Lyden v. Nike

Robert M.
Lyden
ProSe
18261 S.W. Fallatin Loop
Aloha, OR 97007
E-mail: robertlyden@comcast.net
Phone: (971) 219-1200
UNITED STATES DISTRICT COURT
ROBERT M. LYDEN,
an individual,
Plaintiff,
v.
NIKE,INC.
an Oregon Corporation,
Defendant.
DISTRICT OF OREGON
Portland Division
662 HZ
COMPLAINT FOR:
PATENT INFRINGEMENT;
INTENTIONAL
INTERFERENCE WITH
PROSPECTIVE
ECONOMIC ADVANTAGE;
NEGLIGENT INTERFERENCE
WITH PROSPECTIVE
ECONOMIC ADVANTAGE;
FRAUD;
CONVERSION; AND,
UNJUST ENRICHMENT I
RESTITUTION.
DEMAND FOR JURY TRIAL
For his complaint against Nike, Inc., Plaintiff Robert M. Lyden
("Plaintiff' or "Lyden"), states and alleges, as follows:
NATURE OF THE CASE
1. This is a patent infringement lawsuit brought under the patent laws of the
United States, including 35 U.S.C. 271, 281, 283-85.
2. In addition, this is an unfair competition case arising under common law.
THE PARTIES
3. Robert M. Lyden is a private individual having a residence at 18261 S.W.
Fallatin Loop, Aloha, Oregon 97007, in the United States.
4. Nike, Inc. is a corporation organized under the laws of the State of Oregon,
having its World Headquarters and principle place of business at One Bowerman Drive,
Beaverton, Oregon 97005, in the United States.
JURISDICTION AND VENUE
5. This action arises under the patent laws of the United States, including 35
U.S. C. 101 et seq. This Court has subject matter jurisdiction over this action pursuant
to 28 U.S.C. 1331, and 1338(a).
6. Venue is proper in this district pursuant to 28 U.S.C. 1391 and 1400 and
the Defendant Nike, Inc. (also "Defendant" or "Nike, Inc.") is subject to personal
jurisdiction in this Court because Nike, Inc. conducts substantial business in this judicial
district including: (i) regularly doing or soliciting business, engaging in other persistent
COMPLAINT FOR PATENT INFRINGEMENT AND UNFAIR COMPETITION 2
courses of conduct, and /or deriving substantial revenue from goods and services
provided to individuals in Oregon and in this Judicial District; and (ii) committing acts of
patent infringement and/or contributing to or inducing acts of patent infringement by
others in this Judicial District (and elsewhere in Oregon and the United States).
7. Assignment of this case to the Portland Division is proper because a
substantial part of the events giving rise to the claims alleged in this action occurred in
the Portland Division.
FACTUAL BACKGROUND
(Lyden and Nike, Inc. Prior to May, 1990)
8. Lyden hereby realleges and incorporates by reference paragraphs 1-7,
inclusive, as though fully set forth herein.
9. Plaintiff Robert M. Lyden ("Lyden") has a history as a coach, educator, and
innovator. Lyden received dual Masters' Degrees in History and Public Administration
from the University of Minnesota in 1982 and 1988, and was certified as an educator to
teach and coach K-12. In the State of Minnesota, Lyden was associated as an assistant
coach with two High School Runner's Up and one State Championship Team Title in
Track & Field, and several individual State Champions between 1982-1988. Lyden also
served as a personal coach to Mr. Steven Plasencia, who was affiliated with Nike, Inc.'s
club Athletics West in Eugene, Oregon, and a member of the U.S. Olympic Team in
Track & Field in 1988.
10. In 1988, Lyden's observations and experiences as a coach with the AIR MAX
footwear products made by Nike, Inc. led him to believe that certain improvements in
footwear cushioning and stability characteristics could be made that would benefit
runners and the general public.
11. Lyden also filed several patent applications and worked as an independent
inventor between March, 1985 and May, 1990. In this regard, between May, 1989 and
May, 1990, Lyden approached and disclosed to the late Mr. Dan Potter in Nike, Inc.'s
patents department several of Lyden's prior inventions, and these were later recited and
excluded from Nike, Inc.'s ownership under the terms found in paragraph 11 of Lyden's
employment agreement with Nike, Inc. entitled "Employee Invention And Secrecy
Agreement" which was executed on August 8, 1990, attached hereto as Exhibit A. In
particular, Lyden disclosed to Nike, Inc. Lyden's U.S. 4,674,206, attached hereto as
Exhibit B, and Potter performed some research and experiments in order to evaluate this
invention.
12. In May, 1989, Lyden also disclosed to Nike, Inc. as an independent inventor
the three dimensional shoe upper design and pattern shown in a photo which was taken
with a copy of"The Minnesota Daily" newspaper dated May 8, 1989, attached hereto as
Exhibit C, and shortly afterwards Lyden was informed by Potter that the shoe upper
pattern had been seen by Nike, Inc.'s lead designer, Mr. Tinker Hatfield, who expressed
that he liked it.
13. Between August 31, 1989 and May, 1990, Lyden also disclosed to Nike, Inc.
as an independent inventor a pending U.S. patent application serial number 410,074 filed
September 20, 1989 which matured as U.S. 5,101,580, as well as a disclosure for a
speedsuit relating to Track & Field entitled "Aerodynamic Athletic Apparel Background
For U.S. Patent Application And I OR Trademark Protection," dated August 31, 1989,
attached hereto as Exhibit D.
14. In 1990, given Lyden's demonstrated knowledge of athletics, footwear and
patents, Potter invited Lyden to apply for a position opening in the patents department at
Nike, Inc.
Factual Background, Continued
(Lyden and Nike, Inc. May, 1990 -September 9, 1996)
16. Lyden applied for the position and was hired by Nike, Inc. as "Patents and
Inventions Assistant" to assist Potter in Nike, Inc.'s patent department in May, 1990, and
Lyden then worked as a regular employee for Nike, Inc. at the world headquarters and
campus located in Beaverton, Oregon until September 9, 1996.
