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Original Complaint for Patent Infringement Page 1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXASTYLER DIVISION
RICK MERITT INVESTEMNTS, LTD.
d/b/a Outback Wildlife Feeders Plaintiff
v. CASE NO.:
JURY DEMAND
ALL SEASONS FEEDERS, LTD;
ATASCOSA WILDLIFE SUPPLY, INC.; FEEDER MAX, LLC;
Defendants
ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
Plaintiff Rick Meritt Investments, Ltd. d/b/a Outback Wildlife Feeders files this Original
Complaint against Defendants All Seasons Feeders, Ltd.; Atascosa Wildlife Supply, Inc.; and
Feeder Max, LLC (Feeder Max) (all collectively referred to as Defendants) and alleges as
follows:
I. NATURE OF THE SUIT
1. This is a claim for patent infringement arising under the patent laws of the UnitedStates, Title 35 of the United States Code.
II. THE PARTIES
2. Plaintiff Rick Meritt Investments, Ltd. d/b/a Outback Wildlife Feeders(Outback)is a Texas limited partnership that maintains its principal place of business at 5197
FM 2685, Gilmer, Texas 75645, which is located in the Eastern District of Texas.
3. Defendant All Seasons Feeders, Ltd. (All Seasons) is a Texas limited partnership that maintains its principal place of business at 8424 Highway 87, San Antonio,
Texas 78263. This defendant does business in Texas and within this District and can be served
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Original Complaint for Patent Infringement Page 3
8. Venue is proper in this Court under 28 U.S.C. 1391(b), (c), and (d), as well as28 U.S.C., 1400(b) for the reasons set forth above. Furthermore, venue is proper because
Defendants solicit and establish business relationships with individuals and businesses in this
District, which involve infringing products as discussed below. Each act of Defendants directly
or indirectly infringing conduct in this District gives rise to proper venue.
IV. PATENT INFRINGEMENT
9. This cause of action asserts infringement of three patentsUnited States PatentNo. 7,370,605 B2 entitled Animal Feeding Apparatus (the 605 Patent), United States
Design Patent No. D599,503 S entitled Feeding Tube (the 503 Patent), and United States
Design Patent No. D629,975 S entitled Feeding Tube (the 975 Patent). These patents are
collectively referred to as the Patents-in-Suit.
10. A true and correct copy of the 605 Patent is attached hereto as Exhibit A; a trueand correct copy of the 503 Patent is attached hereto as Exhibit B; and a true and correct copy of
the 975 Patent is attached hereto as Exhibit C.
11. Outback is the current owner of all rights, title, and interest in and under the 605Patent. The 605 Patent duly and legally issued on May 13, 2008 with Rick Meritt as the named
inventor.
12. Outback is the current owner of all rights, title, and interest in and under the 503Patent, which duly and legally issued on September 1, 2009 with Rick Meritt as the named
inventor. The 503 Patent has a term of 14 years.
13. Outback is the current owner of all rights, title, and interest in and under the 975Patent, which duly and legally issued on December 28, 2010 with Rick Meritt as the named
inventor. The 975 Patent has a term of14 years.
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14. Through its business operations and manufacturing facility located in Gilmer,Texas, Outback manufactures and sells animal feeders, including gravity flow extended tube
protein feeders. Several years ago, Outback began manufacturing gravity flow feeders with a
uniquely designed extended tube. This extended tube design enables unattended feeding of
animals while simultaneously preventing spillage of feed and protecting the feed from moisture
contamination.
15. Defendants are in the business of making, using, selling, and/or offering for saleanimal feeders, including extended tube protein feeders that incorporate the features and designs
of the Patents-in-Suit. Defendants offer these products to customers in the United States,
including Texas and within this District through distributors, via their respective websites, and/or
through various publications such as magazines, journals, and newspapers. In offering these
extended tube protein feeders, Defendants make, use, sell, and/or offer for sale products that
infringe one or more claims of the Patents-in-Suit.
