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Case 2:16-cv-01672 Document 1 Filed 03/11/16 Page 1 of 20 Page ID #:1

1 ATKINSON, ANDELSON, LOYA, RUUD & ROMO


A Professional Corporation
2 Aaron S. Craig
State Bar No. 204741
acraig@aalrr.com
3 Komal J. Mehta
State Bar No. 265334
kmehta@aalrr.com
4 12800 Center Court Drive South, Suite 300
Cerritos, California 90703-9364
5 Telephone: (562) 653-3200
Fax: (562) 653-3333
6
Attorneys for Plaintiff
7 BOILING POINT GROUP, INC.

A PROFESSIONAL CORPO RATION


ATTORNEYS AT LAW
12800 CENTER COURT DRIVE SOUTH, SUITE 300
CERRITOS, CAL IFORNIA 90703-9364
TELEPHONE: (562) 653- 3200
FAX: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8
9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA LOS ANGELES

11 BOILING POINT GROUP, INC. ,


Plaintiff,

12

COMPLAINT FOR
INFRINGEMENT OF UNITED
STATES DESIGN PATENT NO.
D680811

13 v.
14 FONG WARE CO. LTD,
Defendant.

15

Case No.

DEMAND FOR JURY TRIAL

16
17
18

Plaintiff Boiling Point Group, Inc., a California corporation (Plaintiff or

19 BPG), for its complaint against Fong Ware Co. LTD, (Defendant) hereby
20 demands a jury trial and alleges as follows:
I. INTRODUCTION

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1.

This is a civil action for infringement of United States Patent No.

23 D680811 (the 811 Patent) under the patent laws of the United States, 35 U.S.C.
24 1 et seq. A true and correct copy of the 811 Patent is attached hereto as Exhibit
25 1.
II. JURISDICTION AND VENUE

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2.

This Court has original subject matter jurisdiction over the design

28 patent infringement claim in this action pursuant to 35 U.S.C. 271 and 281 and
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1 28 U.S.C. 1331 and 1338 as these claims arise under the laws of the United
2 States.
3

3.

This Court has personal jurisdiction over Defendant because Defendant

4 is a resident of this judicial district. Furthermore the Defendant has a continuous,


5 systematic, and substantial presence within this judicial district including by
6 regularly doing and soliciting business and deriving revenue from goods provided to
7 individuals and/or businesses in this judicial district, including but not limited to
9 Apparatus), directly to consumers and/or businesses in this district and selling into
10 the stream of commerce knowing the infringing Fong Ware Apparatus would be
11 sold in California and in this district, which acts form a substantial part of the events

A PROFESSIONAL CORPO RATION


ATTORNEYS AT LAW
12800 CENTER COURT DRIVE SOUTH, SUITE 300
CERRITOS, CAL IFORNIA 90703-9364
TELEPHONE: (562) 653- 3200
FAX: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8 selling infringing hot pot apparatuses Model No. FW-1308 (Fong Ware

12 giving rise to Plaintiffs claim.


13

4.

Venue is proper in this judicial district under 28 U.S.C. 1391 (b),

14 1391(d), and 1400(b).


15
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III. THE PARTIES


5.

Plaintiff Boiling Point Group, Inc. is a corporation organized and

17 existing under the laws of the State of California, having its principal place of
18 business at 13668 Valley Blvd. #C-2, City of Industry, CA 91746.
19

6.

Plaintiff is informed and believes, and thereon alleges, that Defendant

20 Fong Ware Co. LTD is a suspended corporation organized and existing under the
21 laws of the State of California, having its principal place of business at 6849
22 Morehouse St., Chino, CA 91710.
23

7.

Plaintiff is informed and believes, and thereon alleges that the

24 Defendant regularly conducts business in, and has committed the acts alleged herein
25 within this judicial district.
26
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IV. FACTUAL BACKGROUND


8.

Plaintiff is the owner of a number of well-known Taiwanese Style Hot

28 Soup specialty restaurants, under the name Boiling Point, that started in Southern
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COMPLAINT FOR INFRINGEMENT OF UNITED STATES DESIGN PATENT NO.


D680811

Case 2:16-cv-01672 Document 1 Filed 03/11/16 Page 3 of 20 Page ID #:3

1 California. Plaintiff currently has twenty-one (21) locations throughout California,


2 Washington, Canada, and China.
3

9.

Since its founding in 2004, Plaintiff has developed a reputation for

4 providing high quality food and innovative customer service. The Boiling Point
5 experience includes Plaintiffs patented apparatus for holding and heating a hot pot
6 (BPG Apparatus). The BPG Apparatus is a crucial component of Plaintiffs
7 operations and is placed at every seat in its restaurants.
10.