17. In July, 1990, Lyden was assigned to gather information for a design patent
for a shoe upper which was named the HUARCHE by Nike, Inc. designer Mr. Tinker
Hatfield.
18. Hatfield could not find the original of what he believed was his earliest
relevant drawing, but only a photocopy. All ofthe other early drawings of Hatfield
which bore close resemblance to the HUARACHE were dated June 13, 1989. In the
presence of Lyden, Hatfield then signed and backdated the photocopy of the earliest
drawing to January 13, 1989. This date was prior to Lyden's submission to Nike, Inc. of
the footwear pattern shown in Exhibit C which had been shared by Potter with Hatfield.
Lyden had no evidence to then disprove Hatfield's representation regarding the date of
his earliest relevant drawing, and so did not confront Hatfield. However, Lyden felt that
Hatfield's representation was possibly incorrect, and committed the unusual coincidence
to memory.
19. Lyden's employment agreement with Nike, Inc. was later completed and
executed on August 8, 1990, Exhibit A, and at about the same time Potter communicated
to Lyden that Nike, Inc. had no interest in purchasing or licensing Lyden's prior
inventions.
20. The shoe upper design of Hatfield commercialized by Nike, Inc. as the
HUARCHE style shoe was later the subject of several U.S. Design Patents, e.g., U.S.
Design 322,505, filed July 27, 1990, attached hereto as Exhibit E.
21. In 1990, shoe uppers having a resemblance to the HUARACHE style were not
being commercialized in the athletic footwear industry, and it can be seen that Hatfield's
U.S. Design 322,505 provided in Exhibit E resembles the earlier three dimensional shoe
upper design of Lyden shown in Exhibit C.
22. The HUARACHE shoe upper design led to the commercialization of many
later embodiments of so-called HUARACHE style athletic footwear which were
commercially successful.
23. Hatfield received a national design award for the HUARACHE shoe design.
24. Between May, 1990 and September 9, 1996, Lyden assisted both Nike, Inc.'s
in-house and external patent counsel in numerous patent litigations.
25. In the course ofthe litigation Wolverine World Wide, Inc. and Brooks Shoes,
Inc., vs. Nike, Inc. in the United States District Court For the Western District of
Michigan, Southern Division, Civil Action No. 1 :92-cv-886, which concerned the
HUARACHE style shoe upper, a former member ofNike, Inc.'s patent department found
Hatfield's original drawing relating to the HUARACHE upper photocopy which had
been backdated January 13, 1989 in Lyden's presence, but it was actually drawn on an
oversized board dated June 13, 1989, thus after the date of Lyden's submission to Nike,
Inc. in May, 1989.
26. Nike, Inc. needed to have actual ownership of the HUARACHE upper design
because the company had sold and continued to sell millions of dollars of HUARACHE
style footwear products, and so Lyden proposed to Nike, Inc. in-house patent counsel Mr.
Tom Horgan that Nike, Inc. simply pay him for one season of design work at Hatfield's
level of compensation.
27. Lyden holds Hatfield to be a talented designer, and the HUARACHE shoes
were well executed and successfully commercialized by Nike, Inc. However, it was
unfortunate not only for Lyden, but also from the standpoint ofNike, Inc.'s best interest
that the "HUARACHE affair" was not handled differently because it could have been
possible for Lyden and Nike, Inc. to have obtained utility patent protection on the
invention which would have provided a certain exclusivity, and resulted in greater sales
and profits. As discussed below in paragraph 131, Hatfield has also associated himself
with the Nike, Inc. FLYKNIT shoes which are believed to be infringing Lyden's U.S.
8,209,883, attached hereto as Exhibit QQ.
28. Nike, Inc. delayed for over a year and did not act on Lyden's proposal until
the company learned that Lyden had consulted with the law firm of renowned attorney
Mr. Gerry Spence, but shortly after becoming aware of this fact Nike, Inc. agreed to
Lyden's original suggestion and the result was the "Intellectual Property License
Agreement" dated December 19, 1997, attached hereto as Exhibit F.
29. As part of the "Intellectual Property Agreement," Exhibit F, Lyden also
granted to Nike, Inc. a non-exclusive license agreement to the invention and know-how
associated with the aerodynamic apparel disclosure of Lyden made in August, 1989,
Exhibit D, should Nike, Inc. possibly choose to make such aerodynamic apparel in the
future.
30. Between May, 1990 and September, 1996, besides assisting Nike, Inc.'s in-
house and external patent counsel with identifying patentable designs and inventions,
screening outside inventors, and assisting in various patent litigations, Lyden also made
contributions to Nike, Inc.'s research and development efforts. As a result, he is a named
inventor on four design patents and fourteen utility patents assigned to Nike, Inc.,
namely, U.S. Design 347,106, U.S. Design 347,315, U.S. Design 370,116, U.S. Design
374,341, U.S. 5,384,973, U.S. 5,425,184, U.S. 5,595,004, U.S. 5,625,964, U.S.
5,709,954, U.S. 5,729,912, U.S. 5,786,057, U.S. 5,813,146, U.S. 5,832,636, U.S.
5,843,268, U.S. 5,906,872, U.S. 5,921,004, U.S. 5,987,780, and U.S. 6,055,746.
31. In particular, the cushioning and stability related teachings associated with
U.S. 5,384,973 entitled "Sole With Articulated Forefoot," and also U.S. 5,425,184, U.S.
5,625,964, and U.S. 6,055,746 entitled "Athletic Shoe With Rearfoot Strike Zone" which
are assigned to Nike, Inc. have resulted in successful products and competitive responses
within the footwear industry which have led to improvements in the cushioning and
stability characteristics of athletic footwear for the general public.
