Charcoal Companion v. Medium Rare - Complaint

Case 4:16-cv-06564 Document 1 Filed 11/11/16 Page 1 of 8
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BEESON SKINNER BEVERLY, LLP

Donald L. Beeson, CA State Bar No. 56532
dbeeson@bsbllp.com
Varun Nayini, CA State Bar No. 293465
vnayini@bsbllp.com
One Kaiser Plaza, Suite 750
Oakland, CA 94612
Tel.: (510) 832-8700
Fax: (510) 836-2595
Attorneys for Plaintiff
CHARCOAL COMPANION, INCORPORATED
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CHARCOAL COMPANION,
INCORPORATED,
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Plaintiff,
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v.
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MEDIUM RARE INDUSTRIES, INC
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dba Cave Tools
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Defendant
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________________________________)
Case. No.
COMPLAINT FOR PATENT
INFRINGEMENT
(JURY TRIAL DEMANDED)
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Plaintiff, Charcoal Companion, Incorporated (CCI), hereby alleges for its
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complaint against Defendant, Medium Rare Industries Inc. dba Cave Tools (Cave
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Tools), as follows:
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JURISDICTION
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1.
This is a civil action arising under the patent laws of the United States, 35
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U.S.C. 100, et seq. This Court has subject matter jurisdiction over this action pursuant
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to 28 U.S.C. 1331 and 1338(a).
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VENUE
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2.
Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b) and
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1400(b) because Defendant committed acts of patent infringement in this district.

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INTRADISTRICT ASSIGNMENT
3.
This case is exempt from intradistrict assignment pursuant to Civil L. R. 3-
2(c) because it includes intellectual property claims.
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PARTIES
4.
Plaintiff CCI is a California corporation having its principal business offices
located at 5905 Christie Avenue, Emeryville, California 94608.

5.
On information and belief, Defendant Cave Tools is a Pennsylvania
corporation having its principal business offices located at 125 Ranch Road, Newtown,
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Pennsylvania 18940.
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FACTUAL BACKGROUND
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6.
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products.
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7.
Plaintiff CCI designs, markets, and distributes barbecue accessory
Plaintiff CCI owns U.S. Utility Patent No. 8,997,639 for a SMOKER BOX
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FOR HOLDING FOOD FLAVORING WOOD CHIPS OR THE LIKE (the 639 Patent),
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which was duly and legally issued by the United States Patent and Trademark Office on
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April 7, 2015, and a copy of which is attached hereto as Exhibit A.
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8.
The claims of the 639 Patent are directed to a smoker box that can hold a
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quantity of wood chips and that can be removably placed below the cooking grate of a
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gas or electric cooking grill having heat deflector bars. When the wood chips in the
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smoker box burn, the resulting smoke escapes through perforations on the top lid of the
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smoker box and impart enhanced smoke flavor into foods cooked on the grill. See, 639
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Patent at 2:23-2:31.
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9.
Earlier smoker boxes for wood chips were placed on top of the cooking
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grate or built into the grill itself. One drawback of these prior art smoker box
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arrangements is that the smoker box is not located where it can most advantageously
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smoke the food: below the cooking grate. The smoker box of the 639 Patent overcomes
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this drawback. It can be tucked between the heat deflector bars of a grill well below the
cooking grate. 639 Patent at 1:11-1:62. The smoker box can be provided in numerous