V. CLAIM ONETHE 605 PATENT
16. The allegations of paragraphs 1-15 above are incorporated by reference as if fullyset forth herein.
17. Defendants have been and are infringing the 605 Patent by making, using,selling, and/or offering for sale in the United States, and within this District, directly and/or by
inducement, without authority, products that fall within the scope of the 605 Patent.
18. Defendants have been and are actively inducing the infringement of the 605Patent among themselves and by others. Outback contends that Defendants had knowledge of
the 605 Patent either from communications with Outback, from markings on Outbacks
products, from Outbacks advertisements, and/or from general information available in the
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Original Complaint for Patent Infringement Page 5
wildlife feeder industry. With knowledge of the 605 Patent, Defendants induce others,
including their retail partners, to make, use, sell, and/or offer for sale extended tube feeders that
encompass the features and/or designs of the 605 Patent.
19. Defendants infringement continues to date and will continue unless Defendantsare enjoined by the Court.
20. The Defendants open and notorious infringement of the 605 Patent hasfundamentally undermined Outbacks ability to continue to successfully commercialize the
patented technology it owns or to otherwise enjoy the benefit of its exclusive federally issued
patent rights. Defendants failure to recognize the 605 Patent and Outbacks rights as the patent
holder has and continues to undermine the value of the 605 Patent for which Outback has no
adequate remedy at law.
21. Outback has suffered, and will continue to suffer, irreparable harm and damageunless preliminary and final injunctions are issued enjoining Defendants from infringing upon
the Patents.
All Seasons
22. Defendant All Seasons infringes the 605 Patent by making, using, selling, and/oroffering to sell products that fall within the scope of the 605 Patent. Specifically, All Seasons
infringes, literally and/or under the doctrine of equivalents, at least Claim 1 of the 605 Patent at
least through the manufacture use, selling, and/or offering to sell extended tube protein feeders,
including at least the following: 1000 pound, 2000 pound, and/or 3000 pound extended tube
feeders and the Hercules extended tube feeder.
Atascosa
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Original Complaint for Patent Infringement Page 6
23. Defendant Atascosa infringes the 605 Patent by making, using, selling, and/oroffering to sell products that fall within the scope of the 605 Patent. Specifically, Atascosa
infringes, literally and/or under the doctrine of equivalents, at least Claim 1 of the 605 Patent at
least through the manufacture use, selling, and/or offering to sell extended tube protein feeders,
including at least the following: 1000 pound, 2000 pound, and/or 3000 pound extended tube
feeders as well as.
FeederMax
24. Defendant FeederMax infringes the 605 Patent by making, using, selling, and/oroffering to sell products that fall within the scope of the 605 Patent. Specifically, FeederMax
infringes, literally and/or under the doctrine of equivalents, at least Claim 1 of the 605 Patent at
least through the manufacture use, selling, and/or offering to sell extended tube protein feeders,
including at least the following: 400 pound, 600 pound, 800 pounds, 1000 pound, 2000 pound,
and/or 3000 pound extended tube feeders.
25. Defendants had knowledge of the 605 Patent as noted above, and therefore theirinfringement of the 605 Patent has been and is willful. Each of the Defendants listed herein
have had actual or constructive notice and knowledge of the Outback patents and their
infringement prior to the filing of this lawsuit.
VI. CLAIM TWOTHE 975 PATENT
26. The allegations of paragraphs 1-25 above are incorporated by reference as if fullyset forth herein.
27. Defendants have been and are infringing the 975 Patent by making, using,selling, and/or offering for sale in the United States, and within this District, directly and/or by
inducement, without authority, products that fall within the scope of the 975 Patent.
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28. Defendants infringement continues to date and will continue unless Defendantsare enjoined by the Court.