On April 30, 2013, the United States Patent and Trademark Office duly

9 and lawfully issued United States Design Patent No. D680,811 (the 811 Patent),
10 entitled Apparatus for Holding and Heating a Hot Pot, for the design embodied in
11 the BPG Apparatus. The 811 Patent names Chi How Chou as the inventor.

A PROFESSIONAL CORPO RATION


ATTORNEYS AT LAW
12800 CENTER COURT DRIVE SOUTH, SUITE 300
CERRITOS, CAL IFORNIA 90703-9364
TELEPHONE: (562) 653- 3200
FAX: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

12

11.

Plaintiff is the owner by assignment of all right, title, and interest in the

13 811 Patent. There are no prior owners by assignment. A true and correct copy of
14 the 811 Patent Assignment Abstract of Title is attached hereto as Exhibit 2.
15

12.

The 811 Patent describes an ornamental design for an apparatus for

16 holding and heating a hot pot.


17

13.

The 811 Patent represents a substantial advance over the prior art.

18

14.

Defendant manufactures, uses, sells, offers for sale, and/or imports into

19 the United States, the Fong Ware Apparatus that infringes on the 811 Patent.
20

15.

Plaintiff has provided the public and the Defendant with notice of its

21 patent rights pursuant to 35 U.S.C. 287 and by marking the BPG Apparatus with
22 the 811 Patent. Furthermore Plaintiffs website prominently displays information
23 regarding the 811 Patent.
24

V. FIRST CLAIM FOR RELIEF

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(Patent Infringement)

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(35 U.S.C. 271)

27

16.

Plaintiff hereby incorporates by reference the allegations in paragraphs

28 1-16 of this Complaint as if set forth fully herein.


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17.

This is a claim for patent infringement under 35 U.S.C. 271.

18.

Defendant, through its employees, agents, and/or servants, has and

3 continues to, knowingly, intentionally, and willfully directly infringe the 811 Patent
4 by making, using, selling, offering for sale, and/or importing the Fong Ware
5 Apparatus having a design that would deceive an ordinary observer familiar with the
6 prior art into believing that it is the same as the design patented in the 811 Patent.
7 The infringing Fong Ware Apparatus, which was sold and/or offered for sale by the
9

19.

First, the 811 Patent features a square top with a raised rim, as shown

10 below. The design of a raised rim around the top perimeter of the generally square
11 body is a distinguishing feature. As shown below, the Defendants infringing Fong

A PROFESSIONAL CORPO RATION


ATTORNEYS AT LAW
12800 CENTER COURT DRIVE SOUTH, SUITE 300
CERRITOS, CAL IFORNIA 90703-9364
TELEPHONE: (562) 653- 3200
FAX: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8 Defendant, shares at least six distinguishing features with the 811 Patent.

12 Ware Apparatus incorporates this limitation of the 811 Patent because it includes
13 among other things, a square top with raised rim look into its design and therefore
14 infringes on the 811 Patent.
15
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811 Patented Design

17

U.S. Patent No. D680,811-Figure 1

Fong Ware Apparatus

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20.

Second, the 811 Patent has a unique and distinguishing look of a

2 frusto-conical bowl in the middle of a boxy frame. This was not disclosed in prior
3 art and is very unique in its ratio in relation to the boxy frame. Defendants
4 infringing Fong Ware Apparatus also includes a boxy frame with a frusto-conical
5 bowl, with a frame-to-bowl ratio very similar to that depicted in the 811 Patent. As
6 shown below, the Defendant Fong Wares Apparatus infringes on the 811 Patent
7 because it satisfies this limitation of the 811 Patent.
9

811 Patented Design

10

U.S. Patent No. D680,811-Figure 1

Fong Ware Apparatus

11

A PROFESSIONAL CORPO RATION


ATTORNEYS AT LAW
12800 CENTER COURT DRIVE SOUTH, SUITE 300
CERRITOS, CAL IFORNIA 90703-9364
TELEPHONE: (562) 653- 3200
FAX: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

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21.