32. Lyden had prior experience coaching young people and with a mind to
prevent injuries, he sometimes called out the deficiencies in Nike, Inc's then current
products, and sought to improve the quality and performance of athletic footwear. Lyden
held that Nike, Inc. would not be able to move forward and make future product
improvements unless the company was willing to look honestly at the deficiencies and
limitations of its product offerings. Lyden's book entitled Distance Running, a portion
being attached hereto as Exhibit FF, which was published in August, 2003 includes an
entire chapter on the subject of athletic footwear, Chapter 9, "Injuries and Athletic
Shoes."
33. Lyden's concern with product integrity and willingness to stand up for higher
quality sometimes led to Lyden being perceived by others as a difficult personality on the
campus ofNike, Inc. However, Lyden had met the co-founder ofNike, Inc., Coach Bill
Bowerman many years before and kept in contact with him, and so knew that he shared
many of the same perceptions as Lyden regarding the products ofNike, Inc.
34. As discussed in paragraph nine of Lyden's letter to Nike, Inc.'s in-house
patent counsel Mr. James Niegowski dated April21, 2010, which is attached hereto as
Exhibit Q, Lyden had suggested and made drawings resembling the later commercialized
Nike, Inc. FREE athletic shoe during the time Lyden served an employee and consultant
to Nike, Inc. between May, 1990- September 9, 1998. In this regard, one ofLyden's
early concept drawings of a footwear sole which shall be provided to the Court after
Lyden and Nike, Inc. have reached an agreement concerning the possible need of a
protective order, and then indicated as Exhibit Z, can then be reviewed and compared
with the title page of U.S. 7,392,605, by Hatfield et al., attached hereto as Exhibit AA.
35. More broadly, Lyden had advocated the creation of athletic footwear which
permitted greater natural function of the toes and forefoot, and then cited the example of
the great Australian miler Herb Elliott, 1960 Olympic Champion at 1500 meters and his
late coach Percy Cerutty. In this regard, Lyden had also modified and provided a pair of
Nike, Inc. "Foot Digs" volleyball shoes for running on grass for use by Mr. Alberto
Salazar.
36. However, when Nike, Inc. later filed for utility patents relating to the FREE
athletic shoe, Lyden was not recited as one of the named inventors. Moreover, Nike, Inc.
did not disclose to the patent examiner its own most relevant prior art patents, e.g., U.S.
5,384,973 by Lyden entitled "Sole With Articulated Forefoot," attached hereto as Exhibit
EE, and also U.S. 5,425,184, U.S. 5,625,964, and U.S. 6,055,746 entitled "Athletic Shoe
With Rearfoot Strike Zone." Nike, Inc. has since obtained several patents which relate to
FREE athletic shoes, e.g., U.S. 6,990,755, U.S. 7,171,767, U.S. 7,290,357, U.S.
7,392,605, and U.S. 7,607,241, but then withheld certain relevant prior art information
and violated Nike, Inc.'s duty of disclosure with the U.S. Patent Office during the
prosecution of these patents.
37. In brief, Lyden invented U.S. 5,384,973 which was filed on December 11,
1992 and granted on January 31, 2005, Exhibit EE, and had advocated for the
commercialization of products resembling the Nike, Inc. FREE line of athletic shoes in
the early 1990's. However, Nike, Inc. didn't launch the FREE shoe until nearly a decade
year later in 2004. When the FREE shoe proved commercially successful, Nike, Inc.
wanted to protect the "golden egg" and secure additional patent protection. However, the
disclosure of Lyden's prior art teachings to patent examiners in the U.S. Patent Office
would have made it difficult to obtain new patents with claims having broad scope, and it
was not possible to extend the statutory period for which the earlier relevant Nike, Inc.
prior art patents would be in force. Lyden's earlier inventorship and Nike, Inc.'s most
relevant prior art patents were not disclosed to the patent examiners and U.S. Patent
Office. In brief, it will be repeatedly shown in the present complaint that Nike, Inc. has
and continues to exhibit a pattern of behavior which is not consistent with the MPEP
rules and relevant patent laws of the United States.
38. Again, when Lyden first advocated many of the aforementioned inventions at
Nike, Inc., the concepts often met with internal resistance. For example, during the time
Lyden worked as a regular employee on the Nike campus, a middle level manager who is
no longer with Nike, Inc. attempted to give Lyden a poor job review and even to fire him
on account of Lyden inventing for Nike, Inc. As a result, Lyden eventually came to
believe that he could be more productive by working as an independent consultant to
Nike, Inc.
39. Between 1984 and 1988, Lyden coached and later advised Mr. Steven
Plasencia, a member ofNike, Inc.'s club Athletics West, and also of the 1988 and 1992
U.S. Olympic teams in Track & Field. In February, 1996, Plasencia, age 39, missed
making his 3rd Olympic Team by one place in the Men's Olympic Marathon Trials.
Lyden then helped Plasencia in his successful effort to obtain a coaching position at the
University ofMinnesota.
40. In May, 1996, Lyden was introduced and provided a draft copy of his then
unpublished book Distance Running to Mr. Karl Keska, a British citizen and recent
graduate of the University of Oregon. Between 1996 and 2000, Lyden then provided
occasional training advice to Keska who made the British Olympic team and placed 8th in
the 10,000 meters at the 2000 Sydney Olympic Games.
41. Lyden also provided advice on training for the Boston Marathon to the former
head ofNike, Inc.'s product development group Mr. Tom Wolff.
42. In the summer of 1996, because of the politics which had existed at Nike, Inc.
regarding Lyden's efforts to invent on the company's behalf, Lyden suggested to Wolff
that Lyden instead become a % time consultant to Nike, Inc. and "invent in the garage" in
the manner ofNike, Inc.'s co-founder Coach Bill Bowerman. This suggestion was acted
upon and the result was Lyden's two year "Consulting Agreement" executed on
September 10, 1996, attached hereto as Exhibit G. In this regard, Lyden's two year%
time consulting contract with Nike, Inc. then extended between September 10, 1996, and
September 10, 1998.
