united states district court southern district of … · 2019. 12. 2. · pressure airfryer and...
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
SHARKNINJA OPERATING LLC,
Plaintiff,
v.
EMERIL LAGASSE,
Defendant.
TRISTAR PRODUCTS, INC.,
Defendant/Counterclaim Plaintiff
v.
SHARKNINJA OPERATING LLC
DANIEL R. GIBSON, ESQ.
CANTOR COLBURN LLP
PEDRO J. LOPEZ-BALDRICH, ESQ.
Counterclaim Defendants
Civil Action No. 19-cv-24114
JURY TRIAL DEMANDED
DEFENDANT TRISTAR PRODUCT INC.’S ANSWER TO PLAINTIFF’S COMPLAINT
AND COUNTERCLAIMS
Defendant Tristar Products, Inc. (“Tristar”) hereby joins Daniel R. Gibson, the Law Firm
of Cantor Colburn LLP and Pedro J. Lopez-Baldrich as Counterclaim Defendants pursuant to
Fed. R. Civ. P. 20(a)(2) and responds to the Complaint (Dkt. 1) filed by Plaintiff SharkNinja
Operating LLC (“SharkNinja”) as follows:
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FACTUAL BACKGROUND
1. On information and belief, SharkNinja, its Prosecuting Attorney Daniel R.
Gibson, the law firm of Cantor Colburn LLP and SharkNinja’s Chief Legal Officer, Pedro J.
Lopez-Baldrich, knowingly participated in a scheme to tortiously interfere with Tristar’s
business by fraudulently obtaining and enforcing invalid patents for the purpose of limiting
competition and removing Tristar from the market.
2. SharkNinja also intentionally committed fraud by claiming to invent a combined
pressure cooker and air fryer when others had created a multifunction cooking device long before
SharkNinja.
3. The pressure cookers and air fryers distributed by Tristar lead the marketplace in
ongoing innovation, while SharkNinja is a late entrant falsely claiming to be inventors. Tristar
introduced a pressure cooker in 2002 and has sold millions of units since its introduction. Tristar
also introduced an air fryer in 2012 which has also sold millions of units since its introduction.
Using one pot with two separate lids relying on existing pressure cooker technology and existing
air fryer technology was not novel on the effective filing date of SharkNinja’s patent
applications.
4. Multi-function pots that simply involve substituting one type of cooking lid for
another were well known in the prior art. In June of 2016, a Chinese utility patent application
was filed by Zhejiang Shangchu Cookware Company that detailed a combination cooker that
used one pot and one lid for pressure cooking and another lid for air frying. This patent issued at
Chinese Patent No. CN 206119969 (“the CN ‘969 patent”). Zhejiang Shangchu is independent
of SharkNinja.
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5. Zhejiang Shangchu also filed a related invention patent application on the same
day as the ’696 patent, publication No. CN105902144 (“the CN ‘144 publication”), also
disclosing a combination cooker that used one pot and one lid for pressure cooking and another
lid for air frying. Unlike a utility application that is not substantively reviewed, the Chinese
Patent Office reviewed and denied this patent application based on prior art, concluding that a
combined pressure cooker and air fryer was not inventive even in June of 2016.
6. SharkNinja was aware of this prior invention by Zhejiang Shangchu. Zhejiang
Shangchu displayed a prototype of this combination air fryer and pressure cooker at the Import
and Export Fair in Canton, China in April 2018.
7. On information and belief, this prototype was shown and offered for sale at the
fair to CD Investments, a private equity company based in Beijing, China, that had earlier
acquired a significant equity interest in SharkNinja in August of 2017. On information and
belief, this prototype was also offered for sale at the fair to a U.S. importer for distribution in the
U.S.
8. The accused product, the Emeril Lagasse Pressure AirFryer, is covered by CN
Patent 209610822, an application filed in December 2018 by Tristar’s supplier, Zhongshan
Yalesi Electric Industrial Company.
9. The Emeril Lagasse Pressure AirFryer was publicly displayed and offered for sale
at the Chicago Housewares Show from March 10th to 13th, 2019 to retailers including Walmart,
Amazon, QVC, Bed Bath & Beyond, and Target.
10. On March 18, 2019, approximately one week after the public display of Tristar’s
Emeril Lagasse Pressure AirFryer, SharkNinja filed the applications that led to the asserted
patents (U.S. Patent Nos. 10,390,656; 10,413,121 and 10,413,122).
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11. Each of the asserted patents claim priority as a continuation application to U.S.
Application No. 16/059,876. However, each of the asserted patents add new disclosures in their
specifications that were not present in the parent application.
12. The new disclosure added in each asserted patent is different and directly supports
the new scope of elements claimed in each respective patent—a practice plainly aimed at
providing written description support for these claims that would otherwise be lacking.
13. SharkNinja and its prosecuting attorney(s), including at least Daniel R. Gibson of
Cantor Colburn LLP (Reg. No. 56,539), knew that new matter had been added to each of the
asserted patents, yet intentionally mischaracterized these patents as continuations when filed with
the United Stated Patent and Trademark Office (“USPTO”).
14. These fraudulent acts were done with the intent to improperly claim priority to an
earlier filed application so that SharkNinja could accuse the Emeril Lagasse Pressure AirFryer of
infringement, despite the accused device having been displayed and offered for sale before the
asserted patents were filed. Based on this addition of new matter, the accused Emeril Lagasse
Pressure AirFryer and SharkNinja’s own Foodi product are invalidating prior art to the asserted
patents.
15. In addition, on information and belief, during the prosecution of the asserted
patents, SharkNinja and its’s prosecuting attorney(s), including at least Daniel R. Gibson of
Cantor Colburn LLP, filed disclosures of more than 1,300 prior art references with the USPTO
without analyzing each of the submitted references for relevance.
16. Upon information and belief, this blizzard of prior art was intentionally filed by
SharkNinja and its prosecuting attorney(s) in order to hide relevant refences, such as the CN ‘969
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patent and CN ‘144 publication, a practice that Courts in this District and elsewhere have found
to be further evidence of inequitable conduct and fraud at the Patent Office.
17. SharkNinja and its attorney(s) including at least Daniel R. Gibson of Cantor
Colburn LLP have filed approximately 20 more continuation applications covering the same
combined pressure cooker and air fryer product. Like the asserted patents, these continuations
also falsely claim priority to application no. 16/059,876, despite new matter being provided in
the specifications, and also cite more than 1,300 prior art references providing further evidence
of an ongoing intent to commit an active fraud on the Patent Office by obtaining future invalid
patents.