Third, the 811 Patent has four equally-spaced upwardly extending and

2 protruding prongs along the top rim of the frusto-conical bowl, each with two
3 tentacles. The design feature of four such prongs was not disclosed in any prior
4 art. Defendants infringing Fong Ware Apparatus also contains four equally-spaced
5 and upwardly extending and protruding prongs along the top rim of the frusto6 conical bowl, each with two tentacles, as taught by the 811 Patent. As shown
7 below, the Defendant Fong Wares Apparatus infringes on the 811 Patent because
9

811 Patented Design

10

U.S. Patent No. D680,811-Figure 2

Fong Ware Apparatus

11

A PROFESSIONAL CORPO RATION


ATTORNEYS AT LAW
12800 CENTER COURT DRIVE SOUTH, SUITE 300
CERRITOS, CAL IFORNIA 90703-9364
TELEPHONE: (562) 653- 3200
FAX: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8 it satisfies this limitation of the 811 Patent.

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811 Patented Design

19

U.S. Patent No. D680,811-Figure 1

Fong Ware Apparatus

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22.

Fourth, the 811 Patent has two opposing gaps around the top rim of the

2 frusto-conical bowl such that the complete circular perimeter is separated into two
3 half circles by these two gaps. This design is not in the prior art. As shown below,
4 the Defendants Fong Ware Apparatus clearly shows a frusto-conical bowl having a
5 circular perimeter separated into two half circles by two gaps. The Defendants
6 infringing Fong Ware Apparatus has clearly incorporated the two gap element
7 into its design and therefore infringes because it satisfies this limitation of the 811
9
811 Patented Design

10
11

A PROFESSIONAL CORPO RATION


ATTORNEYS AT LAW
12800 CENTER COURT DRIVE SOUTH, SUITE 300
CERRITOS, CAL IFORNIA 90703-9364
TELEPHONE: (562) 653- 3200
FAX: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8 Patent.

Fong Ware Apparatus

U.S. Patent No. D680,811-Figure 7

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23.

Fifth, the 811 Patent contains concentric circles in the frusto-conical

2 bowl. Some of the prior art designs have concentric circles, but they are limited to
3 flat, planar, circular heating elements sitting within or on top of a boxy body. The
4 prior art has no design of a three-dimensional bowl comprised of concentric circular
5 frames. The Defendants infringing Fong Ware Apparatus has a frusto-conical bowl
6 which includes concentric circles and contains the general design concept of the
7 concentric circles as is taught in the 811 Patent. As shown below, the Defendant
9 limitation of the 811 Patent.
10
811 Patented Design

11

A PROFESSIONAL CORPO RATION


ATTORNEYS AT LAW
12800 CENTER COURT DRIVE SOUTH, SUITE 300
CERRITOS, CAL IFORNIA 90703-9364
TELEPHONE: (562) 653- 3200
FAX: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8 Fong Wares Apparatus infringes on the 811 Patent because it satisfies this

12

Fong Ware Apparatus

U.S. Patent No. D680,811-Figure 7

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24.

Sixth, the 811 Patent has a boxy frame with side walls containing

2 horizontal windows located approximately half way down the wall. This is a
3 distinguishing feature from the prior art because none of the prior art has side
4 windows. The 811 Patents generally-horizontal window is approximately centered
5 halfway down the side wall, such that the vertical height of the window is
6 approximately one-third of the total vertical height of the Apparatus shown in the
7 811 Patented Design. As shown below, the Defendant Fong Wares Apparatus
9 approximately centered halfway down the side wall, such that the vertical height of
10 the window is approximately one-third of the total vertical height of the Apparatus.
11 Defendants infringing Fong Ware Apparatus therefore infringes the 811 Patent

A PROFESSIONAL CORPO RATION


ATTORNEYS AT LAW
12800 CENTER COURT DRIVE SOUTH, SUITE 300
CERRITOS, CAL IFORNIA 90703-9364
TELEPHONE: (562) 653- 3200
FAX: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8 infringes on the 811 Patent because it also contains a generally horizontal window,

12 because it satisfies this limitation of the 811 Patent.


13
14
15

811 Patented Design

Fong Ware Apparatus

U.S. Patent No. D680,811-Figure 4

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25.

Defendants acts of infringement of the 811 Patent were undertaken

2 without permission or license from Plaintiff. Upon information and belief,


3 Defendant had actual knowledge of Plaintiffs rights in the design claimed in the
4 811 Patent. Plaintiffs design and the BPG Apparatus is innovative and used in its
5 twenty-one (21) locations across North America, including a location in Chino
6 Hills, California less than seven (7) miles from Defendants principal place of
7 business. Accordingly, Defendants actions constitute willful and intentional
9 Patent with reckless disregard of Plaintiffs patent rights. Defendant knew, or it was
10 obvious that Defendant should have known, that its actions constituted infringement
11 of the 811 Patent. Defendants acts of infringement of the 811 Patent were not

A PROFESSIONAL CORPO RATION


ATTORNEYS AT LAW
12800 CENTER COURT DRIVE SOUTH, SUITE 300
CERRITOS, CAL IFORNIA 90703-9364
TELEPHONE: (562) 653- 3200
FAX: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8 infringement of the 811 Patent. Alternatively Defendant infringed on the 811

12 consistent with standards of commerce for its industry.


