verto v. auria - complaint

7/29/2019 Verto v. Auria - Complaint

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UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

Verto Medical Solutions, LLC d/b/a Yurbuds, )

)Plaintiff, )) Case No.

v. )) J ury Trial Demanded

Auria, LLC, ))

Defendant. )

COMPLAINT

Plaintiff Verto Medical Solutions, LLC d/b/a Yurbuds (Yurbuds), by and through its

attorneys, hereby complain against Defendant Auria, LLC (Auria) as follows:

NATURE OF THE SUIT

1. This case arises from the illegal and unfair acts of Auria in making, offering forsale, and selling ear bud adaptors that infringe Yurbuds U.S. Patent No. D618,219.

THE PARTIES

2. Plaintiff Verto Medical Solutions, LLC is a Delaware limited liability companywith a place of business in this judicial district at 4041 Forest Park Ave., St. Louis, MO 63108.

Plaintiff does business as Yurbuds.

3. On information and belief, Defendant Auria, LLC is a Pennsylvania limitedliability company with a principal place of business at 5 Great Valley Parkway, Suite 310,

Malvern, PA 19355.

4. On information and belief, Auria does business throughout the United States,including within this judicial district.

Case: 4:13-cv-00382 Doc. #: 1 Filed: 02/28/13 Page: 1 of 5 PageID #: 1


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J URISDICTION AND VENUE

5. This Court has exclusive jurisdiction over the subject matter of Yurbuds patentinfringement claims pursuant to 28 U.S.C. 1331 and 1338(a), and because this action arises

under the patent laws of the United States, 35 U.S.C. 1, et seq.

6. On information and belief, Auria directly or through distributors, salesrepresentatives or retail outlets sells its products throughout the United States and in this judicial

district.

7. Further, on information and belief, Auria has offered for sale and/or sold at leastone product that is at issue in this suit in the State of Missouri and in this judicial district, and has

caused injury to Yurbuds in this judicial district.

8. Accordingly, this Court has personal jurisdiction pursuant to, at least,Mo.Rev.Stat. 506.500, which operates to effect long-arm jurisdiction over Auria due to its

contacts with this judicial district.

9. Venue is proper in this jurisdiction under 28 U.S.C. 1391 and 1400(b).FACTUAL BACKGROUND

10. United States Patent No. D618,219 (the 219 Patent), entitled Ear BudAdaptor, issued on June 22, 2010. A copy of the '219 Patent is attached hereto as Exhibit A.

11. Yurbuds is the owner by assignment of all right, title and interest in the 219Patent by virtue of an assignment recorded in the U.S. Patent and Trademark Office on May 18,

2010, at Reel 024400, Frame 0148, and has the right to sue for and recover for infringements

thereof.

12. The 219 Patent was duly and legally issued, and is valid and enforceable.



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13. The 219 Patent claims a novel, ornamental design for an ear bud adapter, asshown in figures 1 through 7 of the 219 Patent.

14. Upon information and belief, Auria is importing, making, using, offering for sale,and/or selling, within the United States and in this judicial district, ear bud adaptors that infringe

the 219 Patent. A photograph showing a sample accused infringing product sold by Auria is

attached as Exhibit B.

15. On information and belief, Auria used, offered for sale and sold, within thisjudicial district, ear bud adaptors that infringe the 219 Patent at the Second Annual TASK Rock

n Roll Marathon event held in St. Louis, Missouri in October 2012.

COUNT I: PATENT INFRINGEMENT

16. Yurbuds incorporates by reference paragraphs 1 through 15 as though fully setforth herein.

17. The 219 Patent was duly and legally issued on June 22, 2010, and is valid andenforceable.

18. Auria has infringed, without right, license or permission from Yurbuds,contributorily infringed, and/or induced others to infringe the claim of the 219 Patent by

making, using, offering to sell and selling to customers within this judicial district and elsewhere

in the United States, or importing into the United States, within the term of the 219 Patent,

products that embody the invention of the 219 patent.

19. Aurias actions as described herein constitute infringement of Yurbuds 219Patent in violation of 35 U.S.C. 271, 281-285, et seq.



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20. On information and belief, these infringing activities have been willful anddeliberate and are causing, and will continue to cause, substantial and irreparable damage to

Yurbuds, and Aurias actions will continue unless enjoined by this Court.