18. Tristar has advantageous business relations with a large number of retailers that
carry and sell Tristar products, including the accused Emeril Lagasse Pressure Air Fryer.
19. Once the Complaint in this litigation was filed, SharkNinja and its in-house legal
counsel, including at least Pedro J. Lopez-Baldrich, wrote letters to several retailers that were
selling or planning to sell the Emeril Lagasse Pressure AirFryer alerting the retailer of the
fraudulently obtained patents and present litigation based on these patents.
20. As a result of the inequitable and fraudulent acts conducted by SharkNinja, its
prosecuting attorneys, including at least Daniel R. Gibson and the firm of Cantor Colburn, and
SharkNinja’s Chief Legal Officer Pedro J. Lopez-Baldrich, at least one retailer has refrained
from carrying the accused product and Tristar has suffered a loss of good will with many other
retailers.
21. Evidence of SharkNinja’s bad acts is further supported by its baseless suit naming
Emeril Lagasse as a defendant. Emeril Lagasse is a justly famous chef whose role has been to
use and endorse the accused product in an infomercial created in February 2019. He also
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appeared at the Housewares Show in March 2019 where he demonstrated the accused unit and
other products. On information and belief, SharkNinja knew or should have known that the
infomercial in which Emeril Lagasse appears was created before March 18, 2019. On
information and belief, SharkNinja knowingly (or recklessly) and falsely accused Emeril Lagasse
of patent infringement based on his actions that occurred before SharkNinja had even filed the
patent applications asserted in this lawsuit. Furthermore, SharkNinja asserted in its complaint
that Emeril Lagasse is a resident of the Southern District of Florida and has a restaurant in this
district. SharkNinja’s assertions are knowingly false as evidenced by SharkNinja’s harassing
service of the complaint outside this district in Emeril Lagasse’s restaurant in Miramar Beach,
near Fort Walton (publicly and during normal business hours).
22. Even if the asserted patents were valid and could claim priority prior to the release
of the Emeril Lagasse Pressure Air Fryer, the accused product does not infringe these patents at
least because it does not include a hinged lid that is movable relative to the housing as claimed
and exclusively disclosed in the asserted patents.
ANSWER
1. Tristar admits that SharkNinja filed a Complaint that contains allegations of
patent infringement against Tristar. Tristar denies these allegations.
NATURE OF ACTION
2. Tristar admits that the Complaint purports to allege claims of patent infringement
in violation of United States laws 35 U.S.C. § 271 and 281-285. Tristar denies it has infringed.
3. Tristar is without sufficient information to admit or deny the allegations of
paragraph 3, and on that basis, Tristar denies all allegations therein.
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4. Tristar admits it is a corporation organized and existing under the laws of Florida.
Tristar denies the remaining allegations of paragraph 4.
5. Tristar admits the allegations of paragraph 5.
6. Tristar is without sufficient information to admit or deny the allegations of
paragraph 6, and on that basis, Tristar denies all allegations therein.
JURISDICTION AND VENUE
7. Tristar admits the allegations of paragraph 7.
8. Tristar admits that this Court has personal jurisdiction over Tristar and that Tristar
conducts business in this District and distributes products within the State of Florida. Tristar
denies committing any acts of infringement. Tristar is without sufficient information to admit or
deny the allegations of paragraph 8 pertaining to Mr. Lagasse, and on that basis, Tristar denies
those allegations.
9. Tristar denies the allegations of paragraph 9.
10. Tristar denies the allegations of paragraph 10 with respect to Tristar. Tristar is
without sufficient information to admit or deny the allegations of paragraph 10 pertaining to Mr.
Lagasse, and on that basis, Tristar denies those allegations.
11. Tristar admits that it has sold or offered the Emeril Lagasse Pressure AirFryer for
sale in this District. Tristar denies the remaining allegations of paragraph 11 with respect to
Tristar. Tristar is without sufficient information to admit or deny the allegations of paragraph 11
pertaining to Mr. Lagasse, and on that basis, Tristar denies those allegations.
PLAINTIFF SHARKNINJA
12. Tristar is without sufficient information to admit or deny the allegations of
paragraph 12, and on that basis, Tristar denies all allegations therein.
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13. Tristar is without sufficient information to admit or deny the allegations of
paragraph 13, and on that basis, Tristar denies all allegations therein.
14. Tristar is without sufficient information to admit or deny the allegations of
paragraph 14, and on that basis, Tristar denies all allegations therein.
THE NINJA FOODI
15. Tristar is without sufficient information to admit or deny the allegations of
paragraph 15, and on that basis, Tristar denies all allegations therein.
16. Tristar is without sufficient information to admit or deny the allegations of
paragraph 16, and on that basis, Tristar denies all allegations therein.
17. Tristar is without sufficient information to admit or deny the allegations of
paragraph 17, and on that basis, Tristar denies all allegations therein.
18. Tristar is without sufficient information to admit or deny the allegations of
paragraph 18, and on that basis, Tristar denies all allegations therein.
19. Tristar is without sufficient information to admit or deny the allegations of
paragraph 19, and on that basis, Tristar denies all allegations therein.
20. Tristar is without sufficient information to admit or deny the allegations of
paragraph 20, and on that basis, Tristar denies all allegations therein.
21. Tristar is without sufficient information to admit or deny the allegations of
paragraph 21, and on that basis, Tristar denies all allegations therein.
22. Tristar is without sufficient information to admit or deny the allegations of
paragraph 22, and on that basis, Tristar denies all allegations therein.
23. Tristar is without sufficient information to admit or deny the allegations of
paragraph 23, and on that basis, Tristar denies all allegations therein.
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DEFENDANTS’ INFRINGING PRODUCT
24. Tristar admits the allegations of paragraph 24.
25. Tristar admits that it sells the Emeril Lagasse Pressure AirFryer and uses the
slogan “the pressure cooker that air fries.” Tristar denies that it is an infringing product.
26. Tristar admits that it introduced the Emeril Lagasse Pressure AirFryer to market
approximately one year after Plaintiff alleges the Foodi was released. Tristar denies the
remaining allegations of paragraph 26.