13

26.

As a direct and proximate result of Defendants act of infringement,

14 Defendant has derived and received gains, profits, and advantages in an amount that
15 is not presently known to Plaintiff.
16

27.

Pursuant to 35 U.S.C 284, Plaintiff is entitled to damages for

17 Defendants infringing acts and treble damages together with interests and costs as
18 fixed by this Court.
19

28.

Pursuant to 35 U.S.C. 285, Plaintiff is entitled to reasonable

20 attorneys fees for the necessity of bringing this claim.


21

29.

Pursuant to 35 U.S.C. 289, Plaintiff is entitled to Defendants total

22 profits from Defendants infringement of Plaintiffs design patents.


23

30.

Due to the aforesaid infringing acts, Plaintiff has suffered great and

24 irreparable injury, for which Plaintiff has no adequate remedy at law.


25

31.

Defendant will continue to directly and/or indirectly infringe Plaintiffs

26 patent rights to the great and irreparable injury of Plaintiff, unless enjoined by this
27 Court.
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1
2

VI. PRAYER FOR RELIEF


WHEREFORE, Plaintiff prays for judgment in its favor against Defendant

3 for the following relief:


4

1.

An Order adjudging Defendant to have willfully infringed on the 811

5 Patent under 35 U.S.C. 271;


6

2.

A preliminary and permanent injunction enjoining Defendant, its

7 respective officers, directors, agents, servants, employees, and attorneys, and those
9 infringing the 811 Patent in violation of 35 U.S.C. 271;
10

3.

That Defendant accounts for all gains, profits, and advantages derived

11 by Defendants infringement of the 811 Patent in violation of 35 U.S.C. 271, and

A PROFESSIONAL CORPO RATION


ATTORNEYS AT LAW
12800 CENTER COURT DRIVE SOUTH, SUITE 300
CERRITOS, CAL IFORNIA 90703-9364
TELEPHONE: (562) 653- 3200
FAX: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

8 persons in active concert or participation with Defendant, from directly or indirectly

12 that Defendant pays to Boiling Point Group, Inc., all damages suffered by Plaintiff
13 and/or Defendants total profit from such infringement pursuant to 35 U.S.C. 289;
14

4.

An Order for a trebling of damages and/or exemplary damages because

15 of Defendants willful conduct pursuant to 35 U.S.C. 284;;


16

5.

An Order adjudging that this is an exceptional case and that, because of

17 the exceptional nature of this case resulting from Defendants deliberate infringing
18 actions, this Court award to Boiling Point Group, Inc. all reasonable attorneys fees,
19 costs, and disbursements incurred as a result of this action, pursuant to 35 U.S.C.
20 285;
21

6.

An award of pre-judgment and post-judgment interest and costs of this

22 action against Defendant; and,


23

7.

Such other and further relief as this Court may deem just and proper.

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1
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Dated: March 11, 2016

ATKINSON, ANDELSON, LOYA, RUUD &


ROMO
By: /s/ Aaron S. Craig
Aaron S. Craig
Komal J. Mehta
Attorneys for Plaintiff
BOILING POINT GROUP, INC.

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A PROFESSIONAL CORPO RATION


ATTORNEYS AT LAW
12800 CENTER COURT DRIVE SOUTH, SUITE 300
CERRITOS, CAL IFORNIA 90703-9364
TELEPHONE: (562) 653- 3200
FAX: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

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1
DEMAND FOR JURY TRIAL

2
3

In accordance with Local Rule 38-1, Plaintiff Boiling Point Group, Inc.

4 hereby demands a trial by jury on all issues so triable.


5

Respectfully submitted,

6 Dated: March 11, 2016


7

9
10

By: /s/ Aaron S. Craig


Aaron S. Craig
Komal J. Mehta
Attorneys for Plaintiff
BOILING POINT GROUP, INC.

11

A PROFESSIONAL CORPO RATION


ATTORNEYS AT LAW
12800 CENTE R COURT DRIVE SOUTH, SUITE 300
CERRITOS, CAL IFORNIA 90703-9364
TELEPHONE: (562) 653- 3200
FAX: (562) 653-3333

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

ATKINSON, ANDELSON, LOYA, RUUD &


ROMO

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