Case 6:18-cv-00267 Document 1 Filed 06/11/18 Page 1 of 8 PageID #: 1

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TEXAS
TYLER DIVISION

§
AMG PRODUCTS, INC. D/B/A AMG §
DEVELOPMENT §
AND PAUL SMITH §
§ Civ. Action No. 6:18-cv-267
Plaintiffs, §
§
v. § JURY TRIAL DEMANDED
§
WALGREEN CO., DIRT CHEAP LLC, §
CHANNEL CONTROL MERCHANTS OF §
TEXAS, LLC, and §
FRY’S ELECTRONICS, §
§
Defendants. §

COMPLAINT FOR PATENT INFRINGEMENT

Plaintiffs AMG Products, Inc. d/b/a AMG Development (“AMG”) and Paul Smith

(“Plaintiffs”), by counsel, file this Complaint against Defendants Walgreen Co., Dirt Cheap LLC,

Channel Control Merchants of Texas, LLC, and Fry’s Electronics, (collectively, “Defendants”),

and in support thereof, state as follows:

NATURE OF THE ACTION

1. This is a patent infringement action arising under the United States patent laws, 35

U.S.C. § 1, et seq., in which Plaintiffs assert infringement of U.S. Patent No. 6,902,289 by

Defendants’ manufacture, use, offer for sale, sale, or import in/into the United States of the product

known as “Atomic Beam Glove.” Plaintiffs are seeking an injunction prohibiting further sales of

the infringing product, as well as monetary damages and related remedies.

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THE PARTIES

2. Plaintiff AMG Products, Inc. d/b/a AMG Development is a Nevada corporation

with its principal place of business at 500 N. Rainbow Blvd. #300, Las Vegas, Nevada 89107.

3. Plaintiff Paul Smith is an individual residing at 42 Darling Parke Drive, Bangor

Maine 04401.

4. Defendant Walgreen Co. (“Walgreens”) is a corporation organized under the laws

of the State of Delaware with its principal place of business at 200 Wilmot Rd, Deerfield, IL

60015-4681. Walgreens sells products, such as the accused “Atomic Beam Glove” product,

through its stores throughout the country, including in the Eastern District of Texas.

5. Defendants Dirt Cheap, LLC and Channel Control Merchants of Texas, LLC (“Dirt

Cheap”) are limited liability companies that are doing business through retail stores as “Dirt

Cheap” with their principal place of business at 6892 US Hwy 49 North, Hattiesburg, MS, 39403.

Dirt Cheap sells products, such as the accused “Atomic Beam Glove” product, through its retail

stores throughout the country, including in the Eastern District of Texas.

6. Defendant Fry’s Electronics (“Fry’s”) is a corporation organized under the laws of

the State of California with its principal place of business at 600 E. Brokaw Rd., San Jose, CA,

95112-1006. Fry’s sells products, such as the accused “Atomic Beam Glove” product, through its

stores throughout the country, including in the Eastern District of Texas.

JURISDICTION AND VENUE

1. This is a civil action for patent infringement arising under the United States patent

statutes, 35 U.S.C. § 1, et seq.

2. This Court has jurisdiction over the subject matter of this action under 28 U.S.C.

§§ 1331 and 1338(a).

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3. Defendants are subject to this Court’s personal jurisdiction because they do and

have done substantial business in this judicial district. In addition, upon information and belief,

Defendants regularly sell products in Texas and specifically in the Eastern District of Texas.

Defendants are subject to the general jurisdiction of this Court because they have regular and

systematic contacts with this forum such that the exercise of jurisdiction over it would not offend

traditional notions of fair play and substantial justice.

4. Venue is proper in this judicial district under 28 U.S.C. § 1400(b). Defendants have

committed one or more infringing acts in this District. All of these Defendants are selling or have

sold the accused product in the Eastern District of Texas. Upon information and belief, Defendants

“reside” in this District because (1) there are physical places of Defendants’ businesses in this

District; specifically, Defendants have and operate retail stores located in this District, (2)

Defendants’ businesses in this District are regular and established, and (3) Defendants have places

of business operating their stores and selling the infringing products in this District.