27. Tristar denies that the Emeril Lagasse Pressure AirFryer is an infringing product,
but otherwise admits the allegations of paragraph 27.
28. Tristar admits that it has contracted with Mr. Lagasse to appear in a recorded
infomercial endorsing and using the Emeril Lagasse Pressure AirFryer, to use Mr. Lagasse’s
name in the name of the product, to use Mr. Lagasse’s name and likeness in advertising
materials, advertisements, packaging and in-store displays. Tristar denies the remaining
allegations of paragraph 26.
29. Tristar is without sufficient information to admit or deny the allegations of
paragraph 29, and on that basis, Tristar denies all allegations therein.
30. Tristar denies the allegations in paragraph 30.
31. Tristar denies the allegations in paragraph 31.
32. Tristar admits that it uses the slogan “the pressure cooker that air fries” in
advertisements, infomercials and retail displays for the Emeril Lagasse Pressure AirFryer.
Tristar denies the remaining allegations of paragraph 32.
33. Tristar denies the allegations in paragraph 33.
34. Tristar denies the allegations in paragraph 34.
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SHARKNINJA’S ASSERTED PATENTS
35. Tristar denies the allegations in paragraph 35.
36. Tristar admits that the ‘656 patent is entitled “Cooking Device and Components
Thereof” and appears to have issued on August 27, 2019. Tristar is without sufficient
information to admit or deny the remaining allegations of paragraph 36, and on that basis, Tristar
denies those allegations.
37. Tristar admits that a copy of the ’656 patent appears to be attached as Exhibit 1.
Tristar denies that each and every claim of the ‘656 patent is valid and enforceable. Tristar is
without sufficient information to admit or deny the remaining allegations of paragraph 37, and
on that basis, denies those allegations.
38. Tristar admits that the ‘121 patent is entitled “Cooking Device and Components
Thereof” and appears to have issued on September 17, 2019. Tristar is without sufficient
information to admit or deny the remaining allegations of paragraph 38, and on that basis, Tristar
denies those allegations.
39. Tristar admits that a copy of the ’121 patent appears to be attached as Exhibit 2.
Tristar denies that each and every claim of the ‘121 patent is valid and enforceable. Tristar is
without sufficient information to admit or deny the remaining allegations of paragraph 39, and
on that basis, denies those allegations.
40. Tristar admits that the ‘122 patent is entitled “Cooking Device and Components
Thereof” and appears to have issued on September 17, 2019. Tristar is without sufficient
information to admit or deny the remaining allegations of paragraph 40, and on that basis, Tristar
denies those allegations.
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41. Tristar admits that a copy of the ’122 patent appears to be attached as Exhibit 3.
Tristar denies that each and every claim of the ‘122 patent is valid and enforceable. Tristar is
without sufficient information to admit or deny the remaining allegations of paragraph 41, and
on that basis, denies those allegations.
COUNT ONE: INFRINGEMENT OF U.S. PATENT NO. 10,390,656
42. Tristar realleges and incorporates by reference its answers to paragraphs 1-41 of
the Complaint as set forth above.
43. Tristar denies the allegations of paragraph 43 with respect to Tristar. Tristar is
without sufficient information to admit or deny the allegations of paragraph 43 pertaining to Mr.
Lagasse, and on that basis, Tristar denies those allegations.
44. The allegations in Paragraph 44 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 44.
45. The allegations in Paragraph 45 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 45.
46. The allegations in Paragraph 46 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 46.
47. The allegations in Paragraph 47 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 44.
48. The allegations in Paragraph 48 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 44.
49. The allegations in Paragraph 49 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 44.
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50. The allegations in Paragraph 50 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 44.
51. Tristar denies the allegations of paragraph 51 with respect to Tristar. Tristar is
without sufficient information to admit or deny the allegations of paragraph 51 pertaining to Mr.
Lagasse, and on that basis, Tristar denies those allegations.
52. Tristar admits that it gained knowledge of the ‘656 patent through the filing of the
Complaint. Tristar denies the remaining allegations of paragraph 52 with respect to Tristar.
Tristar is without sufficient information to admit or deny the allegations of paragraph 52
pertaining to Mr. Lagasse, and on that basis, Tristar denies those allegations.
53. Tristar denies the allegations in paragraph 53.
54. Tristar admits that Mr. Lagasse appears on a nationally-televised infomercial, in
online advertisements and in retail stores. Tristar is without sufficient information to admit or
deny the allegations of paragraph 54 pertaining to Mr. Lagasse, and on that basis, Tristar denies
those allegations.
55. Tristar admits that it gained knowledge of the ‘656 patent through the filing of the
Complaint. Tristar denies the remaining allegations of paragraph 55.
56. Tristar denies the allegations in paragraph 56.
57. Tristar denies the allegations in paragraph 57.
58. Tristar denies the allegations in paragraph 58.
59. Tristar denies the allegations in paragraph 59.
COUNT TWO: INFRINGEMENT OF U.S. PATENT NO. 10,413,121
60. Tristar realleges and incorporates by reference its answers to paragraphs 1-59 of
the Complaint as set forth above.
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61. Tristar denies the allegations of paragraph 61 with respect to Tristar. Tristar is
without sufficient information to admit or deny the allegations of paragraph 61 pertaining to Mr.
Lagasse, and on that basis, Tristar denies those allegations.
62. The allegations in Paragraph 62 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 62.
63. The allegations in Paragraph 63 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 63.
64. The allegations in Paragraph 64 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 64.
65. The allegations in Paragraph 65 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 65.
66. The allegations in Paragraph 66 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 66.
67. Tristar denies the allegations of paragraph 67 with respect to Tristar. Tristar is
without sufficient information to admit or deny the allegations of paragraph 67 pertaining to Mr.
Lagasse, and on that basis, Tristar denies those allegations.
68. Tristar admits that it gained knowledge of the ‘121 patent through the filing of the
Complaint. Tristar denies the remaining allegations of paragraph 68 with respect to Tristar.
Tristar is without sufficient information to admit or deny the allegations of paragraph 68
pertaining to Mr. Lagasse, and on that basis, Tristar denies those allegations.
69. Tristar denies the allegations in paragraph 69.
70. Tristar admits that Mr. Lagasse appears on a nationally-televised infomercial, in
online advertisements and in retail stores. Tristar is without sufficient information to admit or
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deny the allegations of paragraph 70 pertaining to Mr. Lagasse, and on that basis, Tristar denies
those allegations.
