of the leaflet
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`collected during the trade show and photographs of representative samples of the
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`Accused Product. Guala further provided a detailed claim chart showing that
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`independent claim 1 of the ‘553 patent application covered the Accused product.
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`Guala further informed KSP of its right to collect damages under 35 U.S.C. §
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`154(d).
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`4
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`KSP EXHIBIT 1002
`Page 4 of 10
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`2:14-cv-14553-NGE-MKM Doc # 1 Filed 12/02/14 Pg 5 of 10 Pg ID 5
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`15. On January 24, 2013, counsel for KSP (Darrell L. Pogue of Keohane
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`& D’Alessandro, PLLC) responded to Guala’s December 12, 2012 letter denying
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`that the KSP product(s) infringe upon Guala’s rights, either willfully or
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`unintentionally. A copy of the January 24, 2013 letter is attached to this Complaint
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`as Exhibit 3.
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`16. On September 10, 2013, the Patent Office issued U.S. Patent No.
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`8,528,757 entitled “CAP FOR CONTAINER PROVIDED WITH GUARANTEE
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`SEAL” (“the ‘757 patent”). A copy of the ‘757 patent is attached to this
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`Complaint as Exhibit 4.
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`17. The invention as claimed in the ‘757 patent is substantially identical
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`to the invention as claimed in the published patent application. By way of
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`example, claim 3 of the published patent application directly corresponds to claim
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`1 of the ‘757 patent.
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`18. Cheer Pack is a strategic partnership established in 2008 by Guala and
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`others to develop and support spouted pouch technology in North America.
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`19. Cheer Pack has become a leading manufacturer of flexible packaging
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`and pouch packaging products in the United States. Cheer Pack has made over one
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`billion pre-made spouted pouches with caps, and is on track to make more than 700
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`million pre-made spouted pouches with caps this year alone.
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`5
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`KSP EXHIBIT 1002
`Page 5 of 10
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`2:14-cv-14553-NGE-MKM Doc # 1 Filed 12/02/14 Pg 6 of 10 Pg ID 6
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`20. By way of agreement with Guala, Cheer Pack is the exclusive licensee
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`and holder of all substantial rights of the ‘757 patent, including the right to seek
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`and obtain all remedies available at law (including money damages) and in equity
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`for any past, present, and future infringement of the ‘757 patent.
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`21. Cheer Pack has and continues to give notice to the public that its
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`spouted pouches with caps are patented by marking these products with the ‘757
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`patent.
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`22. Cheer Pack has studied samples of the Accused Product, including
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`samples distributed by KSP at the PackExpo International 2014 trade show held in
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`Chicago from November 2-5, 2014. Cheer Pack has independently concluded that
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`the Accused Product is covered by the claims of the ‘757 patent.
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`23. By letter dated December 1, 2014, Cheer Pack provided KSP with
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`notice of infringement of the ‘757 patent. A copy of the December 1, 2014 letter is
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`attached to this Complaint as Exhibit 5.
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`COUNT I – INFRINGEMENT OF U.S. PATENT NO. 8,528,757
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`24. Cheer Pack restates the allegations contained in paragraphs 1-23.
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`25. On September 10, 2013, the Patent Office duly and lawfully issued
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`the ‘757 patent. Exhibit 4.
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`26. Defendant has in the past and is currently directly infringing the ‘757
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`patent under 35 U.S.C. § 271(a) by making, using, offering for sale, selling, or
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`6
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`KSP EXHIBIT 1002
`Page 6 of 10
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`2:14-cv-14553-NGE-MKM Doc # 1 Filed 12/02/14 Pg 7 of 10 Pg ID 7
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`importing into the United States without Cheer Pack’s authority, the Accused
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`Product that embodies one or more of the ‘757 patent claims.
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`27. By way of example and not limitation, Defendant has in the past and
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`is currently making, using, offering for sale and selling the Accused Product that
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`directly infringes at least claim 1 of the ‘757 patent, among other claims. See, e.g.,
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`Exhibit 6. Defendant was given actual notice of infringement of the ‘757 patent.