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COMPLAINT FOR UTILITY PATENT INFRINGEMENT AND DESIGN PATENT INFRINGEMENT
different shapes and configurations that allow for this advantageous placement. 639
Patent, Figs. 1, 4A, 4B, 4C, 6A and 6B.
10.
Plaintiff CCI further owns U.S. Design Patent No. D585,702 which covers a
particular distinctive and ornamental design for a SMOKER BOX FOR A COOKING
GRILL (the 702 Design Patent). The 702 Design Patent was duly and legally issued
by the United States Patent and Trademark Office on February 3, 2009, and a copy is
attached hereto as Exhibit B.
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Upon information and belief, Defendant Cave Tools markets, distributes,
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and sells a variety of cooking tools and accessories, including barbecue tools for use with
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charcoal or gas barbecue grills. Defendant Cave Tools sells its barbecue tool products
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directly to consumers through their official website at www.cavetools.com, as well as
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through third-party online retailers and e-commerce platforms such as Amazon.com.
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12.
Upon information and belief, Defendant Cave Tools has made, imported,
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used, offered to sell, and/or sold, and continues to make, import, use, offer to sell, and/or
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sell smoker box products that are covered by the 639 Patent and 702 Design Patent
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owned by Plaintiff CCI.
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702 Design Patent have been purchased from Defendant Cave Tools in this District.
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Photographs of Defendant Cave Tools infringing smoker box products are attached
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hereto as Exhibit C.
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13.
Smoker box products that are covered by the 639 Patent and
Upon information and belief, Defendant Cave Toolss infringing smoker box
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products are available in two different sizes, designated by model names "V SMOKER
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BOX S" and "V SMOKER BOX L". Other than size, these models are identical in design.
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14.
Plaintiff CCI has not authorized Defendant Cave Tools to make, import,
use, offer to sell, and/or sell the V SMOKER BOX S or V SMOKER BOX L.
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Plaintiff CCI sells within the United States its own smoker box products as
27 covered by the 639 Patent and 702 Design Patent and has marked the same with patent
28 notices in accordance with 35 U.S.C. 287(a).

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16.
Defendant Cave Tools also has actual notice of Plaintiff CCIs 639 Patent
and 702 Design Patent. In a demand letter dated September 30, 2016 sent by Plaintiff
CCI to Defendant Cave Tools, Plaintiff CCI notified Defendant Cave Tools of the 639
Patent and 702 Design Patent and Defendant Cave Tools infringement thereof. Despite
this notice, Plaintiff CCI is informed and believes that Defendant Cave Tools continues to
make, use, import, sell and/or offer for sale their infringing V SMOKER BOX S and V
SMOKER BOX L.
FIRST CAUSE OF ACTION
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INFRINGEMENT OF U.S. PATENT NO. 8,997,639
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17.
Plaintiff CCI incorporates the allegations of paragraphs 1-16 above.
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18.
Plaintiff CCI alleges that Defendant Cave Toolss V SMOKER BOX S and V
13 SMOKER BOX L infringe at least Claim 18 of the 639 Patent. Upon information and
14 belief, both smoker box products include the following limitations of Claim 18 required to
15 establish infringement:
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(1)
a container body for holding wood chips or the like, the container body
having a top and a smaller bottom centered beneath the top which defines
the deepest portion of the container body, wherein the container body

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progressively narrows from the top to the smaller centered bottom, the
container body being sized and shaped to approximately conform to the
trough region between adjacent heat deflector bars of a cooking grill on
which the smoker box is to be used; and
(2)
a lid for at least partially covering the top of the smoker box, the lid having a
plurality of openings to allow smoke to be released over a relatively large
area of the lid, whereby smoke from wood chips or the like contained within
the container body of the smoker box is released from the smoker box to
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flavor food on a cooking grate above the smoker box.
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SECOND CAUSE OF ACTION
INFRINGEMENT OF U.S. DESIGN PATENT NO. D585,702
19.
Plaintiff CCI incorporates the allegations of paragraphs 1-16 above.
20.
Plaintiff CCI further alleges that the design of Defendant Cave Toolss V
SMOKER BOX S and V SMOKER BOX L would be seen to be substantially the same in
the eyes of the ordinary observer to the distinctive, ornamental design covered by the 702
Design Patent.
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21.
The top-openings on the lid of the smoker box design of the 702 Design
20 Patent are in broken lines and thus are not part of the claimed design. Additionally, the
21 breaks depicted in the 702 Design Patent drawing indicate that the smoked box design
22 shown can be of any length.
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CLAIM FOR RELIEF

22.
As a direct and proximate consequence of Defendant Cave Toolss
25 infringement of the 639 Patent and 702 Design Patent, Plaintiff CCI has suffered and will
26 continue to suffer irreparable injury and damages in an amount not yet determined for
27 which Plaintiff CCI is entitled to relief.
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Defendant Cave Tools has been put on actual notice of the 639 Patent and
702 Design Patent by Plaintiff CCI and infringement of the 639 Patent and 702 Design
Patent by Defendant Cave Tools has been willful and deliberate.
24.
Pursuant to 35 U.S.C. 284, Plaintiff CCI is entitled to damages, and to
treble damages, on grounds that, on information and belief, the infringement by Defendant
Cave Tools was willful and deliberate.
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25.
Pursuant to 35 U.S.C. 289, Plaintiff CCI is entitled to Defendant Cave
Toolss total profit on account of the infringement, and pre-judgment and post-judgment
10 interest on such award.

