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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

OURPETS COMPANY
1300 East Street
Fairport Harbor, Ohio 44077,

Plaintiff,

PETMATE
2300 E. Randol Mill Road
Arlington, Texas 76011,

Defendant
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Civil Action No. 1:14-cv-02020

JUDGE DONALD C. NUGENT


JURY TRIAL DEMANDED

DEFENDANTS ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS TO
COMPLAINT FOR DESIGN PATENT INFRINGEMENT

Defendant, Doskocil Manufacturing Company, Inc. d/b/a Petmate (Petmate), by its
undersigned counsel, files this Answer, Affirmative Defenses and Counterclaims in response to
the Complaint for Design Patent Infringement (Complaint) filed on behalf of Plaintiff,
OurPets Company (OurPets) as follows:
THE PARTIES
1. Petmate lacks knowledge or information sufficient to form a belief as to the truth
of the allegations of Paragraph 1, and, therefore, denies the same.
2. Doskocil Manufacturing Company, Inc. d/b/a Petmate is a corporation organized
and existing under the laws of the State of Texas with its principal place of business at 2300 E.
Randol Mill Road, Arlington, TX 76011.
JURISDICTION AND VENUE
3. Petmate admits that the Complaint purports to allege an action for patent
infringement under the patent laws of the United States. Petmate further admits that subject
matter jurisdiction is properly based on 28 U.S.C. 1331, 1338, and 35 U.S.C. 281.
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4. Petmate admits that this action is between citizens of different states. The balance
of the allegations of Paragraph 4 are denied.
5. The allegations of Paragraph 5 are conclusions of law to which no response is
required. To the extent a response is required, the allegations of Paragraph 5 are denied.
6. The allegations of Paragraph 6 are conclusions of law to which no response is
required. To the extent a response is required, the allegations of Paragraph 6 are denied.
7. The allegations of Paragraph 7 are conclusions of law to which no response is
required. To the extent a response is required, the allegations of Paragraph 7 are denied. It is
further denied Petmate supplies any infringing dog bowls that are sold within the state of Ohio.
8. The allegations of Paragraph 8 are conclusions of law to which no response is
required. To the extent a response is required, the allegations of Paragraph 8 are denied.
FACTUAL ALLEGATIONS
9. Petmate lacks knowledge or information sufficient to form a believe as to the
truth of the allegations of Paragraph 9 and, therefore, denies the same.
10. Petmate lacks knowledge or information sufficient to form a believe as to the
truth of the allegations of Paragraph 10 and, therefore, denies the same.
11. Petmate lacks knowledge or information sufficient to form a believe as to the
truth of the allegations of Paragraph 11 and, therefore, denies the same.
12. Petmate lacks knowledge or information sufficient to form a believe as to the
truth of the allegations of Paragraph 12 and, therefore, denies the same.
13. Petmate lacks knowledge or information sufficient to form a believe as to the
truth of the allegations of Paragraph 13 and, therefore, denies the same.
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14. Petmate lacks knowledge or information sufficient to form a believe as to the
truth of the allegations of Paragraph 14 and, therefore, denies the same.
15. Petmate admits that a copy of United States Design Patent No. D467,045
(hereinafter referred to the 045 Patent) is attached to the Complaint and further admits that the
045 Patent identifies Steven Tsengas as the Inventor. As to the remaining allegations of
Paragraph 15, Petmate denies the same.
16. Petmate lacks knowledge or information sufficient to form a belief to the truth of
the allegations of Paragraph 16 and, therefore, denies the same.
17. Petmate lacks knowledge or information sufficient to form a belief to the truth of
the allegations of Paragraph 17 and, therefore, denies the same.
18. Petmate lacks knowledge or information sufficient to form a belief to the truth of
the allegations of Paragraph 18 and, therefore, denies the same.
19. Petmate lacks knowledge or information sufficient to form a belief to the truth of
the allegations of Paragraph 19 and, therefore, denies the same.
20. Petmate denies the allegations of Paragraph 20.
21. Petmate denies the allegations of Paragraph 21.
22. Petmate denies the allegations of Paragraph 22.
23. Petmate denies the allegations of Paragraph 23.
24. Petmate denies that it sells any infringing products and further denies that it
infringes any patent allegedly owned by OurPets. Petmate lacks knowledge or information
sufficient to form a belief as to the proof of the remaining allegations of Paragraph 24 and
therefore, denies the same.
25. Petmate denies the allegations of Paragraph 25.
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ANSWER TO CLAIM NO. I
(PATENT INFRINGEMENT 35 U.S.C. 271)
26. Petmate realleges and incorporates by reference the preceding responses to the
allegations contained in the Complaint.
27. Petmate denies the allegations of Paragraph 27.
28. Petmate denies the allegations of Paragraph 28.
29. Petmate denies the allegations of Paragraph 29.
30. Petmate denies the allegations of Paragraph 30.
31. Petmate denies the allegations of Paragraph 31.
32. Petmate denies the allegations of Paragraph 32.
33. Petmate denies the allegations of Paragraph 33.
34. Petmate denies the allegations of Paragraph 34.
PRAYER FOR RELIEF/REQUEST FOR REMEDIES
Petmate denies that OurPets is entitled to any relief whatsoever, including the relief
requested in its Complaint and requests that the Complaint be dismissed with prejudice and
judgment be entered in favor of Petmate and against OurPets in this proceeding.
AFFIRMATIVE DEFENSES
Petmate asserts the following Affirmative Defenses to the causes of action asserted in
OurPets Complaint undertaking to prove only those defenses upon which it bears the burden of
proof under applicable law.

