Case 2:15-cv-08946-GW-AJW Document 1 Filed 11/17/15 Page 1 of 7 Page ID #:1
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`Philip Maltin (State Bar No. 153606)
`pmaltin@lathropgage.com
`LATHROP & GAGE LLP
`1888 Century Park East, Suite 1000
`Los Angeles, CA 90067
`Tel: (310) 789-4600
`Fax: (310) 789-4601
`
`R. Cameron Garrison (pro hac vice application to be filed)
`cgarrison@lathropgage.com
`LATHROP & GAGE LLP
`Kansas City, MO 64108
`Tel: (816) 292-2000
`Fax: (816) 292-2001
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`
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`Attorneys for Plaintiff THE ERGO BABY CARRIER, INC.
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`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
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`THE ERGO BABY CARRIER, INC.,
`Case No.
`Plaintiff,
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`COMPLAINT FOR PATENT
`INFRINGEMENT
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`DEMAND FOR JURY TRIAL
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`COMPLAINT
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`vs.
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`BOBA INC.,
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`Defendant.
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`Petitioner Ex. 1023 Page 1
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`Case 2:15-cv-08946-GW-AJW Document 1 Filed 11/17/15 Page 2 of 7 Page ID #:2
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`Plaintiff The ERGO Baby Carrier, Inc. (“Plaintiff” or “Ergobaby”) hereby
`alleges against Defendant Boba Inc. (“Defendant” or “Boba”) as follows:
`THE PARTIES
`1.
`Ergobaby is a Hawaii corporation with its principal place of business
`at 617 West 7th Street, Suite 1000, Los Angeles, California 90017, which is within
`the Central District of California. Ergobaby is, and at all times mentioned herein
`has been, qualified to do business in the State of California.
`2.
`Ergobaby is informed, and on that basis alleges, that Defendant Boba
`is a corporation duly organized and existing under the laws of the State of
`Wyoming with its principal place of business at 1712 Pioneer Avenue, Suite 5580,
`Cheyenne, Wyoming 82001.
`JURISDICTION AND VENUE
`3.
`This action arises under the patent laws of the United States, 35 U.S.C.
`§§ 271, 281, 283–285. This Court has jurisdiction over the subject matter of this
`action pursuant to 28 U.S.C. §§ 1331 and 1338(a).
`4.
`Boba is subject to personal jurisdiction in this District and subject to
`this Court’s specific and general jurisdiction, pursuant to due process and/or the
`California Long-Arm Statute, Cal. Civ. Proc. Code § 410.10, on the grounds that
`Boba has committed acts of patent infringement in this District and the State of
`California, and regularly conducts and/or solicits business, engages in other
`persistent courses of conduct, and/or derives substantial revenue from the sale of
`goods to persons or entities in this District. These contacts include providing a
`website with advertisements and information regarding the accused baby carriers,
`as well as an extensive list of, and links to, its retail partners where consumers may
`purchase such products. Many of these retailers are located in this District.
`5.
`Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) and
`(c) and 1400 because a substantial part of the events or omissions giving rise to the
`claims asserted herein occurred in this District, including the commission by Boba
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`Petitioner Ex. 1023 Page 2
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`Case 2:15-cv-08946-GW-AJW Document 1 Filed 11/17/15 Page 3 of 7 Page ID #:3
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`of acts of patent infringement in this District, and because Boba is subject to
`personal jurisdiction in this District.
`FACTUAL BACKGROUND
`6.
`Ergobaby is a leading, premium baby consumer products company that
`is headquartered in Los Angeles, California, and specializes in creating innovative
`and ergonomic baby carrier products, as well as carrier accessories, swaddlers and
`other baby products, designed to meet the needs of today’s parents. Ergobaby’s
`products are sold in more than 700 retailers throughout the United States and in
`over 50 countries worldwide.
`7.