43. However, before leaving to become an independent consultant to Nike, Inc. in
September, 1996, Lyden was introduced during his lunch hour to Dr. Morris Mann, Mrs.
Mary Decker Slaney, and her husband Mr. Richard Slaney by Mr. Alberto Salazar in the
Boston Deli on the Nike campus. Mann had a pending patent application relating to
footwear which was later submitted to Nike, Inc. for evaluation on a non-confidential
basis which later matured as U.S. 5,864,968. Mann informed Lyden that he had been
recruited by Salazar and was assisting him with providing nutritional and medical support
for Mary Decker Slaney. Mann also informed Lyden that he was going to have a meeting
with Mr. Phil Knight, the co-founder ofNike, Inc., later that same afternoon.
(Lyden and Nike, Inc., September 10, 1996- September 10, 1998)
45. Lyden's two year% time consulting contract as an inventor for Nike, Inc.
extended between September 10, 1996, and September 10, 1998.
46. The dialogue on exercise physiology and training between Lyden and Mann
led to later personal communications from their respective homes.
47. In a subsequent conversation with Lyden, Mann revealed that he had reviewed
1984 Olympic Champion Mrs. Joan Benoit Samuelson's blood work and had used it as a
rationale for attempting to convince her to take substances to improve her health and
athletic performance, but she refused.
48. The conversations between Lyden and Mann caused Lyden to suspect that
Mann and Salazar were engaged in foul play. In this regard, Mann informed Lyden that
he had worked previously with bicyclists in Europe, but that he was "under the radar" and
so it had been necessary for Salazar to look hard in order to fmd him.
49. Mary Decker Slaney failed a drug test after the 1996 Olympic Trials
competition in Atlanta, and this was made public in the article entitled "Drug Inquiry
Drags For Angered Slaney," by Jere Longman, published in the New York Times on May
15, 1997.
50. Lyden then researched Mann's background and found that his medical license
had been revoked in the State of California, and he was a convicted felon. Accordingly,
Lyden then ordered and obtained Mann's relevant public records from the State of
California.
51. Lyden researched Mann's more recent activities and was informed that Mann
had previously worked with bicycle racing teams in Europe and had then provided a
subcutaneous bolus or capsule for the controlled time release of anabolic substances to
athletes. Lyden also learned that DHEA, a precursor to testosterone which was not then
explicitly listed as a banned substance, had been suggested by Mann for use by Nike, Inc.
sponsored athletes.
52. In June, 1997, Lyden took this information to Mr. Paul Kelly, the acting head
ofNike, Inc.'s legal department in an effort to stop the use and provision of performance
enhancing drugs, or like substances, to Nike, Inc.'s sponsored athletes, and also to thwart
certain threatened or actual legal actions that Nike, Inc. was contemplating taking or
supporting on behalf of Mary Decker Slaney against the USOC, USATF, and the IAAF.
53. Between June and September, 1997, Lyden had another conversation with
Kelly. Lyden was told by Kelly that he had followed up and talked to Salazar, who
denied any wrongdoing. Kelly also informed Lyden that he had inquired about Knight's
reasons for being at the meeting with Mann. Lyden was told by Kelly that Knight had
been curious to meet Mann due to a long term skin condition that Knight suffers.
54. The public statements made by Salazar and Knight in the Oregonian, e.g., on
September 1 7, 1997, regarding the Decker Slaney matter were inconsistent with the
relevant facts and information which had been provided by Lyden to Nike, Inc.
55. By late September, 1997, it did not appear that Nike, Inc. was confronting and
taking action to stop Salazar or Mann, and so Lyden called and questioned both Salazar
and Mann about their behavior over the telephone.
56. In October, 1997, Lyden reported his phone discussions with Mann and
Salazar to Mr. Kelly in Nike, Inc.'s legal department, and argued that any contemplated
legal actions against the USOC, USA TF, and the IAAF would be improper given the
known facts and circumstances relating to the Decker Slaney case.
57. However, despite the information that Lyden had provided to the head of
Nike, Inc.'s legal department about Mann, Salazar, and Decker Slaney in 1997, Nike, Inc.
supported her lawsuit effort against the USOC and IAAF which was filed on April 12,
1999 in the U.S. District Court for the Southern District of Indiana, Indianapolis
Division, No. IP-99-0507-C-D/F-S.
58. On April17, 1999, Lyden received information that Knight, Mann, Salazar,
and Mrs. Joan Benoit Samuelson, the 1984 Women's Olympic Marathon Champion had
previously met on the Nike, Inc. campus, and that Mann had then discussed the possible
useofDHEA.
59. The Decker Slaney case received an unfavorable ruling in the U.S. District
Court and was later appealed to the U.S. Court of Appeals for the Seventh Circuit, 244
F3.d 580, where she received another unfavorable ruling on March 27, 2001.
60. Decker-Slaney then appealed the case to the U.S. Supreme Court, which
declined to hear the case on October 2, 200 1.
61. Lyden was disappointed by some of the actions ofNike, Inc. regarding the
Decker Slaney matter which he believed were unethical, and not in the public interest.
62. Lyden believes that Decker Slaney was led into making certain imprudent
choices by Salazar and Mann. Having endured over a dozen surgeries in her lifetime
relating to athletic injuries she is clearly a tough and determined person. From the time
she was a 13 year old teenage prodigy, Decker Slaney has often been surrounded by older
and powerful men who have sometimes wished to exploit her attractive physical
appearance and phenomenal athletic talent for the sake of their own desires, ambitions,
and business interests. Accordingly, Lyden holds that insofar as Decker Slaney has been
misled and victimized by others she is deserving of compassion, but also public sympathy
and support.