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26.
Pursuant to 35 U.S.C. 283, Plaintiff CCI is entitled to temporary and
12 permanent injunctions enjoining Defendant Cave Tools from further infringing the 639
13 Patent and 702 Design Patent.
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PRAYER FOR RELIEF

WHEREFORE, Plaintiff CCI requests that this Court enter judgment in its favor
16 against Defendant Cave Tools as follows:

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Declaring that Defendant Cave Tools has infringed the 639 Patent and 702
18 Design Patent owned by Plaintiff CCI.

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Declaring that such infringement has been willful and deliberate.
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29.
Preliminarily and permanently enjoining Defendant Cave Tools, including its
21 respective officers, directors, agents, employees, parents, and subsidiaries, and all others
22 acting or controlled by or through Defendant Cave Tools, or acting in concert or
23 participating with Defendant Cave Tools, from making, using, causing to be used, selling,
24 offering to sell, and importing into the United States any goods that directly infringe,
25 contributorily infringe, or inducing or causing others to infringe the 639 Patent and 702
26 Design Patent pursuant to 35 U.S.C. 283.
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30.
That Plaintiff CCI be awarded compensatory damages according to proof on
28 account of such infringements in accordance with 35 U.S.C. 284, and pre-judgment and
post-judgment interest on such award.

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31.
That Plaintiff CCI be awarded Defendant Cave Toolss total profit on account
of such infringements under 35 U.S.C. 289, and pre-judgment and post-judgment
interest on such award.
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infringement pursuant to 35 U.S.C. 284;
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That treble damages be assessed against Defendant Cave Tools for willful
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Awarding Plaintiff CCI reasonable attorneys fees pursuant to 35 U.S.C.
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Awarding Plaintiff CCI such further and additional relief as this Court deems
285.
10 just and proper.

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DEMAND FOR A JURY TRIAL

35.
Pursuant to Fed. R. Civ. P. 38(b), Plaintiff CCI hereby demands a trial by
13 jury on all claims asserted herein.

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CERTIFICATION OF INTERESTED ENTITIES OR PARTIES

36.
Pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date,
16 other than the named parties, there is no such interest to report.

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18 Date: November 11, 2016
BEESON SKINNER BEVERLY, LLP
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By /Donald L. Beeson/
Donald L. Beeson
Attorneys for Plaintiff
Charcoal Companion, Incorporated
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Case 4:16-cv-06564 Document 1-1 Filed 11/11/16 Page 1 of 12
Exhibit A
Exhibit B
Exhibit C
JS-CAND 44 (Rev. 07/16)
CIVIL COVER SHEET
The JS-CAND 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 in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of
Court to initiate the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
Charcoal Companion, Incorporated

(b)
County of Residence of First Listed Plaintiff
Medium Rare Industries, Incorporated (dba Cave Tools)

County of Residence of First Listed Defendant
Alameda
(EXCEPT IN U.S. PLAINTIFF CASES)
(c)
Bucks County, Pennsylvania
(IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)
Attorneys (Firm Name, Address, and Telephone Number)
Beeson Skinner Beverly LLP

One Kaiser Plaza, Suite 750, Oakland CA 94612
(510) 832-8700
II. BASIS OF JURISDICTION (Place an X in One Box Only)
1
U.S. Government
Plaintiff
3 Federal Question
(U.S. Government Not a Party)
U.S. Government
Defendant
4 Diversity
(Indicate Citizenship of Parties in Item III)
IV. NATURE OF SUIT

CONTRACT
(For Diversity Cases Only)

