rick meritt investments v. all seasons feeders et. al

8/4/2019 Rick Meritt Investments v. All Seasons Feeders et. al.

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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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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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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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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



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



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


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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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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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



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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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



the designs shown in the 975 Patent. FeederMaxs infringing designs are literally the same


38. Examples of FeederMax products that use the patented designs are shown below,adjacent to the corresponding patent drawing:


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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


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.



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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



the designs shown in the 503 Patent. All Seasons infringing designs are literally the same


46. Examples of All Seasons products that use the patented designs are shownbelow, adjacent to the corresponding patent drawing:


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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



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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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



the designs shown in the 503 Patent. FeederMaxs infringing designs are literally the same


52. Examples of FeederMax products that use the patented designs are shown below,adjacent to the corresponding patent drawing:


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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


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


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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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]
mailto:[email protected]:[email protected]:[email protected]


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BEN KING


NIX PATTERSON &ROACH L.L.P.

2900 St. Michael Drive, Suite 500

Texarkana, Texas 75503

903.223.3999 (telephone)903.223.8520 (facsimile)

[email protected]

ANTHONY BRUSTER


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)

[email protected]

[email protected]

ATTORNEYS FOR PLAINTIFF
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

rick meritt investments v. all seasons feeders et. al

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