21. Yurbuds has been damaged by Aurias infringement, contributory infringementand/or inducement of infringement of the 219 Patent and has been and will continue to be

irreparably harmed if these infringing activities are not enjoined.

22. Yurbuds does not have an adequate remedy at law for Aurias acts ofinfringement, contributory infringement, or inducement of infringement.

23.

This is an exceptional case within the meaning of 35 U.S.C. 285, and Yurbuds

is entitled to an award of reasonable attorneys fees.

PRAYER FOR RELIEF

WHEREFORE, Yurbuds prays for judgment:

A. Declaring that Auria has infringed, contributorily infringed and/or inducedinfringement of U.S. Patent No. D618,219, and these infringing activities have been willful;

B. Preliminarily and permanently enjoining Auria, its subsidiaries, officers, agents,servants and employees, directors, licensees, successors, assigns, and those persons in active

concert or participation with any of them, from further infringement, contributory infringement

and inducement of infringement of U.S. Patent No. D618,219;

C. Awarding Yurbuds damages adequate to compensate for Yurbuds losses causedby the wrongful and infringing activities of Auria, together with interest;

D. Awarding Yurbuds treble damages with interest, costs and reasonable attorneysfees under 35 U.S.C. 284, 285, and other applicable law, by reason of the willful and

deliberate nature of Aurias infringement of U.S. Patent No. D618,219; and



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E. Awarding Yurbuds such further relief as this Court may deem just and proper.DEMAND FOR J URY TRIAL

Plaintiff demands a trial by jury on all issues so triable.

Dated: February 28, 2013 Respectfully submitted,

HARNESS, DICKEY & PIERCE, P.L.C.

By: /s/ Rudolph A. Telscher_____

Rudolph A. Telscher, J r., #8578Kara R. Fussner, #5030307700 Bonhomme, Suite 400St. Louis, Missouri 63105(314) 726-7500FAX: (314) 726-7501

Counsel for Plaintiff Verto Medical

Solutions d/b/a Yurbuds

61056693.1



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Case: 4:13-cv-00382 Doc. #: 1-1 Filed: 02/28/13 Page: 1 of 3 PageID #: 6

111111 11111111111111111111111111111111111111111111111111111111111111

(12) United States Design PatentBurgett et al.

(54) EAR BUD ADAPTER(75) Inventors: Seth Burgett , Glen Carbon, IL (US);Richard J. Daniels, St. Louis, MO (US);Melvin Joshua Leedle, St. Louis, MO(US)(73) Assignee: Verto Medical Solutions, LLC, GlenCarbon, lL (US)(**) Term: 14 Years(21) Appl. No.: 29/314,832(22) Filed: Ma y 1, 2009(51) LOC (9) Cl. .................................................. 14-01(52) U.S. CI ............. .............. .............. ............ Dl4/223(58) Field of Classification Search ................ 014/205,Dl4/206, 223; 181/129, 130, 135, 137, 322;

381/322,328,338,324,380, 381; 379/430,379/433.01; 128/864, 866, 868, 867, 857;21209, 428; D24/106, 174Sec application file for complete search history.

(56) References CitedU.S. PATENT DOCUMENTS

2,325,590 A *2,549,629 A *3,047,089 A "'0242,810 s4,069,400 A "'0266,590 s *4,375,016 A *0287,280 s "'0287,764 s "'0287,765 s *4,972,492 A *

7/1943 Carlisle ct aL .............. 38l/3284/1951 Nelson .... .... .... .... .... ... 381/3387/1962 Zwislocki ................... 181113512/1976 Rynearson .............. ... 014/205111978 Johanson eta! ............ 381/3241011982 Bennett ..................... 024/1742/1983 Harada ........... ......... ... 181/13512/1986 Tophohn ...... ........... , 024/174l/1987 Topholm ..... ........ ...... D24/1741/1987 Topholm ................... D24/1741111990 Tanaka eta!. ............. .. 3811380

USOOD618219S

(IO) Patent No.:(45) Date of Patent: US D618,219 S** Jun. 22, 2010

0340,286 s *5,659,156 A0388,093 s *5,712,453 A0478,991 s *6,688,421 B26,690,807 Bl *0505,132 s *0514,094 s *0574,361 s '0593,537 s *0601,134 s *