PTF
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TORTS
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120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
Of Veterans Benefits
151 Medicare Act
152 Recovery of Defaulted
Student Loans
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153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
2 Removed from
State Court
3 Remanded from
Appellate Court
and One Box for Defendant)

PTF
DEF
DEF
Citizen of This State
1 Incorporated or Principal Place

of Business In This State
Citizen of Another State
2 Incorporated and Principal Place

of Business In Another State
Citizen or Subject of a
Foreign Country
3 Foreign Nation
FORFEITURE/PENALTY
PERSONAL INJURY
PERSONAL INJURY
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365 Personal Injury
315 Airplane Product
Product Liability
Liability
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320 Assault, Libel &
Pharmaceutical
Slander
Personal Injury
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Product Liability
Liability
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340 Marine
Injury Product
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Liability
Liability
PERSONAL PROPERTY
350 Motor Vehicle
370 Other Fraud
355 Motor Vehicle
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Product Liability
380 Other Personal
Property Damage
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Injury
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Medical Malpractice
CIVIL RIGHTS
PRISONER PETITIONS
Habeas Corpus:
440 Other Civil Rights
441 Voting
463 Alien Detainee
442 Employment
510 Motions to Vacate
Sentence
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Accommodations
530 General
535 Death Penalty
445 Amer. w/Disabilities
Employment
Other:
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Other
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Conditions of
Confinement
V. ORIGIN (Place an X in One Box Only)

1 Original
Proceeding
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
BANKRUPTCY
625 Drug Related Seizure

of Property 21 USC 881
690 Other
422 Appeal 28 USC 158

423 Withdrawal
28 USC 157
PROPERTY RIGHTS
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830 Patent
840 Trademark
LABOR
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Act
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Relations
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Leave Act
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Income Security Act
SOCIAL SECURITY
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864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS

870 Taxes (U.S. Plaintiff
or Defendant)
871 IRSThird Party
26 USC 7609
IMMIGRATION
462 Naturalization Application
465 Other Immigration
Actions
4 Reinstated or
Reopened
5 Transferred from
Another District
6 Multidistrict
LitigationTransfer
(specify)
OTHER STATUTES
375 False Claims Act
376 Qui Tam (31 USC
3729(a))
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Corrupt Organizations
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Exchange
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Act
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Act/Review or Appeal of
Agency Decision
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State Statutes
8 Multidistrict
LitigationDirect File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
VI. CAUSE OF ACTION
Brief description of cause:
DEMAND $
VII. REQUESTED IN
CHECK IF THIS IS A CLASS ACTION
UNDER RULE 23, Fed. R. Civ. P.
COMPLAINT:
VIII. RELATED CASE(S),
IF ANY (See instructions):
JUDGE
IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2)
(Place an X in One Box Only)
SAN FRANCISCO/OAKLAND
DATE: 11/11/2016
Print
CHECK YES only if demanded in complaint:

JURY DEMAND:
Yes
DOCKET NUMBER
SAN JOSE
EUREKA-MCKINLEYVILLE
SIGNATURE OF ATTORNEY OF RECORD: /Donald L. Beeson/
Save As...
No
Reset
JS-CAND 44 (rev. 07/16)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS-CAND 44

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service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial
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submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
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(2) United States defendant. When the plaintiff is suing the United States, its officers or agencies, place an X in this box.
(3) Federal question. This refers to suits under 28 USC 1331, where jurisdiction arises under the Constitution of the United States, an amendment
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takes precedence, and box 1 or 2 should be marked.
(4) Diversity of citizenship. This refers to suits under 28 USC 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.)
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Mark this section for each principal party.
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sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
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Please note that there is no Origin Code 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statute.
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section blank. For all other cases, identify the divisional venue according to Civil Local Rule 3-2: the county in which a substantial part of the
events or omissions which give rise to the claim occurred or in which a substantial part of the property that is the subject of the action is situated.
Date and Attorney Signature. Date and sign the civil cover sheet.

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Charcoal Companion v. Medium Rare - Complaint

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Case 4:16-cv-06564 Document 1 Filed 11/11/16 Page 1 of 8

BEESON SKINNER BEVERLY, LLP

Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b) and

Case 4:16-cv-06564 Document 1 Filed 11/11/16 Page 2 of 8

This case is exempt from intradistrict assignment pursuant to Civil L. R. 3-

2(c) because it includes intellectual property claims.