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FIRST AFFIRMATIVE DEFENSE
35. OurPets Complaint fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
36. Petmates making, using, offering for sale and/or selling the Petmate iTalia
product line has not and does not directly or indirectly infringe any valid and enforceable claim
of the 045 Patent either literally, contributorily or by inducement or under the Doctrine of
Equivalents.
THIRD AFFIRMATIVE DEFENSE
37. The 045 Patent and each claim thereof is invalid for failing to satisfy one or more
requirements of the Patent Act, 35 U.S.C. 1 et seq., including, but not limited to, the statutory
and/or decisional requirements of patentability set forth in 35 U.S.C. 101, 102, 103 and/or 112
and/or 282.
FOURTH AFFIRMATIVE DEFENSE
38. OurPets is or may be estopped from asserting that Petmate infringes any valid
claim of the 045 Patent for reasons, including, but not limited to, prosecution history estoppel
and positions taken and arguments made to the United States Patent and Trademark Office.
FIFTH AFFIRMATIVE DEFENSE
39. OurPets claims are barred in whole or in part based on settlement, accord and
satisfaction in a previous action filed in this Court at 1:13-cv-00111.

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SIXTH AFFIRMATIVE DEFENSE
40. OurPets claims for relief are barred in whole or in part by the Doctrines of
Acquiescence, Estoppel, Laches, Waiver, Prosecution Laches and/or other applicable equitable
doctrines.
SEVENTH AFFIRMATIVE DEFENSE
41. OurPets claims for relief are barred in whole or in part due to the Doctrine of
Unclean Hands.
EIGHTH AFFIRMATIVE DEFENSE
42. OurPets claims for damages, if any, against Petmate for alleged infringement of
the 045 Patent is limited by 35 U.S.C. 286, 287 and 288.
NINTH AFFIRMATIVE DEFENSE
43. OurPets claims for relief are barred in whole or in part due to the Doctrine of
Misuse of Patent.
Petmate reserves the right to add to, amend or withdraw its Affirmative Defenses if
further investigation and discovery so dictates.
WHEREFORE, Petmate demands judgment in its favor and against OurPets dismissing
all claims of the Complaint with Prejudice.