`Ergobaby is the legal owner of U.S. Patents 8,590,757 (the “‘757
`Patent”) and 9,022,260 (the “‘260 Patent”) (collectively, the “Ergobaby Patents”),
`which are directed to, among other things, a lightweight child carrier that can be
`mounted upon the front or back of a wearer’s torso.
`8.
`Boba also is a baby consumer products company that makes, uses,
`offers to sell, sells, and/or imports various baby carrier products and accessories,
`including lines of baby carriers advertised under the names “Boba 4G” and “Boba
`Air” (collectively, the “Boba Carriers”).
`9.
`This lawsuit arises out of Boba’s manufacture, use, offer to sell, sale,
`and/or importation of the Boba Carriers, which infringe one or more claims of each
`of the Ergobaby Patents.
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`COUNT I
`(INFRINGEMENT OF U.S. PATENT NO. 8,590,757)
`10. Ergobaby incorporates by reference all previous allegations as though
`fully set forth herein.
`11. On November 26, 2013, the United States Patent and Trademark
`Office (the “PTO”) duly and legally issued the ‘757 Patent, titled BABY
`CARRIER, to Karin A. Frost. The ‘757 Patent is directed to, among other things, a
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`Case 2:15-cv-08946-GW-AJW Document 1 Filed 11/17/15 Page 4 of 7 Page ID #:4
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`lightweight child carrier that can be mounted upon the front or back of a wearer’s
`torso.
`12. Ergobaby owns by assignment all right, title, and interest in and to the
`‘757 Patent, including full rights to recover for past and future damages thereunder
`and to seek injunctive relief against infringing parties. A copy of the ‘757 Patent is
`attached hereto as Exhibit A.
`13. Ergobaby has complied with the marking requirements of 35 U.S.C. §
`287 with respect to the ‘757 Patent, to the extent necessary and applicable.
`14. Boba is infringing and has infringed one or more claims of the ‘757
`Patent under 35 U.S.C. § 271, literally and/or under the doctrine of equivalents.
`15. Boba’s infringing acts include, without limitation: making, using,
`offering to sell, selling, and/or importing the Boba Carriers that embody at least one
`claim of the ‘757 Patent. Boba’s infringement may include additional products or
`carriers that incorporate aspects and/or features of the Boba Carriers, which will be
`determined through discovery in this matter.
`16. Boba also has knowingly, intentionally, and actively aided, abetted,
`and/or induced others to infringe the ‘757 Patent through its customers, users,
`business partners, and retail partners in this judicial District and throughout the
`United States.
`17. Boba’s infringing acts are without license or authorization from
`Ergobaby.
`18. Boba’s infringing acts, undertaken with knowledge of the ‘757 Patent,
`are reckless, without objective basis, and willful.
`19. As a direct and proximate result of Boba’s infringement of the ‘757
`Patent, Ergobaby has suffered and will continue to suffer injury for which it is
`entitled to damages under 35 U.S.C. § 284 adequate to compensate it for such
`infringement in an amount to be proven at trial, but in no event less than a
`reasonable royalty.
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`Petitioner Ex. 1023 Page 4
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`Case 2:15-cv-08946-GW-AJW Document 1 Filed 11/17/15 Page 5 of 7 Page ID #:5
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`20. Unless Boba is permanently enjoined from further infringement of the
`‘757 Patent, Ergobaby will continue to suffer irreparable harm and impairment of
`the value of its patent rights for which there is no adequate remedy at law.
`COUNT II
`(INFRINGEMENT OF U.S. PATENT NO. 9,022,260)
`21. Ergobaby incorporates by reference all previous allegations as though
`fully set forth herein.
`22. On May 5, 2015, the PTO duly and legally issued the ‘260 Patent,
`titled BABY CARRIER, to Karin A. Frost. The ‘260 Patent is a continuation of the
`‘757 Patent and is directed to, among other things, a lightweight child carrier that
`can be mounted upon the front or back of a wearer’s torso.
`23. Ergobaby owns by assignment all right, title, and interest in and to the
`‘260 Patent, including full rights to recover for past and future damages thereunder
`and to seek injunctive relief against infringing parties. A copy of the ‘260 Patent is
`attached hereto as Exhibit B.