THE PATENT-IN-SUIT

5. On June 7, 2005, the United States Patent and Trademark Office (“USPTO”) duly

and legally issued to assignee 4th Day Enterprises, LLC United States Patent No. 6,902,289 B1

(“the ‘289 Patent”), entitled “ILLUMINATED HAND COVER ASSEMBLY.” A copy of the

‘289 Patent is attached as Exhibit A.

6. Paul Smith is the owner of the ‘289 Patent by assignment and has standing to sue

for infringement.

7. AMG Products, Inc. d/b/a AMG Development is the exclusive licensee of the ‘289

Patent and has standing to sue for infringement.

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FACTS

8. Dr. Paul Smith is the inventor of an innovative glove product marketed under the

name “Glovelite.” The idea for Glovelite was created by Dr. Smith while flying at night in a small

private aircraft. In the aircraft, the gauges on the instrument panel were illuminated, but the

switches and other areas were not. Dr. Smith set out to solve that problem by testing different

products already on the market to no avail. So, Dr. Smith created a solution. He developed the

Glovelite concept by integrating small LED lights into a hand covering similar to a bicycle glove.

9. Dr. Smith then applied for a patent to protect his idea in 2003, and subsequently the

‘282 Patent issued on June 7, 2005. The originally filed claims were allowed without any

amendment to overcome prior art, and later filed claims, filed during prosecution, were also

allowed without any amendment to overcome prior art.

10. The Glovelite product was developed, manufactured and later sold on QVC,

Sporty’s, Flyboys, Wing’s Aviation, As Seen On TV, and at various trade shows. In 2012,

Glovelite was recognized at the National Hardware Show in Las Vegas and received the Most

Innovative Product award.

11. Plaintiffs invested significant time and monetary resources in developing, creating,

manufacturing, and marketing Glovelite.

12. In February of 2018, Dr. Smith was approached by a colleague who commented

about seeing Glovelite in a retail store. Knowing that could not have been his product, Glovelite,

Dr. Smith looked online at the store’s website and saw an identical product called Atomic Beam.

13. Below is a side by side photo comparison of the two products.

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Glovelite – Backhand View Atomic Beam – Backhand View

Glovelite – Palm View Atomic Beam – Palm View

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14. Dr. Smith went to the company’s website who manufactured the product

(Telebrands Corp. and Bulbhead) and reviewed their website to learn more about this “copycat”

product. On the website he saw a commercial for Atomic Beam which was identical to a

commercial that he had for Glovelite.

15. Plaintiffs have attempted to sell Glovelite to Walgreen’s only to be turned down

and then find that Walgreens is selling the copycat product, Atomic Beam.

16. The Atomic Beam glove is sold by the Defendants in various retail store locations,

including Tyler, Texas, in the Eastern District of Texas.

COUNT I

INFRINGEMENT OF THE ‘289 PATENT

17. Plaintiffs reallege and incorporate by reference all of the above paragraphs of this

complaint as if fully set forth herein.

18. Plaintiffs are the inventor and exclusive licensee of the entire right, title, and interest

in the ‘289 Patent.

19. Defendants have and continue to directly infringe the ‘289 Patent by importing,

distributing, offering to sell, and/or selling in the United States the Atomic Beam Glove product,

which embodies the design covered by the ‘289 Patent. Defendants’ infringing activities violate

35 U.S.C. § 271.

20. By making, using, offering for sale, and/or selling the Atomic Beam Glove product,

Defendants have injured Plaintiffs are liable to Plaintiffs for infringement of the ‘289 patent

pursuant to 35 U.S.C. § 271 directly and/or under the doctrine of equivalents.

21. Defendants have and continue to indirectly infringe the ‘289 Patent by knowingly

and intentionally inducing others, including Defendants’ customers and end users, to directly
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infringe, either literally or under the doctrine of equivalents, by importing, distributing, offering to

sell, and/or selling in the United States the Atomic Beam Glove product, which embodies the

design covered by the ‘289 Patent.

22. Defendants’ infringement of the ‘289 Patent is willful.

23. Plaintiffs are, and will continue to be, damaged and irreparably harmed by

Defendants’ direct and indirect infringement, which will continue unless Defendants are enjoined

by this Court.