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COUNTERCLAIMS
Petmate asserts the following Counterclaims against OurPets:
NATURE OF THE ACTION
1. This is an action for declaratory judgment pursuant to the Federal Declaratory
Act, 28 U.S.C. 2201 and 2202. Petmate seeks a declaratory judgment that the claim of the
045 Patent is not infringed by Petmate and/or is invalid under one or more of the provisions of
35 U.S.C. 101, 102, 103 and 112. Petmate also seeks a declaratory judgment that the claim of
the 045 Patent is unenforceable due to OurPets misuse of the 045 Patent and that this action is
barred by the terms of a settlement agreement, release and covenant not to sue entered into by
Petmate and OurPets which agreement has been breached by the commencement of this action
by OurPets. An actual controversy over the infringement, validity and enforceability of the 045
Patent exists between Petmate and OurPets as evidenced by the allegations of OurPets
Complaint and Petmates Answer and Affirmative Defenses thereto.
THE PARTIES
2. Petmate is a corporation organized and existing under the laws of the State of
Texas with its principal place of business at 2300 Randol Mill Road, Arlington, Texas 76011.
3. OurPets alleges that it is a corporation organized and existing under the laws of
the State of Colorado with its principal place of business at 1300 East Street, Fairport Harbor,
Ohio 44077.
JURISDICTION AND VENUE
4. Petmates Counterclaims arise under the Patent Laws of the United States, 35
U.S.C. 1, et seq. and the Federal Declaratory Judgment Act, 28 U.S.C. 2201 and 2202.
This Court has jurisdiction over the subject matter under 28 U.S.C. 1331 and 1338(a) as well
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as under 28 U.S.C. 1332 because the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between citizens of different states.
5. This Court has personal jurisdiction over OurPets because OurPets has
purposely availed itself of the benefits and protection of this jurisdiction by filing its Complaint
in this judicial district.
6. Venue is proper in this Judicial District under 28 U.S.C. 1391.
FACTS COMMON TO ALL COUNTS
7. Petmate realleges and incorporates Paragraphs 1 through 6 of these Counterclaims
as if set forth herein.
8. OurPets has engaged in a pattern and practice of unfair competition by
commencing numerous patent infringement actions against its competitors, including Petmate,
alleging that such competitors competing products infringe one or more of OurPets patents on
pet feeder products.
9. During the past ten (10) years or so, OurPets has filed numerous pet feeder patent
infringement actions against its competitors using virtually the same form complaint prepared
and filed by the same law firm which represents OurPets in this action.
10. This action represents the third time OurPets has sued Petmate alleging
infringement of the 045 Patent based on double bowl dog feeders which have vastly different
design characteristics with the exception that they all have two functional (2) feeding bowls.
11. On January 16, 2013, OurPets filed an action against Petmate in this Court styled
OurPets Company v. Petmate, at Civil Action No. 1:13-cv-000111-50, (the 2013 Action)
alleging infringement of the 045 Patent based upon a Petmate dog feeder called the Easy Reach
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Diner dog feeder, a true and accurate copy of a photograph of which is attached hereto as
Exhibit A.
12. The 2013 Action was settled pursuant to a stipulation of dismissal and Settlement
Agreement and Mutual Release which, included a covenant not to sue Petmate for patent
infringement of the 045 Patent for any elevated double bowl pet feeders from the effective date
of the Agreement until the expiration of the 045 Patent. The Settlement Agreement and Mutual
Release is not attached hereto due to confidentiality provisions contained therein, but will be
made available to the court under seal.
13. Paragraph 3 of the Settlement Agreement and Mutual Release provides as
follows:
Covenants of OurPets. OurPets covenants and warrants that
from the effective date of this Agreement until the expiration of the
045 Patent, OurPets will not file any lawsuit or otherwise initiate
any proceeding against Petmate alleging infringement of any
patent by the Accused Feeder, including, but not limited to, the
045 Patent, and will not encourage or assist others to do so.
Should OurPets ever assert the 045 Patent against Petmate at any
time in the future, Petmate retains all defenses and rights supported
by the patent laws of the United States including, but not limited
to, the defenses of invalidity and unenforceability.
14. The term Accused Feeder is defined in the Settlement Agreement and Mutual
Release as:
certain elevated double bowl pet feeders under the name Easy
Reach Diner or such other names as may be designated by
Petmate . . ., . . .