Plaintiff CCI is a California corporation having its principal business offices

located at 5905 Christie Avenue, Emeryville, California 94608.

On information and belief, Defendant Cave Tools is a Pennsylvania

Plaintiff CCI designs, markets, and distributes barbecue accessory

April 7, 2015, and a copy of which is attached hereto as Exhibit A.

Case 4:16-cv-06564 Document 1 Filed 11/11/16 Page 3 of 8

COMPLAINT FOR UTILITY PATENT INFRINGEMENT AND DESIGN PATENT INFRINGEMENT

Patent, Figs. 1, 4A, 4B, 4C, 6A and 6B.

attached hereto as Exhibit B.

Upon information and belief, Defendant Cave Tools markets, distributes,

directly to consumers through their official website at www.cavetools.com, as well as

through third-party online retailers and e-commerce platforms such as Amazon.com.

owned by Plaintiff CCI.

Case 4:16-cv-06564 Document 1 Filed 11/11/16 Page 4 of 8

COMPLAINT FOR UTILITY PATENT INFRINGEMENT AND DESIGN PATENT INFRINGEMENT

FIRST CAUSE OF ACTION

INFRINGEMENT OF U.S. PATENT NO. 8,997,639

Plaintiff CCI incorporates the allegations of paragraphs 1-16 above.

Case 4:16-cv-06564 Document 1 Filed 11/11/16 Page 5 of 8

COMPLAINT FOR UTILITY PATENT INFRINGEMENT AND DESIGN PATENT INFRINGEMENT

container body being sized and shaped to approximately conform to the

trough region between adjacent heat deflector bars of a cooking grill on

which the smoker box is to be used; and

plurality of openings to allow smoke to be released over a relatively large

flavor food on a cooking grate above the smoker box.

Case 4:16-cv-06564 Document 1 Filed 11/11/16 Page 6 of 8

COMPLAINT FOR UTILITY PATENT INFRINGEMENT AND DESIGN PATENT INFRINGEMENT

SECOND CAUSE OF ACTION

INFRINGEMENT OF U.S. DESIGN PATENT NO. D585,702

Plaintiff CCI incorporates the allegations of paragraphs 1-16 above.

CLAIM FOR RELIEF

As a direct and proximate consequence of Defendant Cave Toolss

Case 4:16-cv-06564 Document 1 Filed 11/11/16 Page 7 of 8

COMPLAINT FOR UTILITY PATENT INFRINGEMENT AND DESIGN PATENT INFRINGEMENT

Patent by Defendant Cave Tools has been willful and deliberate.

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

Cave Tools was willful and deliberate.

Pursuant to 35 U.S.C. 289, Plaintiff CCI is entitled to Defendant Cave

10 interest on such award.

Pursuant to 35 U.S.C. 283, Plaintiff CCI is entitled to temporary and

PRAYER FOR RELIEF

16 against Defendant Cave Tools as follows:

18 Design Patent owned by Plaintiff CCI.

Declaring that such infringement has been willful and deliberate.

Preliminarily and permanently enjoining Defendant Cave Tools, including its

That Plaintiff CCI be awarded compensatory damages according to proof on

Case 4:16-cv-06564 Document 1 Filed 11/11/16 Page 8 of 8

COMPLAINT FOR UTILITY PATENT INFRINGEMENT AND DESIGN PATENT INFRINGEMENT

of such infringements under 35 U.S.C. 289, and pre-judgment and post-judgment

interest on such award.

infringement pursuant to 35 U.S.C. 284;

Awarding Plaintiff CCI reasonable attorneys fees pursuant to 35 U.S.C.

10 just and proper.

DEMAND FOR A JURY TRIAL

Pursuant to Fed. R. Civ. P. 38(b), Plaintiff CCI hereby demands a trial by

13 jury on all claims asserted herein.

CERTIFICATION OF INTERESTED ENTITIES OR PARTIES

16 other than the named parties, there is no such interest to report.