71. Tristar admits that it gained knowledge of the ‘121 patent through the filing of the
Complaint. Tristar denies the remaining allegations of paragraph 71.
72. Tristar denies the allegations in paragraph 72.
73. Tristar denies the allegations in paragraph 73.
74. Tristar denies the allegations in paragraph 74.
75. Tristar denies the allegations in paragraph 75.
COUNT THREE: INFRINGEMENT OF U.S. PATENT NO. 10,413,122
76. Tristar realleges and incorporates by reference its answers to paragraphs 1-75 of
the Complaint as set forth above.
77. Tristar denies the allegations of paragraph 77 with respect to Tristar. Tristar is
without sufficient information to admit or deny the allegations of paragraph 77 pertaining to Mr.
Lagasse, and on that basis, Tristar denies those allegations.
78. The allegations in Paragraph 78 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 78.
79. The allegations in Paragraph 79 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 79.
80. The allegations in Paragraph 80 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 80.
81. The allegations in Paragraph 81 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 81.
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82. The allegations in Paragraph 82 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 82.
83. The allegations in Paragraph 83 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 83.
84. The allegations in Paragraph 82 state a legal conclusion, to which no response is
required. To the extent a response is required, Tristar denies the allegations in Paragraph 84.
85. Tristar denies the allegations of paragraph 85 with respect to Tristar. Tristar is
without sufficient information to admit or deny the allegations of paragraph 85 pertaining to Mr.
Lagasse, and on that basis, Tristar denies those allegations.
86. Tristar admits that it gained knowledge of the ‘122 patent through the filing of the
Complaint. Tristar denies the remaining allegations of paragraph 86 with respect to Tristar.
Tristar is without sufficient information to admit or deny the allegations of paragraph 86
pertaining to Mr. Lagasse, and on that basis, Tristar denies those allegations.
87. Tristar denies the allegations in paragraph 87.
88. Tristar admits that Mr. Lagasse appears on a nationally-televised infomercial, in
online advertisements and in retail stores. Tristar is without sufficient information to admit or
deny the allegations of paragraph 88 pertaining to Mr. Lagasse, and on that basis, Tristar denies
those allegations.
89. Tristar admits that it gained knowledge of the ‘122 patent through the filing of the
Complaint. Tristar denies the remaining allegations of paragraph 89.
90. Tristar denies the allegations in paragraph 90.
91. Tristar denies the allegations in paragraph 91.
92. Tristar denies the allegations in paragraph 92.
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93. Tristar denies the allegations in paragraph 93.
DEMAND FOR JURY TRIAL
94. Tristar admits that SharkNinja demands a jury trial.
PRAYER FOR RELIEF
95. Tristar denies that SharkNinja is entitled to any of the relief sought in its request
or any relief whatsoever.
AFFIRMATIVE DEFENSES
96. Tristar pleads the following as affirmative and other defenses to the Complaint.
In asserting such defenses, Tristar does not concede that it bears the burden of proof as to any of
them. Discovery has yet to begin, and therefore Tristar reserves the right to amend, modify or
expand these defenses, including but not limited to those defenses revealed during discovery.
FIRST AFFIRMATIVE DEFENSE: NONINFRINGEMENT
97. Tristar repeats and re-alleges the allegations of the preceding Paragraphs as well
as those of its Counterclaims as if set forth fully herein.
98. Tristar has not infringed, and does not currently infringe the asserted patents,
willfully, or otherwise, either literally or by application of the doctrine of equivalents.
SECOND AFFIRMATIVE DEFENSE: INVALIDITY
99. Tristar repeats and re-alleges the allegations of the preceding Paragraphs as well
as those of its Counterclaims as if set forth fully herein.
100. The claims of the asserted patents are invalid because they fail to satisfy one or
more of the requirements of patentability specified in 35 U.S.C. § 1, et seq., including but not
limited to, 35 U.S.C. §§ 102, 103 and 112.
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THIRD AFFIRMATIVE DEFENSE: LIMITATIONS OF DAMAGES
101. Tristar repeats and re-alleges the allegations of the preceding Paragraphs as well
as those of its Counterclaims as if set forth fully herein.
102. SharkNinja’s claims for relief are barred, at least in part, by one or more of 35
U.S.C. §§ 286 and 287.
FOURTH AFFIRMATIVE DEFENSE: ADEQUATE REMEDY AT LAW
103. Tristar repeats and re-alleges the allegations of the preceding Paragraphs as well
as those of its Counterclaims as if set forth fully herein.
104. SharkNinja is not entitled to any injunctive relief because any alleged injury to
SharkNinja is not immediate or irreparable, and SharkNinja has an adequate remedy at law.
FIFTH AFFIRMATIVE DEFENSE: FAILURE TO STATE A CLAIM FOR WILLFUL
INFRINGEMENT
105. Tristar repeats and re-alleges the allegations of the preceding Paragraphs as well
as those of its Counterclaims as if set forth fully herein.
106. SharkNinja fails to state a claim against Tristar for willful infringement upon
which relief can be granted.
SIXTH AFFIRMATIVE DEFENSE: FAILURE TO STATE A CLAIM FOR INDIRECT
INFRINGEMENT
107. Tristar repeats and re-alleges the allegations of the preceding Paragraphs as well
as those of its Counterclaims as if set forth fully herein.
108. SharkNinja fails to state a claim against Tristar for contributory or induced
infringement upon which relief can be granted.
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SEVENTH AFFIRMATIVE DEFENSE: UNENFORCEABILITY
109. Tristar repeats and re-alleges the allegations of the preceding Paragraphs as well
as those of its Counterclaims as if set forth fully herein.
110. The asserted patents are unenforceable due to inequitable conduct before the
Patent Office by SharkNinja and its attorney(s) during prosecution of the applications that led to
the asserted patents. The details of the inequitable conduct performed by SharkNinja and its
Attorney(s), including at least Daniel R. Gibson, is set forth in Paragraphs 12-73 of Tristar’s
Counterclaims, below, and is adopted by reference, repeated, and re-alleged as though set forth
fully herein.
EIGHTH AFFIRMATIVE DEFENSE: PATENT MISUSE
111. Tristar repeats and re-alleges the allegations of the preceding Paragraphs as well
as those of its Counterclaims as if set forth fully herein.