`24. Ergobaby has complied with the marking requirements of 35 U.S.C. §
`287 with respect to the ‘260 Patent, to the extent necessary and applicable.
`25. Boba is infringing or has infringed one or more claims of the ‘260
`Patent under 35 U.S.C. § 271, literally and/or under the doctrine of equivalents.
`26. Boba’s infringing acts include, without limitation: making, using,
`offering to sell, selling, and/or importing the Boba Carriers that embody at least one
`claim of the ‘260 Patent. Boba’s infringement may include additional products or
`carriers that incorporate aspects and/or features of the Boba Carriers, which will be
`determined through discovery in this matter.
`27. Boba also has knowingly, intentionally, and actively aided, abetted,
`and/or induced others to infringe the ‘260 Patent through its customers, users,
`business partners, and retail partners in this judicial District and throughout the
`United States.
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`Case 2:15-cv-08946-GW-AJW Document 1 Filed 11/17/15 Page 6 of 7 Page ID #:6
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`28. Boba’s infringing acts are without license or authorization from
`Ergobaby.
`29. Boba’s infringing acts, undertaken with knowledge of the ‘260 Patent,
`are reckless, without objective basis, and willful.
`30. As a direct and proximate result of Boba’s infringement of the ‘260
`Patent, Ergobaby has suffered and will continue to suffer injury for which it is
`entitled to damages under 35 U.S.C. § 284 adequate to compensate it for such
`infringement in an amount to be proven at trial, but in no event less than a
`reasonable royalty.
`31. Unless Boba is permanently enjoined from further infringement of the
`‘260 Patent, Ergobaby will continue to suffer irreparable harm and impairment of
`the value of its patent rights for which there is no adequate remedy at law.
`PRAYER FOR RELIEF
`WHEREFORE, Plaintiff The ERGO Baby Carrier, Inc. respectfully prays for
`entry of judgment against Defendant Boba Inc. as follows:
`A. A judgment that Boba has infringed one or more of the claims of each
`of the Ergobaby Patents directly (either literally or under the doctrine of
`equivalents) or indirectly;
`B. A preliminary and permanent injunction restraining Boba, its officers,
`directors, employees, agents, representatives, parent companies, subsidiaries, and
`affiliates, and all persons acting in active concert or participation therewith, from
`engaging in any continued infringement of the Ergobaby Patents;
`C. An award of all damages to which Ergobaby is entitled under 35
`U.S.C. § 284 for all past and continuing infringement, including but not limited to
`all lost profits and/or reasonable royalties, and an order requiring a full accounting
`of the same;
`D.
`Enhanced damages in accordance with the provisions of 35 U.S.C. §
`285 as a result of Boba’s knowing and willful infringement;
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`Case 2:15-cv-08946-GW-AJW Document 1 Filed 11/17/15 Page 7 of 7 Page ID #:7
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`A finding that this case is exceptional under 35 U.S.C. § 285 and an
`E.
`award of all attorney fees incurred by Ergobaby in this action;
`F.
`An assessment of interest, both pre- and post-judgment, on the
`damages awarded;
`G. An accounting of all goods in the possession, custody, or control of
`Boba that infringe either of the Ergobaby Patents and an Order directing that all
`such goods be delivered up and destroyed within forty-five (45) days from the entry
`of final judgment;
`H. An award of costs incurred by Ergobaby in bringing and prosecuting
`this action; and
`I.
`Any such other and further relief as the Court deems just and proper.
`DEMAND FOR JURY TRIAL
`Pursuant to Fed. R. Civ. P. 38(b), Ergobaby hereby demands a jury trial on
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`all issues so triable.
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`DATED: November 17, 2015
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`LATHROP & GAGE LLP
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`By: s/ Philip Maltin
`Philip Maltin
`Attorney for Plaintiff
`THE ERGO BABY CARRIER, INC.
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