* cited by examiner

10/1993 Seo ....... ........ ....... ..... 024/1748/1997 MauneyetaL12/1997 Frengley ......... ........ ... 014/2231!1998 Bungardt et al.8/2003 Oyereta!. ................. 024/174212004 Dyer et a!.2/2004 Meyer .............. ......... . 381/3275/2005 Linville eta! ............. DI4/2231/2006 Griffin ............. ......... . 014/2238/2008 Sasaki ............ ........ ... Dl4/2056/2009 Admoto ............. ....... 014/205912009 Elabidi et a1 ............... 014/223

Primary Examiner-Paula Greene(74)Attorney, Agent, or Firm-Dicke, Billig& Czaja PLLC(57) CLAIMThe ornamental design for an ear bud adapter, as shown anddescribed herein.

DESCRIPTIONFIG. 1 is a front perspective view of an ear bud adaptershowing our new design.FIG. 2 is a rear perspective view thereof;FIG. 3 is a front perspective view thereof;FIG. 4 is a rea r elevational view thereof;FIG. 5 is a side elevational view thereof; and,FIG. 6 is an opposite side elevational view thereof;FIG. 7 is a top plan view thereof; and,FIG. 8 is a bottom plan view thereof.The broken lines form no part of the claimed design.

1 Claim, 2 Drawing Sheets

I' ! ~ I - - ~ - ~ ~ ~ ~ . ----------- , I

EXHIBITI A


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U.S. Patent Jun.22,2010 Sheet 1 of2 US D618,219 S

Fig. 1 Fig.2

----------

Fig. 3 Fig.4


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U.S. Patent Jun.22,2010 Sheet 2 of2

F i g ~ 5

F i g ~ 7

US D618,219 S

I, , ~ ------------ I -----

! --------- -'' .--- -- -

Fig. 8


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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MISSOURI

), )

)Plaintiff, )

)

v. ) Case No.)

, ))

Defendant, ))

ORIGINAL FIL ING FORM

THI S FORM MUST BE COMPL ETED AND VERI FIED BY THE FIL ING PARTYWHEN INITIATING A NEW CASE.

THIS SAME CAUSE, OR A SUBSTANTIALLY EQUIVALENT COMPLAINT, WAS

PREVIOUSLY FILED IN THIS COURT AS CASE NUMBER

AND ASSIGNED TO THE HONORABLE JUDGE .

THIS CAUSE IS RELATED, BUT IS NOT SUBSTANTIALLY EQUIVALENT TO ANY

PREVIOUSLY FILED COMPLAINT. THE RELATED CASE NUMBER IS AND

THAT CASE WAS ASSIGNED TO THE HONORABLE . THIS CASE MAY ,

THEREFORE, BE OPENED AS AN ORIGINAL PROCEEDING.

NEITHER THIS SAME CAUSE, NOR A SUBSTANTIALLY EQUIVALENT

COMPLAINT, HAS BEEN PREVIOUSLY FILED IN THIS COURT, AND THEREFORE

MAY BE OPENED AS AN ORIGINAL PROCEEDING.

The undersigned affirms that the information provided above is true and correct.

Date:Signature of Filing Party

Verto Medical Solutions,LLC d/b/a Yurbuds

Auria, LLC

02/28/2013



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AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATESDISTRICT COURTfor the

__________ District of __________

)

))))))

Plaintiff

v. Civil Action No.

Defendant

SUMMONS IN A CIVIL ACTION

To: (Defendants name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk

EasternDistrictof Missouri

Verto Medical Solutions, LLC d/b/a Yurbuds,

Auria, LLC,

Auria, LLC5 GreatValley Parkway, Suite 310

Malvern, PA 19355Registered Office Address7 GreatValley Parkway, Suite 246Malvern, PA 19355

Rudolph A. Telscher, J r.

Harness, Dickey & Pierce, P.L.C.7700 Bonhomme, Suite 400St. Louis, MO 63105

02/28/2013



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AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on(date) .

u I personally served the summons on the individual at(place)

on (date) ; or

u I left the summons at the individuals residence or usual place of abode with(name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individuals last known address; or

u I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of(name of organization)

on (date) ; or

u I returned the summons unexecuted because ; or

u Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Servers signature

Printed name and title

Servers address

Additional information regarding attempted service, etc:

0.00


verto v. auria - complaint

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