ThermaPure v. Water Out Oregon et. al.

7/28/2019 ThermaPure v. Water Out Oregon et. al.

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COMPLAINT FOR INFRINGEMENT OF U.S. PATENTNO. 6,327,812 - 1CASE NO.

SUMMIT LAWGROUP PLLC315FIFTHAVENUE SOUTH,SUITE 1000

SEATTLE,WASHINGTON 98104-2682Telephone: (206) 676-7000

Fax: (206) 676-7001

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UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF WASHINGTON

AT TACOMA

THERMAPURE, INC., a California

corporation,

Plaintiff,

v.

WATER OUT OREGON, an Oregoncorporation, and WATER OUT OF OREGON,

INC., an Oregon corporation doing business as

Water Out Oregon,

Defendants.

CASE NO.

COMPLAINT FOR INFRINGEMENT OF

U.S. PATENT NO. 6,327,812

JURY TRIAL DEMANDED

For its complaint against WATER OUT OREGON and WATER OUT OF OREGON, Inc.

dba Water Out Oregon (collectively Defendants), Plaintiff THERMAPURE, INC.

(ThermaPure) alleges as follows:

JURISDICTION AND VENUE

1. This is a civil action arising in part under laws of the United States relating topatents (35 U.S.C. 271, 281, 283, 284, and 285). This Court has federal jurisdiction of such

federal question claims pursuant to 28 U.S.C. 1331 and 1338(a).

2. The acts and transactions complained of herein were conceived, carried out, madeeffective, and had effect within the State of Washington and within this district, among other

places. Venue is proper under 28 U.S.C. 1391(b), 1391(c) and 1400(a), because Plaintiff is


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informed and believes that Defendants have committed acts of infringement in the State of

Washington, Clark County. Plaintiff is informed and believes that Defendants acts of willful

patent infringement arose out of transactions and occurrences in Clark County.

THE PARTIES

3. Plaintiff ThermaPure, Inc., is a corporation duly organized and existing under thelaws of the State of California with its principal place of business located at 180 Canada Larga

Road, Ventura, California 93001.

4. Defendant Water Out Oregon (Water Out Oregon) is a corporation organized andexisting under the laws of the State of Oregon. Plaintiff is informed and believes that Water Out

Oregon maintains its principal place of business at 433 N. Thompson Street, Portland, Oregon

97227.

5. Defendant Water Out of Oregon, Inc. (Water Out Oregon, Inc.) is a corporationorganized and existing under the laws of the State of Oregon which does business as Water Out

Oregon. Plaintiff is informed and believes that Water Out Oregon maintains its principal place of

business at 433 N. Thompson Street, Portland, Oregon 97227.

6. Plaintiff is informed and believes, and on that basis alleges that Water Out Oregonis the successor corporation of Water Out Oregon, Inc. for the reasons that: (1) Defendants were,

and are, located at the same address; (2) Defendants operate through the same internet address

(www.waterout-oregon.com); and, (3) Water Out Oregon registered for corporate status the same

day that Water Out Oregon, Inc., filed articles of dissolution with the Oregon Secretary of State.

CLAIM FOR RELIEF

INFRINGEMENT OF U.S. PATENT NO. 6,327,812

7. Plaintiff incorporates by reference the preceding allegations of this Complaint asthough fully set forth herein.

8. Plaintiff is in the business of using heat to remediate homes and commercialbuildings so that they are free of mold, viruses, bacteria, insects (such as termites, bed buds, wood


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boring beetles, cockroaches, scorpions, and dust mites) and rodents. ThermaPures patented and

proprietary processes are also used in construction dryout and in the removal of toxic chemicals

such as volatile organic compounds.

9. Plaintiff owns all right, title, interest in and has standing to sue for the infringementof United States Patent No. 6,327,812 entitled, Method of Killing Organisms and Removal of

Toxins in Enclosures which was duly granted by the United States Patent and Trademark Office

on December 11, 2001 (the 812 Patent). A true and correct copy of the 812 Patent is attached

as Exhibit 1.