112. SharkNinja is barred from asserting the asserted patents against Tristar based on
the doctrine of patent misuse, because SharkNinja engaged in acts designed to impermissibly
broaden the scope of its patent rights and did so with anti-competitive effect.
COUNTERCLAIMS
Pursuant to Federal Rule of Civil Procedure 13, Defendant and Counter-Plaintiff
Tristar alleges the following against Counterclaim Defendants:
THE PARTIES
1. Tristar is a corporation organized under the laws of the State of Florida with its
principal place of business in Fairfield, NJ.
2. SharkNinja has averred that it is a corporation organized under the laws of the
Delaware with its principal place of business in Needham, Massachusetts.
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3. On information and belief, the Law Firm of Cantor Colburn LLP, is located in
Hartford Connecticut.
4. On information and belief, Daniel R. Gibson is a Partner at the Law Firm of
Cantor Colburn LLP, located in Hartford Connecticut.
5. On information and belief, Pedro J. Lopez-Baldrich is the Chief Legal Officer for
SharkNinja, located in Needham, Massachusetts.
JURISDICTION AND VENUE
6. This Court has jurisdiction over the subject matter of these Counterclaims under,
without limitation, 28 U.S.C. §§ 1331, 1367, 1338(a), 2201, and 2202.
7. Venue is proper in this District pursuant to 28 U.S.C. § 1391.
8. SharkNinja has subjected itself to personal jurisdiction and has consented to
venue in this Court because it has sued Tristar in this Court.
9. On information and belief, Counterclaim Defendants Daniel R. Gibson, the law
firm of Cantor Colburn LLP and Pedro J. Lopez-Baldrich all knowingly participated in a scheme
aimed at intentionally and tortiously interfering with Tristar’s business that culminated with the
filing of a lawsuit in this District and that caused harm to Tristar in this District directly related to
this lawsuit, including directly sending letters to Tristar’s customers in an attempt to interfere
with and harm Tristar’s business.
10. On information and belief, the law firm of Cantor Colburn also regularly does
business in the State of Florida and in this District.
ACTUAL CONTROVERSY
11. According to the Complaint, SharkNinja claims to be the assignee and owner of
all rights, title to, and interest in the asserted patents.
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SHARKNINJA’S FRAUD AND INEQUITABLE CONDUCT
BEFORE THE PATENT OFFICE
12. On August 9, 2017, SharkNinja filed U.S. Provisional Application No.
62/543,082 with the Patent Office.
13. On August 9, 2018, SharkNinja filed U.S. Application No. 16/059,876 allegedly
claiming priority to U.S. Provisional Application No. 62/543,082.
14. On March 18, 2019, SharkNinja filed the application that led to the ’656 patent,
which later issued on August 27, 2019, allegedly claiming priority to U.S. Application No.
16/059,876.
15. On March 18, 2019, SharkNinja filed the application that led to the ’121 patent,
which later issued on September 17, 2019, allegedly claiming priority to U.S. Application No.
16/059,876.
16. On March 18, 2019, SharkNinja filed the application that led to the ’122 patent,
which later issued on September 17, 2019, allegedly claiming priority to U.S. Application No.
16/059,876.
17. Title 37 of the Code of Federal Regulations (“C.F.R.”) § 1.56 imposes a duty of
candor and good faith on each individual associated with the filing and prosecution of a patent
application before the USPTO.
18. This duty requires applicants and their prosecuting agents and attorneys to
disclose to the USPTO all information that is material to the patentability of the application
being examined.
19. Failing to disclose material information, or making materially false
misrepresentations to the USPTO, with an intent to deceive, constitutes inequitable conduct.
Such inequitable conduct renders the affected patents unenforceable.
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20. A cooking device that combines a pressure cooker and an air fryer was known in
March of 2019 when SharkNinja first filed the applications that led to the asserted patents.
21. A combined pressure cooker and air fryer was also known on August 9, 2017
when SharkNinja filed its provisional application (62/543,082) from which the asserted patents
allegedly claim priority.
22. On information and belief, SharkNinja intentionally hid evidence of this prior art
during the prosecution of the asserted patents and their parent application.
23. A company named Zhejiang Shangchu Cookware Company based in China came
up with the idea to offer a product that combines pressure cooking and air frying capabilities at
least as early as June 30, 2016, as described in the CN ‘969 patent and the CN ‘144 publication.
24. The CN ‘969 patent is a Chinese patent entitled “Multifunctional Pot” filed by
and assigned to Zhejiang Shangchu (attached as Exhibit A).
25. The CN ‘969 patent was filed on June 30, 2016 and issued on April 26, 2017.
26. Figures 1 and 10 disclosed in the CN ‘969 patent below, show a cooking device
having a pressure cooking lid, left, and an air frying lid, right.:
27. The CN ‘144 publication (attached as Exhibit B) has identical disclosures.
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28. Zhejiang Shangchu created a product that practices the CN ‘969 patent and CN
‘144 publication.
29. Zhejiang Shangchu put that product on public display in April of 2018 at the
Import and Export Fair in Canton, China.
30. In August of 2017, CDH Investments, based in Beijing, China, acquired a
significant equity interest in SharkNinja.
31. Upon Information and belief, employees of CDH attended the Canton Fair in
2018.
32. Upon Information and belief, employees of CDH observed Zhejiang Shangchu’s
combined pressure cooker and air frying product on display in 2018.
33. A prototype of a combined pressure cooker and air fryer, below, was disclosed in
SharkNinja’s Provisional Patent Application No. 62/543,082, filed on August 9, 2017.
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34. This provisional application fails to disclose many of the elements claimed in the
asserted patents, including at least the following elements:
- “a food container having a hollow container interior and being positionable
within said hollow chamber, wherein an end of said food container extends
above said upper portion of said housing when said container is installed
within said hollow chamber”
- “a second lid adapted to cover said opening to said hollow chamber and
including a locking feature for locking said second lid to said housing”
- “wherein in a first cooking mode of the plurality of cooking modes, said at
least one heating element in said first lid is open to airflow between said at
least one heating element and said hollow chamber, and in a second cooking
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mode of said plurality of cooking modes, said at least one heating element in
said first lid is closed off to airflow between said at least one heating element
and said hollow chamber by said second lid”
35. During SharkNinja’s prosecution of the asserted patents, SharkNinja and its
Attorney(s), including at least Daniel R. Gibson of Cantor Colburn LLP (Reg. No. 56,539),
committed multiple fraudulent and inequitable acts.