15. Notwithstanding the aforementioned covenant not to sue, on January 15, 2014,
OurPets commenced a second action against Petmate in this Court styled OurPets Company v.
Doskocil Manufacturing Co. d/b/a Petmate, at Civil Action No. 1:14-cv-00091 (the First 2014
Action), alleging that a Bowl Mates elevated double bowl pet feeder infringed the 045
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Patent. A true and accurate copy of a photo of the alleged infringing Bowl Mates elevated dog
feeder is attached hereto as Exhibit B. The First 2014 Action was later voluntarily dismissed
when Petmate advised OurPets that Petmate did not make or sell the Bowl Mates elevated dog
feeder.
16. As can be seen from a comparison of the Easy Reach Diner elevated double
bowl dog feeder (Exhibit A hereto), and the Bowl Mates elevated dog feeder (Exhibit B
hereto) to each other and a comparison to the Stackable Pet Feeder depicted in the 045 Patent,
they are easily distinguished from each other and both are easily distinguishable from the design,
of the Stackable Pet Feeder shown in the 045 Patent.
17. OurPets has now commenced the instant action against Petmate (the Second
2014 Action) using the same form complaint alleging that the Petmate Italia dog feeder
infringes the 045 Patent. A true and accurate photograph of the Accused Feeder in this Second
2014 Action sold under the name Italia designated by Petmate is attached hereto as Exhibit
C.
18. A cursory review of the Italia Accused Feeder as compared to the Stackable Pet
Feeder depicted in the 045 Patent reveals that the Italia Accused Feeder bears no
resemblance to the Stackable Pet Feeder depicted in the 045 Patent.
19. The commencement of this Second 2014 Action by OurPets is in direct
contravention and breach of the covenant not to sue Petmate for alleged infringement of the 045
Patent.
20. OurPets has intentionally and improperly expanded the scope of the design claim
of the 045 Patent for the purpose of forcing competitors to agree to pay royalties to OurPets or
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cease making and selling competing products, all for the purpose of unfairly using its patents,
including the 045 Patent, to stifle competition.
21. OurPets has impermissibly broadened the scope of the 045 Patent for the
purpose of unfairly competing in the dog feeder market.
22. OurPets seeks to use its patents, including the 045 Patent, to obtain a market
benefit beyond that which properly inheres in the statutory patent right granted to OurPets as the
patentee of the 045 Patent.
COUNT I
DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE 045 PATENT

23. Petmate realleges and incorporates Paragraphs 1 through 22 of these
Counterclaims as if fully set forth herein.
24. An actual and judiciable controversy exists between Petmate and OurPets as to
whether the claims of the 045 Patent are infringed by Petmate
25. Petmate has not infringed, nor is it infringing, any claim of the 045 Patent, either
by direct or contributory infringement. Petmate has not induced and does not induce the
infringement of any claim of the 045 Patent.
COUNT II
DECLARATORY JUDGMENT OF INVALIDITY OF THE 045 PATENT