63. During the time of Lyden's% time consulting contract with Nike between
September 10, 1996 and September 10, 1998, Lyden submitted over a dozen invention
disclosures, and provided assistance to Nike, Inc. regarding some of their patent lawsuits.
64. Upon information and belief, Nike, Inc. did not have its research and
development and design groups act upon the various invention disclosures which Lyden
had made, nor did Nike, Inc. file for patents upon the inventions that Lyden provided
during the two year term of his consultantship. The subject matter contained in several of
Lyden's invention disclosures was instead commercialized and patented by competitors
ofNike, Inc.
65. Hellerick & Bradsby Co., a.k.a. the "Louisville Slugger" brand
commercialized an inflated air bladder inside an aluminum baseball bat and was also
granted the patent U.S. 6,053,827 on April 25, 2000.
66. Lyden came to believe and feel that he was in "golden-chains," and so he had
a candid discussion with the co-founder ofNike, Inc., Coach Bill Bowerman, after a track
meet at Hayward Field in Eugene, Oregon. Bowerman then suggested that Lyden do as
he had done earlier: "Start a new company and make better products."
67. When Lyden's two year consulting contract with Nike, Inc. came up for
possible renewal in September, 1998, he was one ofthe most prolific inventors in the
history ofNike, Inc., and Lyden's wife was then expecting their first child. Nevertheless,
Nike, Inc. elected not to renew Lyden's consulting contract.
68. However, the desire to end the consulting relationship with Nike, Inc. was
mutual. Given Lyden's "golden chains" relationship with Nike, Inc.'s research and
development group, and the way Nike, Inc. had chosen to handle the Decker Slaney case,
Lyden, for his part, also wished to end his consulting relationship with Nike, Inc. and to
start his own small business
(September 10, 1998- Present)
70. From September 11, 1998- present, Lyden has been self-employed as an
inventor and consultant in the sporting goods industry. For the sake of providing some
background information, a copy of Lyden's resume I CV is attached hereto as Exhibit
cc.
71. Lyden is presently a named inventor on fifty-one issued patents, and has four
patent applications pending.
72. In July, 1999, Lyden completed a screenplay entitled "'Karadji" about the
renowned Australian miler Herb Elliott the 1960 Olympic Champion at 1500 meters and
his late Coach Percy Cerutty.
73. In January, 2000, Lyden advised an Arabian horse trainer and helped to
establish a 160 kilometer World Record in endurance riding.
74. In October, 2000, and extending until June 30, 2001, Lyden entered into an
"'Option Agreement" and also an "'Option Agreement: Negotiation Period Extension"
with FILA, Inc., which documents are attached as Exhibit H. However, the company
went up for sale and a more comprehensive intellectual property license agreement was
not concluded.
75. In March, 2002, Lyden entered into an "'Intellectual Property and Prototype
Agreement" dated March 4, 2002 with Nike, Inc., which because of certain possible
confidentiality requirements shall be provided to the Court after an agreement is reached
with Nike, Inc. regarding the possible need of a protective order, and then identified as
Exhibit I.
76. Between March- October, 2002, Lyden provided to Nike, Inc. hard copies of
Lyden's issued and pending footwear patents including: U.S. 6,449,878 filed on March
10, 2000 and granted on September, 17, 2002, attached hereto as Exhibit J; U.S. patent
application serial number 09/573,121 filed on May 17, 2000 and which later matured as
U.S. 6,601,042, attached hereto as Exhibit K; provisional patent application serial
number 60/292,644 filed May 21, 2001 which included drawing figures 1-253;
provisional patent application serial number 60/345,951 filed December 29,2001 which
included drawing figures 1-360; provisional patent application serial number 60/360,784
filed March 1, 2002 including drawing figures 1-500; non-provisional patent application
serial number 10/152,402 filed on May 21, 2002 which later matured as U.S. 7,016,867,
attached hereto as Exhibit L; and, non-provisional patent application serial number
10/279,626 filed on October 24, 2002 which later matured as U.S. 7,107,235, attached
hereto as Exhibit M. All of these Lyden patents and patent applications were provided to
Nike, Inc. between March and October, 2002 on a non-confidential basis, thus the
information was in effect publicly disclosed on the date(s) they were provided by Lyden
to Nike, Inc. Accordingly, Lyden's patents and patent applications would constitute
relevant prior art regarding later filed patent applications ofNike, Inc. directed to like
subject matter.
77. In December, 2002, Lyden was informed that Nike, Inc. was not interested in
purchasing or licensing his intellectual property.
78. In 2003, Lyden contacted Mr. Chester Kyle of Weed, California, an expert on
the subject of aerodynamic drag and athletic apparel for assistance in editing Chapter 14
entitled "Aerodynamic Drag and Drafting" in Lyden's book in progress, Distance
Running, pages 354-365, Exhibit FF. Kyle helped edit and also provided two photos of
himself conducting experiments in a wind tunnel that were included in Distance Running,
on page 362.
79. Kyle and Mr. Len Brownlie, a graduate student at Simon Fraser University in
Canada, were consultants to Nike, Inc. and had performed experiments on the subject of
aerodynamic apparel in the late 1980's and early 1990's.
80. In 1988, Lyden had designed and caused to be made a racing singlet for use
by Mr. Steven Plasencia during the 1988 U.S. Olympic Trials in Indianapolis, Indiana
because of severe high heat and humidity conditions, as recounted in an article in the St.
Paul Pioneer Press, which is attached hereto as Exhibit DD.
81. Between 1988 - May, 1990, Lyden had shared information and including his
write-up entitled "Aerodynamic Athletic Apparel Background For U.S. Patent
Application And I OR Trademark Protection," dated August 31, 1989, Exhibit D, with
several of his coaching colleagues, but also Kyle, Brownlie, and Nike, Inc. In this regard,
Kyle believed and held that Lyden was the first to suggest the creation of a speedsuit
made of select multiple and different textile materials for producing enhanced
aerodynamic effects, and then pointed to the written description and drawing figures of
Exhibit D, in support.