36. SharkNinja and its Prosecuting Attorney(s) intentionally misclaimed priority of
the asserted patents to the parent application.
37. Each of the asserted patents were filed as continuation applications at the USPTO.
38. A continuation application must not contain new matter in order to properly claim
priority to a parent application.
39. Here, each of the three asserted patents were filed as continuation applications
despite each disclosing new matter in the specification.
40. What’s more, the new matter added in each asserted patent is different, and in
each case, directly supports the claims filed in each respective patent.
41. Redline comparisons of excerpts from the specifications for the ‘656 patent, ‘121
patent and ‘122 patents compared to the parent application (Appl. No. 16/059,876) are attached
as Exhibits D-F, respectively.
42. Exhibits D-F show both the breadth of new material, as well as the disclosure of
and support for the precise claim limitations in each asserted patent.
43. For example, new matter was added in the ‘656 patent specification to cover the
newly claimed element of the food container “extend[ing] above the upper portion of the
housing,” an element absent from the parent application.
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44. In the ‘121 patent, new matter was added to cover the newly claimed “locking
mechanism,” an element absent from the parent application.
45. And in the ’122 patent, new mater was added to cover the newly claimed heating
element in the first lid being “open to airflow” from the chamber in the first cooking mode and
“closed off to airflow” in the second cooking mode, both of which were absent from the parent
application.
46. Upon information and belief, SharkNinja and its Attorney(s) including at least
Daniel R. Gibson of Cantor Colburn LLP intentionally added the new matter to have written
description support for the new claims in each asserted patent, but still filed these applications as
continuations.
47. By doing so, SharkNinja and its Attorney(s) acted with a concerted effort to
fraudulently claim earlier priority for the asserted patents than what is proper.
48. In addition, SharkNinja and its prosecuting attorney(s) intentionally hid reference
to the earlier invention, disclosure, and patenting of a combined pressure cooker and air fryer by
Zhejiang Shangchu.
49. More specifically, SharkNinja and its Attorney(s) submitted more than 1,300 prior
art references in Invention Disclosure Statements (“IDS”) filed with the USPTO during the
prosecution of the ‘656 patent.
50. The IDSs disclosing the 1,300+ references over 239 pages filed during
prosecution of the asserted ‘656 patent are attached as Exhibit C.
51. SharkNinja and its Attorney(s) buried the CN ‘969 patent and CN ‘144
publications with the 1,300+ other prior art references submitted.
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52. SharkNinja provided no explanation or description of these references to the
USPTO.
53. Upon information and belief, SharkNinja and its Attorney(s) never even reviewed
the 1,300+ references in full before submitting them to the USPTO.
54. Upon information and belief, this blizzard of prior art was intentionally filed by
SharkNinja and its prosecuting attorney(s) in order to hide relevant refences, such as the CN ‘969
patent and CN ‘144 publication, a practice that courts in this District and elsewhere have found
to be further evidence of inequitable conduct. See, e.g., Penn Yan Boats, Inc. v. Sea Lark Boats,
Inc., 359 F. Supp. 948, 175 U.S.P.Q. (BNA) 260 (S.D. Fla. 1972), aff'd, 479 F.2d 1328, 178
U.S.P.Q. (BNA) 577 (5th Cir.), cert. denied, 414 U.S. 874 (1973); eSpeed, Inc. v. Brokertec
USA, L.L.C., 417 F. Supp. 2d 580 (D. Del. 2006), aff'd, 480 F.3d 1129 (Fed. Cir. 2007); Rovi
Guides, Inc. v. Comcast Cable Communications, 2019-10-03 Appeal No. 2019-1188 Hearing
(Judge Alan D. Lourie criticizing plaintiff’s inclusion of 1,500 references during prosecution,
stating that there is no other reason to cite that many references “other than to bury the
examiner” asking plaintiff’s attorney to “filter back to the originators of this patent that, at least
with respect to one judge, it doesn't sit very well … It doesn't leave a good impression of the
prosecution.”).
55. It is impossible for an Examiner at the USPTO to review 1,300+ references during
the prosecution of a single patent application.
56. This fact is made apparent by the lack of the Examiner’s signature (symbolizing
consideration of the reference) for the vast majority of those submitted with the ’656 patent.
57. SharkNinja and its Attorney(s) knew that it would be impossible for the Patent
Examiner to review even a fraction of the 1,300+ references it submitted.
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58. Identical disclosures of 1,300+ references were made by SharkNinja during
prosecution of both the ‘121 and ‘122 patents.
59. The CN ’969 patent is shown on p. 87 of Exhibit C and CN ‘144 publication on p.
132 of Exhibit C with no Examiner signature.
60. The lack of the Examiner’s signature is proof that these references were never in
fact reviewed or considered by the Examiner before allowing the ‘656 patent to issue.
61. The CN ‘969 patent and CN ‘144 publication was also never reviewed or
considered by the Examiner during the prosecution of the ’121 and ‘122 patents.
62. SharkNinja and its attorney(s) including at least Daniel R. Gibson of Canton
Colburn LLP have also filed approximately 20 more continuation applications covering the same
combined pressure cooker and air fryer product.
63. Like the asserted patents, these continuations also falsely claim priority to
application no. 16/059,876, despite new matter in the specifications and also cite more than
1,300 references as prior art.
64. These actions by SharkNinja and its prosecuting attorney(s) provide further
evidence of an ongoing intent to commit an active fraud on the Patent Office by obtaining future
invalid patents.
65. The timing of the actions taken by SharkNinja and its Attorney(s) is also telling of
their misdeeds.
66. The infomercial in which Tristar’s Emeril Lagasse Pressure AirFryer first
appeared was filmed on February 11, 2019.
67. Tristar’s Emeril Lagasse Pressure AirFryer was first publicly displayed at the
International Home + Housewares Show in Chicago from March 10 to 13, 2019.
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68. SharkNinja filed the applications that later became the asserted patents on March
18, 2019, less than one week after the public disclosure of the Emeril Lagasse Pressure AirFryer.
69. In the applications that became the asserted patents, SharkNinja intentionally
added new matter to each of the specifications.
70. The new matter in these specifications support the patent claims in these patents
that were drafted to cover the Emeril Lagasse Pressure AirFryer, which had recently been
publicly disclosed.