29. Defendants open and notorious infringement of the 975 Patent hasfundamentally undermined Outbacks ability to continue to successfully commercialize the
patented designs it owns or to otherwise enjoy the benefit of its exclusive federally issued patent
rights. Defendants failure to recognize the 975 Patent and Outbacks rights as the patent holder
has and continues to undermine the value of the 975 Patent for which Outback has no adequate
remedy at law. Outback contends that Defendants had knowledge of the 975 Patent either from
communications with Outback, from markings on Outbacks products, from Outbacks
advertisements, and/or from general information available in the wildlife feeder industry.
30. Outback has suffered, and will continue to suffer, irreparable harm and damageunless preliminary and final injunctions are issued enjoining Defendants from infringing upon
the Patents.
All Seasons
31. All Seasons has been and is manufacturing, distributing, marketing, and/or sellingextended tube feeders throughout the State of Texas, including this District, that infringe the 975
Patent. The ordinary observer with knowledge of the prior art, giving such attention to the
designs as a purchaser would give, is likely to mistake the design of the infringing products for
the designs shown in the 975 Patent. All Seasons infringing designs are literally the same
and/or similar and/or equivalent in design and/or effect to the 975 Patent.
32. Examples of All Seasons products that use the patented designs are shownbelow, adjacent to the corresponding patent drawing:
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Original Complaint for Patent Infringement Page 8
975 Patent Figure 1
All Seasons Tube
975 Patent Figure 4 All Seasons Tube
33. Despite its notice and knowledge of the 975 Patent, All Seasons continues tomake, use, sell, and/or offer to sell its infringing products. All Seasons infringement of the 975
Patent is deliberate, willful, and intentional and in bad faith and continues despite All Seasons
full knowledge of the 975 Patent.
Atascosa
34. Atascosa has been and is manufacturing, distributing, marketing, and/or sellingextended tube feeders throughout the State of Texas, including this District, that infringe the 975
Patent. The ordinary observer with knowledge of the prior art, giving such attention to the
designs as a purchaser would give, is likely to mistake the design of the infringing products for
the designs shown in the 975 Patent. Atascosas infringing designs are literally the same and/or
similar and/or equivalent in design and/or effect to the 975 Patent.
35. Examples of Atascosa products that use the patented designs are shown below,adjacent to the corresponding patent drawing:
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Original Complaint for Patent Infringement Page 9
975 Patent Figure 1
Atascosa Tube
975 Patent Figure 4 Atascosa Tube
36. Despite its notice and knowledge of the 975 Patent, Atascosa continues to make,use, sell, and/or offer to sell its infringingproducts. Atascosas infringement of the 975 Patent
is deliberate, willful, and intentional and in bad faith and continues despite Atascosas full
knowledge of the 975 Patent.
FeederMax
37. FeederMax has been and is manufacturing, distributing, marketing, and/or sellingextended tube feeders throughout the State of Texas, including this District, that infringe the 975
Patent. The ordinary observer with knowledge of the prior art, giving such attention to the
designs as a purchaser would give, is likely to mistake the design of the infringing products for
the designs shown in the 975 Patent. FeederMaxs infringing designs are literally the same
and/or similar and/or equivalent in design and/or effect to the 975 Patent.
38. Examples of FeederMax products that use the patented designs are shown below,adjacent to the corresponding patent drawing:
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Original Complaint for Patent Infringement Page 10
975 Patent Figure 1FeederMax Tube
975 Patent Figure 4 FeederMax Tube
39. Despite its notice and knowledge of the 975 Patent, FeederMax continues tomake, use, sell, and/or offer to sell its infringing products. FeederMaxs infringement of the
975 Patent is deliberate, willful, and intentional and in bad faith and continues despite
FeederMaxs full knowledge of the 975 Patent.