82. Brownlie's research experiments were funded by Nike, Inc., and his Ph. D.
Thesis on the subject entitled "Aerodynamic Characteristics of Sports Apparel," was later
published in 1992.
83. Lyden did not file for patent protection on the subject of aerodynamic apparel
and so both his own information, and also Brownlie's Ph. D. thesis were placed in the
public domain between 1990-1992.
84. During the course oftheir discussions on the subject of aerodynamic apparel
in 2003, Kyle informed Lyden that Nike, Inc. had filed for a patent regarding the
aerodynamic speedsuit. Knowing that the information was in the public domain, Lyden
asked how could it be possible, and who had been named as inventors? In the abstract,
Lyden considered that Kyle, Brownlie, and himself were possible inventors, but the
question was moot because the information had been placed in the public domain
between 1990-1992. Kyle informed Lyden that someone on the Nike, Inc. campus had
called him and expressed the view that it would be better to have the named inventors be
regular employees working on the campus ofNike, Inc.
85. However, under the patent laws of the United States, it is not possible to
obtain a valid patent without the true inventors being named, or when the subject matter
has already been placed in the public domain. Nevertheless, Nike, Inc. had filed and was
granted U.S. 6,438,755 on August 27,2002 for an "Aerodynamic Garment For Improved
Athletic Performance And Method of Manufacture," attached hereto as Exhibit P, which
was consistent with the prior invention that was shown and discussed in Lyden's written
disclosure on the subject made in August, 1989, Exhibit D, and also the published
articles and works of Kyle and Brownlie which are listed in Distance Running, Exhibit
FF, on page 365.
86. In August, 2003, Lyden completed writing and published his 464 page book
entitled Distance Running, Exhibit FF.
87. As related in Lyden's letter to Nike, Inc.'s in-house patent counsel Mr. James
Niegowski, dated April21, 2010, attached hereto as Exhibit Q, Lyden later called and
met with Niegowski on the Nike, Inc. campus in order to discuss the facts and issues
relating to U.S. 6,438,755, Exhibit P. Lyden then provided Niegowski with copies of his
research paper entitled "Aerodynamic Athletic Apparel Background For U.S. Patent
Application And I OR Trademark Protection," dated August 31, 1989, Exhibit D,
Brownlie's Ph. D. thesis published in 1992 entitled, "Aerodynamic Characteristics of
Sports Apparel," and also a copy of Distance Running, Exhibit FF.
88. In view of the aforementioned facts and events, Lyden suggested that Nike,
Inc. take positive steps to place U.S. 6,438,755 for an "Aerodynamic Garment For
Improved Athletic Performance And Method of Manufacture," Exhibit P, in the public
domain. However, Nike, Inc. has instead maintained the patent in force and used it as a
scarecrow in the sporting goods industry.
89. In 2005, Lyden discovered by accident while using the U.S. Patent Office's
on-line patent search system, the existence of several later filed patents and patent
applications ofNike, Inc. including some of the same subject matter as that contained in
Lyden's own prior patents and patent applications which had been offered to Nike, Inc. in
2002.
90. The patents and patent applications ofNike, Inc. which Lyden then discovered
to be in conflict with his previously filed patents included: U.S. patent application serial
number 10/719,668 by Michael Aveni filed November 21, 2003 which later matured as
U.S. 7,100,308 on September 5, 2006, attached hereto as Exhibit N; U.S. patent
application serial number 10/349,398 by Grove et al. filed January 21, 2003 which had
already matured as U.S. 6,915,596 on July 12, 2005, attached hereto as Exhibit 0; and
also, a continuation U.S. patent application serial number 11/134,112 by Grove et al. filed
May 19,2005 which later matured as U.S. 7,076,890 on July 18,2006. In this regard,
one can compare and see the resemblance between drawing figures 491-492 of Lyden's
U.S. 7,101,235, Exhibit M, and the drawing figures shown on the title page(s) ofU.S.
7,100,308 by Aveni, Exhibit N, and U.S. 6,915,596 by Grove et al., Exhibit 0.
91. Because of the intellectual property issues and conflicts discussed in the above
paragraphs, Lyden called and met Nike, Inc. in-house patent counsel Mr. James
Niegowski for lunch on December 14,2005.
92. In the course of their conversation, Lyden discussed and showed to Niegowski
relevant figures from Lyden's earlier patents and patent applications that had been
provided and offered to Nike, Inc. in 2002 which clearly showed the same structures and
inventions for which Nike, Inc. had been seeking its own patent protection.
93. Lyden left the meeting with Niegowski on December 14, 2005 with the
impression and belief that Nike, Inc. would take appropriate measures to correct these
outstanding patent issues by taking constructive steps in the U.S. Patent Office.
94. On June 15, 2006, Lyden also provided by e-mail to Niegowski electronic
copies ofhis U.S. 7,016,867, Exhibit L, and U.S. 7,107,235, Exhibit M, in order to
make it easy for Nike, Inc. to search Lyden's patents and conduct due diligence when
filing and prosecuting Nike, Inc.'s own patent applications.
95. On January 17, 2007, Lyden entered into the first phase of an exclusive
license agreement regarding his footwear patents with Dash America, Inc., which does
business as Pearl Izumi, a Colorado corporation which was then owned by a parent
company, Nautilus, Inc., ofVancouver, Washington. However, Nautilus, Inc. suffered
business reverses soon afterwards, and then sold Pearl Izumi to Shimano, Inc. in order to
cover their financial debts. As a result, the second phase of the patent license agreement
with Pearl Izumi which would have entailed the commercialization of footwear product
did not take place, and the "Patent License Agreement," attached hereto as Exhibit R,
was terminated on July 16, 2007.
96. By November, 2007, Lyden discovered using the U.S. Patent Office's search
system that Nike, Inc. had continued to prosecute U.S. patent application serial number
10/719,668 by Michael Aveni, filed November 21, 2003 which matured as U.S.