10. The 812 Patent is valid and enforceable.11. Defendants have infringed and continue to infringe the 812 Patent by making,

using, selling, or offering to sell in the United States products, devices or methods known as

Water Out that embody or otherwise practice one or more of the claims of the 812 Patent, or by

otherwise contributing to infringement or inducing others to infringe the 812 Patent. Plaintiff is

informed and believes that the acts of infringement occurred in the State of Washington, Clark

County.

12. The infringing activities of Defendants are and have been without theauthorization of Plaintiff.

13. On information and belief, Plaintiff alleges that Defendants infringement of 812Patent is and has been willful and deliberate. Due to the intentional nature of Defendants acts,

this is an exceptional case in which Plaintiff is entitled to treble damages, attorneys fees and costs

pursuant to 35 U.S.C. 284 and 285.

14. Defendants had knowledge of the lawsuit and resulting verdict entered in the actionentitled, ThermaPure, Inc. v. Water Out Drying Corp., United States District Court for the Eastern

District of Texas, Case No. 2:06-CV-453, in which Water Out equipment, which is used by

Defendants, was found to infringe ThermaPures rights in the 812 Patent. Defendants learned of

the lawsuit and verdict of infringement through: (1) information provided to them by Water Out


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Drying Corp. which advised of the verdict of infringement; (2) ThermaPures industry press

releases; and (3) discussions with others in the industry. In spite of this knowledge that it is

infringing the 812 Patent, Defendant has continued to use the infringing process/device.

15. As members of the remediation industry, Defendants appreciate the scope of the812 Patent. Notwithstanding Defendants appreciation and knowledge of the value and scope of

the 812 Patent, they have infringed the 812 Patent.

16. As a direct and proximate result of Defendants infringement, contributoryinfringement and/or inducement to infringe the 812 Patent, Plaintiff has been and continues to be

damaged in an amount to be proven at trial.

17. Defendants infringement is ongoing and has caused, and, unless enjoined andrestrained by this Court, will continue to cause Plaintiff great and irreparable injury to, among

other things, Plaintiffs good will, business reputation, and market share. Plaintiff has no adequate

remedy at law for the harm caused by Defendants acts. Plaintiff is therefore entitled to injunctive

relief enjoining and restraining Defendants, and their respective officers, agents, servants, and

employees, and all persons acting in concert with them, and each of them, from further

infringement of the 812 Patent.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Water Out as follows:

A. For a judicial determination and declaration that Defendants have infringed the812 Patent;

B. For a judicial determination and decree that Defendants infringement of the 812Patent has been willful;

C. For damages resulting from Defendants infringement of the 812 Patent, and thetrebling of such damages because of the willful and deliberate nature of Defendants infringement;


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D. In the alternative, an order that Defendants pay Plaintiff all profits, gains, andadvantaged they have received or obtained from their unlawful conduct, in an amount to be proven

at trial;

E. In the alternative, that a reasonable royalty for Defendants infringement beawarded to Plaintiff pursuant to 35 U.S.C. 284;

F. For injunctive relief enjoining against further infringement of the 812 Patent byDefendants, their officers, directors, shareholders, agents, servants, employees, and all other

entities and individuals acting in concert with them or on their behalf;

G. For an assessment of prejudgment interest on damages;H. For a declaration that this is an exceptional case under 35 U.S.C. 285 and for an

award of attorneys fees and costs in this action;

I. For such other and further relief as the Court deems just and equitable.DATED this 18th day of November, 2011.

SUMMIT LAW GROUP PLLC

By /s/ Philip S. McCuneBy /s/ Lawrence C. Locker

Philip S. McCune, WSBA #21081Lawrence C. Locker, WSBA #[email protected]@summitlaw.com

And by

Sean M. Kneafsey (pro hac vice pending)Shaun Swiger (pro hac vice pending)Kneafsey & Friend LLP800 Wilshire Blvd., Suite 710Los Angeles, CA 90017

Tel: (213) 892-1200Fax: (213) [email protected]@kneafseyfriend.com

Attorneys for Plaintiff ThermaPure, Inc.


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EXHIBIT 1

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ThermaPure v. Water Out Oregon et. al.

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