26. Petmate realleges and incorporates Paragraphs 1 through 25 of these
Counterclaims as if fully set forth herein.
27. An actual and justiciable controversy exists between Petmate and OurPets as to
the validity of the 045 Patent.
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28. The claim of the 045 Patent is invalid and unenforceable for failure to satisfy one
or more of the requirements for patentability under Title 35 of the United States Code, including
the respective provisions of 101, 102, 103 and 112.
COUNT III
DECLARATORY JUDGMENT OF UNENFORCEABILITY OF THE 045 PATENT
29. Petmate realleges and incorporates Paragraphs 1 through 28 of these
Counterclaims as if fully set forth herein.
30. An actual and justiciable controversy exists between Petmate and OurPets as to
the enforceability of the 045 Patent.
31. The claim of the 045 Patent is unenforceable as a consequence of OurPets
improper misuse of the 045 Patent to improperly stifle competition and unfairly compete with
Petmate in the pet feeder market.
COUNT IV
BREACH OF CONTRACT
32. Petmate realleges and incorporates Paragraphs 1 through 31 of these
Counterclaims as if fully set forth herein.
33. The Settlement Agreement and Mutual Release is a valid and legally binding
agreement that was entered into on or about July 24, 2013 by Petmate and OurPets.
34. Pursuant to the Settlement Agreement and Mutual Release, Petmate paid the
stated settlement amount to OurPets.
35. In consideration of the payment of the settlement amount, OurPets agreed to
discontinue with prejudice the 2013 Action, release Petmate from all claims asserted or which
could have been asserted in the 2013 Action and covenanted not to sue Petmate as set forth
above in Paragraphs 13 and 14.
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36. Petmate has performed all conditions, covenants and promises required by it on
its part to be performed in accordance with the terms and conditions of the Settlement
Agreement and Mutual Release.
37. The commencement of this action by OurPets constitutes a breach of the
Settlement Agreement and Mutual Release.
38. As the proximate result of the breach of the Settlement Agreement and Mutual
Release by OurPets, Petmate has suffered damages in the amount of the settlement amount,
being the consideration paid by Petmate to OurPets for the release and covenant not to sue.
REQUEST FOR RELIEF
Petmate respectfully requests that this Court grant the following relief:
A. Dismiss the Complaint for Design Patent Infringement with prejudice;

B. Declare that OurPets recovers nothing from Petmate;

C. Declare that Petmate has not infringed, either directly or indirectly, and is
not infringing, either directly or indirectly any valid and enforceable claim
of the 045 Patent;

D. Declare that the 045 Patent is invalid;

E. Declare that the 045 Patent is unenforceable due to OurPets misuse of
the 045 Patent;

F. Enjoin OurPets and its representatives, and any successors and assigns
thereof, from charging or asserting infringement of any claim of the 045
Patent against Petmate or any person or entity in privity with Petmate;

G. Declare that this is an exceptional case under 35 U.S.C. 285;

H. Award Petmate its damages for OurPets breach of the covenant not to
sue.

I. Award Petmate its costs, disbursements and reasonable attorneys fees
(including expert fees), incurred in this action; and

J. Award such other and further relief as the Court deems just and proper.
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JURY DEMAND
Petmate hereby demands a trial by jury on all issues triable by right of Jury.
Dated: October 2, 2014 Respectfully Submitted,
CALFEE HALTER & GRISWOLD, LLP
By: /s/ Addisah Sherwood
ADDISAH SHERWOOD (0084399)
asherwood@calfee.com
TRACY SCOTT JOHNSON (0064579)
tjohnson@calfee.com
The Calfee Building
1405 East Sixth Street
Cleveland, Ohio 44114
Telephone: 216-622-8245
Facsimile: 216-241-0816

ECKERT SEAMANS CHERIN & MELLOTT, LLC
By: /s/ Mark Willard
Mark A. Willard, Esquire
PA ID No. 18103
mwillard@eckertseamans.com
David V. Radack, Esquire
PA ID No. 39633
dradack@eckertseamans.com

600 Grant Street, 44
th
Floor
Pittsburgh, PA 15219
Telephone: 412-566-6000
Facsimile: 412-566-6099
Attorneys for Defendant,
Doskocil Manufacturing Company, Inc.
d/b/a Petmate
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Answer, Affirmative Defenses and
Counterclaims to Plaintiffs Complaint for Design Patent Infringement has been served
electronically, by operation of this Courts CM/ECF System, upon the parties of record this 2nd
day of October, 2014.
C. Vincent Choken
David A. Welling
Choken Welling, LLP
3020 West Market Street
Akron, Ohio 44333

John D. Gugliotta, Esq.
Patent, Copyright & Trademark Law Group, LLC
4199 Kinross Lake Parkway, Suite 275
Richfield, Ohio 44286
Attorneys for Plaintiff


By: /s/Addisah Sherwood
Addisah D. Sherwood

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