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs respectfully request the following relief against Defendants:

A. A judgment holding Defendants liable for infringement of the ‘289 Patent.

B. A temporary restraining order, preliminary injunction, and permanent injunction

against Defendants, their officers, agents, servants, employees, attorneys, parent and subsidiary

corporations, assigns and successors in interest, and those persons in active concert or participation

with them, enjoining them from continued acts of infringement of the ‘289 Patent, including

without limitation, an injunction against offers for sale and future sales of the infringing product

or any colorable imitation thereof;

C. A judgment that the ‘289 Patent is duly and legally issued, valid, and enforceable;

D. An accounting for damages and an award of damages adequate to compensate for

Defendants’ infringement of the ‘289 Patent, and in no event less than a reasonable royalty for

Defendants’ acts of infringement, including all pre-judgment and post-judgment interest at the

maximum rate permitted by law;

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E. Restitutionary relief against Defendants in favor of Plaintiffs, including

disgorgement of wrongfully obtained profits pursuant to 35 U.S.C. § 289 and any other appropriate

relief;

F. A judgment holding that Defendants’ infringement of the ‘289 Patent is willful and

a trebling of damages pursuant to 35 U.S.C. § 284;

G. A judgment holding that this action is an exceptional case and an award to Plaintiffs

for their attorney’s fees and costs pursuant to 35 U.S.C. § 285 and other authority;

H. A judgment that Plaintiffs be awarded their costs incurred herein; and

I. Such other relief as the Court deems just and equitable.

DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38, Plaintiffs hereby demand a trial by jury.

Dated: June 11, 2018 Respectfully submitted,

/s/ Eric H. Findlay_______

Eric H. Findlay
State Bar No. 00789886
Brian Craft
State Bar No. 04972020
Debby Gunter
State Bar No. 24012752
Findlay Craft, P.C.
102 N. College Ave, Ste 900
Tyler, TX 75702
903-534-1100 (t)
903-534-1137 (f)
efindlay@findlaycraft.com
bcraft@findlaycraft.com
dgunter@findlaycraft.com

COUNSEL FOR PLAINTIFFS AMG

PRODUCTS, INC. D/B/A AMG
DEVELOPMENT AND PAUL SMITH

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EXHIBIT A
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JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

AMG PRODUCTS, INC. D/B/A AMG DEVELOPMENT AND PAUL WALGREEN CO., DIRT CHEAP, LLC, CHANNEL CONTROL
SMITH MERCHANTS OF TEXAS, LLC AND FRY'S ELECTRONICS

(b) County of Residence of First Listed Plaintiff CLARK COUNTY, NV County of Residence of First Listed Defendant LAKE COUNTY, IL
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
ERIC H. FINDLAY, FINDLAY CRAFT, P.C.
102 NORTH COLLEGE AVENUE, SUITE 900, TYLER, TX 75702
903-534-1100

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act
’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC
’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))
’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment
’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust
& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking
’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce
’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 835 Patent - Abbreviated ’ 460 Deportation
Student Loans ’ 340 Marine Injury Product New Drug Application ’ 470 Racketeer Influenced and
(Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations
’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY ’ 480 Consumer Credit
of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 490 Cable/Sat TV
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) ’ 850 Securities/Commodities/
’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) Exchange
’ 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 890 Other Statutory Actions
’ 196 Franchise Injury ’ 385 Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 891 Agricultural Acts
’ 362 Personal Injury - Product Liability ’ 751 Family and Medical ’ 893 Environmental Matters
Medical Malpractice Leave Act ’ 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 790 Other Labor Litigation FEDERAL TAX SUITS Act
’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 896 Arbitration
’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee Income Security Act or Defendant) ’ 899 Administrative Procedure
’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party Act/Review or Appeal of
’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 Agency Decision
’ 245 Tort Product Liability Accommodations ’ 530 General ’ 950 Constitutionality of
’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION State Statutes
Employment Other: ’ 462 Naturalization Application
’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration
Other ’ 550 Civil Rights Actions
’ 448 Education ’ 555 Prison Condition
’ 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict ’ 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. § 1, et seq.
VI. CAUSE OF ACTION Brief description of cause:
Patent Infringement
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
06/11/2018 /s/Eric H. Findlay
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

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JS 44 Reverse (Rev. 06/17)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.

V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.