7,100,308 on September 5, 2006, Exhibit N. Further, Nike, Inc. had failed to direct the
examiner's attention to the most relevant drawing figures, and had also misrepresented
certain facts relating to Lyden's aforementioned patents, Exhibits J- M during the
patent prosecution of U.S. 7,100,308 by Aveni.
97. Further, Lyden observed that Nike, Inc had done nothing about their U.S.
patent application serial number 10/349,398 by Grove et al. filed January 21, 2003 which
had matured as U.S. 6,915,596 on July 12, 2005, Exhibit 0.
98. In addition, Lyden observed that Nike, Inc. had continued to prosecute a
continuation U.S. patent application serial number 11/134,112 by Grove et al. filed May
19,2005 which had matured as U.S. 7,076,890 on July 18,2006.
99. Moreover, Lyden observed that Nike, Inc. had filed a continuation patent
application ofU.S. patent application serial number 111134,112 by Grove et al., namely,
U.S. patent application serial number 11/443,617 on May 30, 2006 which was then
pending.
100. While Nike, Inc. had disclosed some of Lyden's relevant patents to the
Examiner in the information disclosure statements associated with its two now issued
patents to Grove et al. and also a pending U.S. patent application, Nike, Inc. had not
demonstrated complete candor, and then directed the patent examiner's attention to the
most relevant drawing figures therein which Lyden had pointed out and discussed with
Nike, Inc's. in-house patent attorney Niegowski about two years earlier.
101. In an attempt to put a stop to Nike, Inc.'s misconduct in the U.S. Patent
Office, and prevent the issuance of further conflicting and possibly invalid patents, Lyden
filed a first protest under 3 7 C.F .R. 1.291 against Nike, Inc.'s patent application serial
number 11/443,617 on November 15, 2007, attached hereto as ExhibitS, a second
protest on January 9, 2008, attached hereto as Exhibit T, and a third protest on June 6,
2008, attached hereto as Exhibit U.
102. However, Nike, Inc. suppressed and did not make all of these protests of
record with the patent examiner in a timely manner, and so U.S. 7,444,763 issued on
November 4, 2008.
103. Nike, Inc. had by then filed another continuation application of U.S. patent
application serial number 111443,617, namely, U.S. patent application serial number
12/207,309 on September 8, 2008.
104. Lyden once again communicated with Nike, Inc. in-house patent attorney
Niegowski, but also with their outside patent counsel Mr. William F. Rauchholz about
U.S. patent application serial number 12/207,309, and as a result the three earlier Lyden
protests were made of record late in the prosecution of the case. The patent examiner
handling the case then substantially narrowed the number and scope of the allowable
claims, and U.S. 7,814,682 was then granted on October 19, 2010.
105. Nike, Inc. filed yet another continuation application of U.S. patent application
serial number 12/207,309, namely, U.S. patent application serial number 12/882,869. In
an office action dated June 4, 2012 the patent examiner rejected the pending claims under
37 U.S.C. 102 and 103 citing the Lyden patents. As a result, Nike, Inc. abandoned the
patent application as noted by the U.S. Patent Office on January 11, 2013.
106. Nevertheless, as a result ofNike, Inc.'s fraud and inequitable conduct, and
violation of its duty of disclosure during the prosecution of the aforementioned patent
applications by Grove et al., several parent patents had already been granted to Nike, Inc.
which are believed to be invalid. In this regard, a relevant discussion is provided in the
"Excerpt ofMPEP Chapter 2000, Section 2016," attached hereto as Exhibit TT.
107. In 2010, Lyden discovered another chain of conflicting Nike, Inc. patents by
Bhupesh Dua and I or Dua et al., namely, U.S. 6,931,762 filed December 18,2002 and
granted August 23, 2005, attached hereto as Exhibit V, U.S. 6,910,288 filed December
18, 2002 and granted January 28, 2005, U.S. 6,986,269 filed December 30, 2004 and
granted January 17, 2006, U.S. 7,131,296 filed January 17, 2006 and granted November
7, 2006, U.S. 7,347,011 filed March 3, 2004 and granted March 25, 2008.
1 08. As a result of this discovery, Lyden then searched of all the Nike, Inc. utility
patents which had been filed after Lyden's own prior disclosures to Nike, Inc. in 2002
and found more conflicting patents.
109. Lyden then prepared a fourteen page letter to Nike, Inc.'s in-house patent
counsel Niegowski dated April21, 2010, Exhibit Q, which indicated over a dozen later
filed conflicting patents ofNike, Inc.
110. On April21, 2010, Lyden met with Niegowski on the Nike, Inc. campus and
hand delivered the letter, Exhibit Q, and also several backup three ring binders including
the conflicting patent applications and patents which had been filed by Nike, Inc. to
Niegowski and then discussed their contents in some detail with him.
111. Upon information and belief, at the time Lyden's letter was delivered to
Niegowski on April21, 2010, there were at least a dozen patent applications which had
been later filed by Nike, Inc. that were in conflict with Lyden's patents and patent
applications which had been previously disclosed to Nike, Inc. in 2002. For a brief
summary regarding the content and tone of Lyden's letter of April21, 2010, Exhibit Q, it
would be beneficial to review page 1, and also the third paragraph on page 13 through the
end of the letter on page 14.
112. Niegowski responded to Lyden's letter of April21, 2010 with an e-mail letter
dated May 19, 2010 indicating that Nike, Inc. had no interest in purchasing or licensing
Lyden's intellectual property, attached hereto as Exhibit W.
113. Lyden questioned and needed to know whether Niegowski had actually
represented the facts and situation to high level executives at Nike, Inc., and so he
responded to Niegowski with the e-mail letter dated May 21, 2010, attached hereto as
Exhibit X.