71. SharkNinja and its attorney(s), including at least Daniel R. Gibson of Canton
Colburn LLP, lied about the priority of these applications to the Patent Office in an effort to
predate Tristar’s development, release, and sale of the accused device.
72. It is only because of these fraudulent acts that the asserted patents issued and the
present lawsuit initiated.
73. Evidence of SharkNinja’s bad acts is further supported by its baseless suit naming
Emeril Lagasse as a defendant. Mr. Lagasse is merely a paid spokesman for the accused product
who cannot plausibly be involved in any aspect of the alleged infringement. SharkNinja knew
that Mr. Lagasse’s involvement pre-dated the issuance of the patents, knew that he has no
responsibility for the sale or distribution of the accused product, and knew that he was an
individual for whom venue is improper, yet named him as a defendant for no other reason than to
embarrass and harass him.
INTERFERENCE WITH TRISTAR’S BUSINESS RELATIONS
74. Tristar has advantageous business relations with a large number of retailers that
carry and sell Tristar products, including the accused Emeril Lagasse Pressure Air Fryer.
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75. These retailers include Bed Bath and Beyond, QVC, Costco, Kohls, Walmart,
Sam’s Club, Target and many others.
76. This lawsuit alleges patent infringement of three patents that, based on
information and belief, were fraudulently obtained through intentional acts taken by SharkNinja,
its Prosecuting Attorney Daniel R. Gibson and the Law Firm of Cantor Colburn LLP.
77. Once the Complaint was filed, SharkNinja and its in-house legal counsel,
including at least Pedro J. Lopez-Baldrich, wrote letters to several retailers who were selling or
planning to sell the Emeril Lagasse Pressure Air Fryer.
78. These letters (examples of which are attached as Exhibits G and H) alerted the
retailers of the fraudulently obtained patents and present litigation based on these patents.
79. These letters also misrepresented that the accused product infringes the
fraudulently obtained asserted patents, that the supply of Tristar’s product could be impacted by
the litigation, and asked that the retailer refrain from placing further orders for the Emeril
Lagasse Pressure AirFryer from Tristar.
80. As a result of the inequitable and fraudulent acts conducted by SharkNinja, its
prosecuting attorneys, including at least Daniel R. Gibson of the firm of Cantor Colburn, and
SharkNinja’s in-house counsel, including at least Pedro J. Lopez-Baldrich, caused at least one
retailer, QVC, to refrain from carrying the accused product and Tristar has suffered a loss of
good will with many other retailers.
COUNTERCLAIM ONE
(Declaratory Judgment of Unenforceability of the Asserted
‘656, ‘121 and ‘122 Patents Due to Inequitable Conduct)
81. Tristar repeats and re-alleges the allegations of the preceding Paragraphs of its
Affirmative Defenses and Counterclaims as if fully set forth herein.
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82. The asserted patents are unenforceable due to inequitable conduct before the
Patent Office by SharkNinja and its Attorney(s) during prosecution of the applications that led to
the asserted patents. The details of the inequitable conduct performed by SharkNinja and its
Attorney(s), including at least Daniel R. Gibson and the law firm of Canton Colburn LLP, is set
forth in the preceding paragraphs above, and is adopted by reference, repeated, and re-alleged as
though set forth fully herein.
83. A judicial determination of the respective rights of the parties with respect to the
unenforceability of the asserted patents is now necessary and appropriate under 28 U.S.C. § 2201
COUNTERCLAIM TWO
(Declaratory Judgment of Invalidity of the ’656 Patent)
84. Tristar repeats and re-alleges the allegations of the preceding Paragraphs of its
Affirmative Defenses and Counterclaims as if fully set forth herein.
85. The claims of the ’656 patent are invalid under 35 U.S.C. §§ 102 and/or 103 in
light of prior art. For example, one or more claims of the ’656 Patent are invalid due to the
following prior art: US 4,241,288 (Aoshima); US Publ. 2014/0227411 (Popeil); US 6,903,310
(Lee); US 6,083,543 (Kim); US Publ. 2005/0223906 (Xu); US 5,588,352 (Harrison352); US
publ. 2014/0199459 (Jackson); US 5,526,734 (Harrison734) and CN ‘969.
86. The claims of the ’656 patent are invalid under 35 U.S.C. § 112 for failing to
comply with one or more of the written description requirement, the enablement requirement,
and the definiteness requirement.
87. A judicial determination of the respective rights of the parties with respect to the
validity of the claims of the ’656 patent is now necessary and appropriate under 28 U.S.C. §
2201.
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COUNTERCLAIM THREE
(Declaratory Judgment of Invalidity of the ’121 Patent)
88. Tristar repeats and re-alleges the allegations of the preceding Paragraphs of its
Affirmative Defenses and Counterclaims as if fully set forth herein.
89. The claims of the ’121 patent are invalid under 35 U.S.C. §§ 102 and/or 103 in
light of prior art. For example, one or more claims of the ’121 Patent are invalid due to the
following prior art: US 4,241,288 (Aoshima); US Publ. 2014/0227411 (Popeil); US 6,903,310
(Lee); US 6,083,543 (Kim); US Publ. 2005/0223906 (Xu); US 5,588,352 (Harrison352); US
publ. 2014/0199459 (Jackson); US 5,526,734 (Harrison734) and CN ‘969.
90. The claims of the ’121 patent are invalid under 35 U.S.C. § 112 for failing to
comply with one or more of the written description requirement, the enablement requirement,
and the definiteness requirement.
91. A judicial determination of the respective rights of the parties with respect to the
invalidity of the claims of the ’121 patent is now necessary and appropriate under 28 U.S.C. §
2201.
COUNTERCLAIM FOUR
(Declaratory Judgment of Invalidity of the ’122 Patent)
92. Tristar repeats and re-alleges the allegations of the preceding Paragraphs of its
Affirmative Defenses and Counterclaims as if fully set forth herein.
93. The claims of the ’122 patent are invalid under 35 U.S.C. §§ 102 and/or 103 in
light of prior art. For example, one or more claims of the ’122 Patent are invalid due to the
following prior art: US 4,241,288 (Aoshima); US Publ. 2014/0227411 (Popeil); US 6,903,310
(Lee); US 6,083,543 (Kim); US Publ. 2005/0223906 (Xu); US 5,588,352 (Harrison352); US
publ. 2014/0199459 (Jackson); US 5,526,734 (Harrison734) and CN ‘969.