VII. CLAIM THREETHE 503 PATENTS
40. The allegations of paragraphs 1-39 above are incorporated by reference as if fullyset forth herein.
41. Defendants have been and are infringing the 503 Patent by making, using,selling, and/or offering for sale in the United States, and within this District, directly,
contributory, and/or by inducement, without authority, products that fall within the scope of the
503 Patent.
42. Defendants infringement continues to date and will continue unless Defendantsare enjoined by the Court.
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Original Complaint for Patent Infringement Page 11
43. Defendants open and notorious infringement of the 503 Patent hasfundamentally undermined Outbacks ability to continue to successfully commercialize the
patented designs it owns or to otherwise enjoy the benefit of its exclusive federally issued patent
rights. Defendants failure to recognize the 503 Patent and Outbacks rights as the patent holder
has and continues to undermine the value of the 503 Patent for which Outback has no adequate
remedy at law. Outback contends that Defendants had knowledge of the 503 Patent either from
communications with Outback, from markings on Outbacks products, from Outbacks
advertisements, and/or from general information available in the wildlife feeder industry.
44.
Outback has suffered, and will continue to suffer, irreparable harm and damage
unless preliminary and final injunctions are issued enjoining Defendants from infringing upon
the Patents.
All Seasons
45. All Seasons has been and is manufacturing, distributing, marketing, and/or sellingextended tube feeders throughout the State of Texas, including this District, that infringe the 503
Patent. The ordinary observer with knowledge of the prior art, giving such attention to the
designs as a purchaser would give, is likely to mistake the design of the infringing products for
the designs shown in the 503 Patent. All Seasons infringing designs are literally the same
and/or similar and/or equivalent in design and/or effect to the 503 Patent.
46. Examples of All Seasons products that use the patented designs are shownbelow, adjacent to the corresponding patent drawing:
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Original Complaint for Patent Infringement Page 12
503 Patent Figure 1 All SeasonsFour Tube Feeder
47. Despite its notice and knowledge of the 503 Patent, All Seasons continues tomake, use, sell, and/or offer to sell its infringing products. All Seasons infringement of the 503
Patent is deliberate, willful, and intentional and in bad faith and continues despite All Seasons
full knowledge of the 503 Patent.
Atascosa
48. Atascosa has been and is manufacturing, distributing, marketing, and/or sellingextended tube feeders throughout the State of Texas, including this District, that infringe the 503
Patent. The ordinary observer with knowledge of the prior art, giving such attention to the
designs as a purchaser would give, is likely to mistake the design of the infringing products for
the designs shown in the 503 Patent. Atascosas infringing designs are literally the same and/or
similar and/or equivalent in design and/or effect to the 503 Patent.
49. Examples of Atascosa products that use the patented designs are shown below,adjacent to the corresponding patent drawing:
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Original Complaint for Patent Infringement Page 13
503 Patent Figure 1 AtascosaFour Tube Feeder
50. Despite its notice and knowledge of the 503 Patent, Atascosa continues to make,use, sell, and/or offer to sell its infringing products. Atascosas infringement of the 503 Patent
is deliberate, willful, and intentional and in bad faith and continues despite Atascosas full
knowledge of the 503 Patent.
FeederMax
51. FeederMax has been and is manufacturing, distributing, marketing, and/or sellingextended tube feeders throughout the State of Texas, including this District, that infringe the 503
Patent. The ordinary observer with knowledge of the prior art, giving such attention to the
designs as a purchaser would give, is likely to mistake the design of the infringing products for
the designs shown in the 503 Patent. FeederMaxs infringing designs are literally the same
and/or similar and/or equivalent in design and/or effect to the 503 Patent.
52. Examples of FeederMax products that use the patented designs are shown below,adjacent to the corresponding patent drawing:
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Original Complaint for Patent Infringement Page 14
503 Patent Figure 1 FeederMaxFour tube feeder
53. Despite its notice and knowledge of the 503 Patent, FeederMax continues tomake, use, sell, and/or offer to sell its infringing products. FeederMaxs infringement of the
503 Patent is deliberate, willful, and intentional and in bad faith and continues despite
FeederMaxs full knowledge of the 503 Patent.