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`28. Defendant has in the past infringed the provisional rights for the
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`published patent application and ‘757 patent under 35 U.S.C. § 154(d) because
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`Defendant makes, uses, offers for sale, or sells in, or imports into, the United States
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`the invention as claimed in the published patent application. Defendant was given
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`actual notice of the published patent application; and the invention as claimed in
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`the ‘757 patent is substantially identical to the invention as claimed in the
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`published patent application.
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`29. Defendant’s infringing activities have been willful and deliberate.
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`30. Defendant’s infringing activities have and continue to directly and
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`proximately causing immediate and irreparable injury to Cheer Pack for which
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`Cheer Pack has no adequate remedy at law.
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`31. Defendant will continue its infringing activities unless enjoined from
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`doing so by the Court.
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`7
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`KSP EXHIBIT 1002
`Page 7 of 10
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`2:14-cv-14553-NGE-MKM Doc # 1 Filed 12/02/14 Pg 8 of 10 Pg ID 8
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`32. Defendant’s infringing activities have and continue to directly and
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`proximately cause damages to Cheer Pack.
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`PRAYER FOR RELIEF
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`WHEREFORE, Cheer Pack prays that this Court:
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`A.
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`Enter judgment for Cheer Pack against Defendant declaring that is has
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`willfully infringed U.S. Patent No. 8,528,757;
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`B.
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`Permanently enjoin and restrain Defendant, its agents, servants,
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`employees, partners, attorneys, successors and assigns, and all those acting in concert
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`with it, from infringing, either directly, by inducement or contribution, U.S. Patent
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`No. 8,528,757;
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`C.
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`Enter an Order requiring Defendant to file with this Court and to serve
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`upon Cheer Pack or Cheer Pack’s counsel, within thirty (30) days after the entry and
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`service of any injunction issued, a report in writing and under oath setting forth in
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`detail the manner and form in which they have complied with the injunction;
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`D. Require Defendant to post an appropriate bond and Order any other
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`appropriate relief to assure compliance with any injunctive provision or other
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`provision Ordered by the Court;
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`E.
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`Enter an Order directing Defendant, its agents, servants, employees,
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`partners, attorneys, successors and assigns, and all those acting in concert with it, to
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`8
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`KSP EXHIBIT 1002
`Page 8 of 10
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`2:14-cv-14553-NGE-MKM Doc # 1 Filed 12/02/14 Pg 9 of 10 Pg ID 9
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`deliver to this Court or to Cheer Pack for destruction, or show proof of said
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`destruction, of all infringing products;
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`F.
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`Order an equitable accounting to determine the profits of and other
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`sums Defendant has derived from the complained-of patent infringement and other
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`wrongful acts, and that such amount be paid over to Cheer Pack as an equitable
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`remedy;
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`G. Award to Cheer Pack all provisional damages resulting from the
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`Defendant’s patent infringement in accordance with 35 U.S.C. § 154(d);
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`H. Award to Cheer Pack all damages resulting from the Defendant’s
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`patent infringement and order that said damages be trebled in accordance with 35
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`U.S.C. § 284;
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`I.
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`Enter judgment declaring that this case is exceptional and that Cheer
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`Pack is entitled to recover its costs and reasonable attorney fees incurred in this
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`action, pursuant to 35 U.S.C. § 285; and
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`J.
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`Enter judgment granting such other and further relief and damages to
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`Cheer Pack as justice and equity may require.
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`JURY DEMAND
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`Cheer Pack North America LLC hereby requests a trial by jury of all issues
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`so triable.
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`9
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`KSP EXHIBIT 1002
`Page 9 of 10
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`2:14-cv-14553-NGE-MKM Doc # 1 Filed 12/02/14 Pg 10 of 10 Pg ID 10
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`Respectfully submitted,
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`DATED: December 2, 2014
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`19090531.1
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`s/David P. Utykanski
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`By:
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`HARNESS, DICKEY & PIERCE, PLC
`David P. Utykanski (P47029)
`5445 Corporate Drive, Suite 200
`Troy, Michigan 48098
`(248) 641-1400
`(248) 641-0270 (fax)
`Email: davidu@hdp.com
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`Attorneys for Plaintiff CHEER PACK
`NORTH AMERICA LLC
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`10
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`KSP EXHIBIT 1002
`Page 10 of 10
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