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94. The claims of the ’122 patent are invalid under 35 U.S.C. § 112 for failing to
comply with one or more of the written description requirement, the enablement requirement,
and the definiteness requirement.
95. A judicial determination of the respective rights of the parties with respect to the
invalidity of the claims of the ’122 patent is now necessary and appropriate under 28 U.S.C. §
2201.
COUNTERCLAIM FIVE
(Tortious Interference with Advantageous Business Relations)
96. Tristar repeats and re-alleges the allegations of the preceding Paragraphs of its
Affirmative Defenses and Counterclaims as if fully set forth herein.
97. With no legitimate justification, SharkNinja has intentionally and maliciously
interfered with Tristar’s business relationships with a number of these retailers who sell, or were
planning to sell, the accused Emeril Lagasse Pressure Air Fryer. The details of the conduct
performed by SharkNinja and its Attorney(s) is set forth in the preceding paragraphs above, and
is adopted by reference, repeated, and re-alleged as though set forth fully herein.
98. A judicial determination of the respective rights of the parties with respect to the
intentional and tortious interference of Tristar’s business relations by SharkNinja, Daniel R.
Gibson, the law firm of Canton Colburn LLP and Pedro J. Lopez-Baldrich is now necessary and
appropriate under 28 U.S.C. § 2201.
COUNTERCLAIM SIX
(Declaratory Judgment of Non-Infringement of the ’656 Patent)
99. Tristar repeats and re-alleges the allegations of the preceding Paragraphs of its
Affirmative Defenses and Counterclaims as if fully set forth herein.
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100. SharkNinja alleges in the Complaint that Tristar infringes one or more claims of
the ‘656 patent.
101. Tristar is not infringing, has not infringed, and is not liable for any infringement,
of any valid claim of the ‘656 Patent, and SharkNinja is not entitled to any relief for any such
claim of infringement against Tristar.
102. A judicial determination of the respective rights of the parties with respect to the
infringement of the claims of the ’656 patent is now necessary and appropriate under 28 U.S.C. §
2201.
COUNTERCLAIM SEVEN
(Declaratory Judgment of Non-Infringement of the ’121 Patent)
103. Tristar repeats and re-alleges the allegations of the preceding Paragraphs of its
Affirmative Defenses and Counterclaims as if fully set forth herein.
104. SharkNinja alleges in the Complaint that Tristar infringes one or more claims of
the ‘121 patent.
105. Tristar is not infringing, has not infringed, and is not liable for any infringement,
of any valid claim of the ‘121 Patent, and SharkNinja is not entitled to any relief for any such
claim of infringement against Tristar.
106. A judicial determination of the respective rights of the parties with respect to the
infringement of the claims of the ’121 patent is now necessary and appropriate under 28 U.S.C. §
2201.
COUNTERCLAIM EIGHT
(Declaratory Judgment of Non-Infringement of the ’122 Patent)
107. Tristar repeats and re-alleges the allegations of the preceding Paragraphs of its
Affirmative Defenses and Counterclaims as if fully set forth herein.
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108. SharkNinja alleges in the Complaint that Tristar infringes one or more claims of
the ‘122 patent.
109. Tristar is not infringing, has not infringed, and is not liable for any infringement,
of any valid claim of the ‘122 Patent, and SharkNinja is not entitled to any relief for any such
claim of infringement against Tristar.
110. A judicial determination of the respective rights of the parties with respect to the
infringement of the claims of the ’122 patent is now necessary and appropriate under 28 U.S.C. §
2201.
DEMAND FOR JURY TRIAL
111. Pursuant to Federal Rule of Civil Procedure 38(b), Tristar respectfully requests a
trial on all issues properly triable to a jury.
PRAYER FOR RELIEF
WHEREFORE, Tristar respectfully request the following relief:
a. The Court enter judgment in favor of Tristar denying all relief requested by
SharkNinja in this action and dismissing SharkNinja’s Complaint with prejudice;
b. The Court declare and enter judgment that the asserted patents are unenforceable
because of inequitable conduct;
c. The Court declare and enter judgment that the asserted patents are invalid;
d. The Court declare and enter judgment that SharkNinja, its prosecuting attorney(s)
including at least Daniel R. Gibson, Cantor Colburn LLP and its in-house counsel
including at least Pedro J. Lopez-Baldrich tortiously interfered with Tristar’s
advantageous business relations;
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e. The Court direct that SharkNinja, Daniel R. Gibson, the law firm of Canton Colburn
LLP and/or Pedro J. Lopez-Baldrich pay Tristar for the damages that resulted from
said tortious interference;
f. The Court declare and enter judgment that Tristar does not infringe any claims of the
asserted patents;
g. The Court declare and enter judgment that this is an exceptional case under 35 U.S.C.
§ 285;
h. The Court direct that SharkNinja pay Tristar’s attorneys’ fees and costs incurred with
this civil action; and
i. The Court award such further relief as the Court deems just and proper.
Dated: November 29, 2019 Respectfully submitted,
/s/ Roger A. Colaizzi
Roger A. Colaizzi (admitted pro hac vice)
Frank C. Cimino, Jr. (admitted pro hac vice)
VENABLE LLP
600 Massachusetts Avenue, NW
Washington, DC 20001
202.344.4569
202.344.8300 – Facsimile
Robert E. Bugg (admitted pro hac vice)
VENABLE LLP
Rockefeller Center
1270 Avenue of the Americas
New York, NY 10020
212.370.6241
212.307.5598 – Facsimile
RUSSOMANNO & BORRELLO, P.A.
Museum Tower – PH2800
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150 West Flagler Street
Miami, Florida 33130
Telephone: (305) 373-2101
By: /s/ Herman J. Russomanno III
Herman J. Russomanno III
Fla. Bar No. 21249
ATTORNEYS FOR DEFENDANT TRISTAR
PRODUCTS, INC.
CERTIFICATE OF SERVICE
I hereby certify that on November 29, 2019, I electronically filed the foregoing document
with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served
this day on any and all counsel of record or pro se parties in the manner specified, either via
transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized
manner for those counsel or parties who are not authorized to receive electronically Notices of
Electronic Filing.
/s/ Herman J. Russomanno III
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