VIII. INJUNCTION
54. The allegations of paragraphs 1-53 above are incorporated by reference as if fullyset forth herein.
55. As stated herein, Defendants will continue to infringe the Patents-in-Suit unlessenjoined by this Court. Outback has suffered, and will continue to suffer, irreparable harm and
damage unless preliminary and final injunctions are issued enjoining the Defendants from
infringing upon the Patents-in-Suit.
56. Outback therefore requests that this Court enter an order under 35 U.S.C. 283preliminarily and permanently enjoining Defendants from continuing to make or use extended
tube feeders utilizing the patented technology and designs.
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IX. DAMAGES
A. Reasonable Royalty
57. The allegations of paragraphs 1-56 above are incorporated by reference as if fullyset forth herein.
58. For the above-described infringement, Outback has been injured and seeksdamages to adequately compensate it for Defendants infringement of the Patents-in-Suit. Such
damages should be no less than the amount of a reasonable royalty under 35 U.S.C. 284.
B. Enhanced Damages, Attorneys Fees, and Expenses
59.
The allegations of paragraphs 1-58 above are incorporated by reference as if fully
set forth herein.
60. As stated above, Outback contends that Defendants had knowledge of andwillfully infringed the Patents-in-Suit. Outback requests that the Court enter a finding of willful
infringement and enhanced damages under 35 U.S.C. 284 up to three times the amount found
by the trier of fact.
61. Outback further requests that the Court enter an order finding that this is anexceptional case within the meaning of 35 U.S.C. 285. Pursuant to such an order Outback
seeks recovery of its reasonable attorneys fees and expenses.
X. PRAYER FOR RELIEF
62. Outback respectfully requests the following relief:a. A judgment that the Patents-in-Suit are infringed, directly and/or indirectly, by
Defendants as described herein;
b. A judgment and order preliminarily and permanently enjoining each Defendant,
its agents, employees, representatives, successors and assigns, and those acting in privity
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Original Complaint for Patent Infringement Page 16
or in concert with them, from further infringement, contributory infringement and/or
inducing infringement of the Patents-in-Suit;
c. A judgment and order requiring each Defendant to pay Outback damages under
35 U.S.C. 284, including treble damages for willful infringement as provided by 35
U.S.C. 284, and supplemental damages for any continuing post-verdict infringement up
until entry of the final Judgment with an accounting as needed;
d. A judgment and order requiring each Defendant to pay Outback pre-judgment and
post-judgment interest on the damages awarded;
e. A judgment and order finding this to be an exceptional case and requiring each
Defendant to pay the costs of this action (including all disbursements) and attorneys fees
as provided by 35 U.S. C. 285;
f. Such other and further relief as the Court deems just and proper.
XII. JURY DEMANDED
63. Outback requests a jury trial of all issues triable of right by a jury.
Respectfully submitted,
_________________________________
DEREK GILLILAND
TXSTATE BAR NO. 24007239
NIX PATTERSON &ROACH,L.L.P.
205 Linda DriveDaingerfield, Texas 75638
903.645.7333 (telephone)
903.645.5389 (facsimile)[email protected]
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BEN KING
TXSTATE BAR NO. 24048592
NIX PATTERSON &ROACH L.L.P.
2900 St. Michael Drive, Suite 500
Texarkana, Texas 75503
903.223.3999 (telephone)903.223.8520 (facsimile)
ANTHONY BRUSTER
TXSTATE BAR NO. 24036280
D.NEIL SMITH
TX STATE BAR NO.00797450
EDWARD CHIN
TXSTATE BAR NO..50511688
NIX PATTERSON &ROACH,L.L.P.
5215 N. OConnor Blvd., Suite 1900Irving, Texas 75039
972.831.1188 (telephone)972.444.0716 (facsimile)
ATTORNEYS FOR PLAINTIFF
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]