114. Lyden then sent an e-mail letter to Nike, Inc. CEO Mr. Mark Parker, and also
Nike, Inc. executives Mr. Sandy Bodecker, Mr. Michael Donaghu, and Mr. Tom
McGuirk on May 21, 2010, attached hereto as Exhibit Y, which included Lyden's earlier
letter provided to Niegowski dated April 21, 201 0, Exhibit Q, in order to determine if it
was indeed the decision of high level executives at Nike, Inc. to continue to pursue
adverse and harmful actions regarding Lyden's intellectual property rights and business
efforts.
115. Lyden received no response from Nike, Inc.'s CEO Parker, Bodecker,
Donaghu, McGuirk, or Niegowski.
116. Meanwhile, on the other side of the Willamette River in Portland, Oregon, the
other athletic footwear industry giant, adidas America, Inc. and its parent company adidas
AG, had infringed upon several of Lyden's apparel and footwear patents.
117. Between 1999 and 2002, Lyden disclosed his issued and pending apparel and
footwear patents to adidas AG, but the company indicated that it had no interest in
Lyden's intellectual property.
118. In 2004, adidas AG began making athletic shorts which infringed upon
Lyden's U.S. 6,243,880. Lyden then contacted adidas AG's legal counsel Mr. Tim
Behean, and the matter was settled within a few months. While negotiating and working
on this settlement with adidas AG, Lyden disclosed his then most recently filed and
issued footwear patents along with the business plan for his start-up company Q Branch,
Inc., but adidas AG indicated that it had no interest in any of Lyden's patents related to
footwear.
119. However, less than a year later, adidas AG starting making the TUNIT soccer
shoe which conflicted and I or infringed upon several of Lyden's footwear patents and
patent applications which had been previously disclosed and offered to adidas AG, e.g.,
the subject matter contained in U.S. 6,601,042, and also the patent applications
corresponding to Lyden's later issued U.S. 7,016,867, and U.S. 7,107,235.
120. Adidas AG had also filed several conflicting patent applications by Wolfgang
Scholz directed to similar subject matter in the U.S. Patent Office that later matured as
U.S. 7,406,781 and U.S. 7,730,637. However, adidas AG had not originally disclosed to
the patent examiner handling these two cases the relevant aforementioned prior art Lyden
patents.
121. In response, Lyden filed three protests against these two adidas AG patent
applications under 37 C.F.R. 1.291. However, only one of these three protests was
entered by the U.S. Patent Office during the prosecution of these two adidas AG patent
applications. It was then the prerogative of adidas AG to enter the two protests.
However, despite Lyden's suggestion for adidas AG to be candid with the U.S. Patent
Office, the company instead withheld and did not make these two protests of record
during the prosecution of U.S. 7,406,781 and U.S. 7,730,637.
122. Adidas America, Inc. and its parent company adidas AG, commercialized and
sold the TUNIT soccer shoe in the United States between 2005-2010. During this time,
the TUNIT footwear product served as a technology and brand statement product for
adidas AG in association with the World Cup Soccer Championships and the Olympic
Games.
123. In 2010, the adidas AG TUNIT soccer shoe infringed upon four of Lyden's
utility patents, namely, U.S. 6,601,042, Exhibit K, U.S. 7,016,86, Exhibit L, U.S.
7,107,235, Exhibit M, and U.S. 7,752,775, attached hereto as Exhibit GG.
124. In September, 2010, adidas AG's legal counsel Behean became completely
unresponsive to Lyden's efforts to sell or license his relevant footwear patents to adidas
AG.
125. As a result, Lyden filed a complaint for patent infringement against adidas
America, Inc. and adidas AG relating to the TUNIT soccer shoe in United States District
Court, District of Oregon, Portland Division 3:10-CV-1249-BR on October 12, 2010, and
a copy of the third amended complaint is attached hereto, as Exhibit HH.
126. The aforementioned case was later settled out of court by the legal
representatives of adidas AG and Lyden, and was dismissed on October 19, 2011.
However, it has now become clear that adidas AG was already at work on the next
potential patent infringement, but then ... so was Nike, Inc.
127. Aware ofNike, Inc.'s numerous later filed and conflicting patent applications,
Lyden has maintained a priority claim to his earlier parent patent applications. In August
10,2010, Lyden had filed a continuation U.S. patent application serial number
12/803,891 including claims 1-20 directed to footwear structures that were present in
Lyden's parent patent applications which had been provided for review and offered to
Nike, Inc. back in 2002. As discussed above in paragraphs 89-106, Nike, Inc. had later
filed for and claimed similar footwear structures. Nike, Inc. had also suppressed several
of Lyden's protests in the U.S. Patent Office against some ofNike, Inc.'s later filed
patent applications. Accordingly, if an analogy may be made with "cattle rustling,"
Lyden needed to head Nike, Inc. off at the pass. The prosecution and allowance of
claims 1-20 in Lyden's U.S. patent application serial number 12/803,891 would have
clearly established Lyden's ownership of the intellectual property, but before the
application was prosecuted in the U.S. Patent Office, Nike, Inc. did something even more
surpnsmg.
128. On February 21,2012, Nike, Inc. CEO Mr. Mark Parker announced and
presented in New York City the aerodynamic apparel for use by Nike, Inc.'s sponsored
athletes in the upcoming London Olympic Garnes, but also the FL YKNIT Trainer+ shoe
upper, as shown and provided on the following Nike, Inc. website link:
http:/ /nikeinc .com/ summer-of-innovation news,nike-unvei Is-perfom1ance- innovations-
for-summer-of-competition#/inline/804(i
129. Medial and lateral side view photos of the Nike, Inc. FL YKNIT Trainer+
athletic shoe are provided below:
130. In addition, a superior view photo of the Nike, Inc. FL YKNIT Trainer+
athletic shoe is provided below:
131. The significance of Nike, Inc.'s commercialization of the FL YKNIT athletic
shoe has been widely discussed and recorded in the media, e.g., see attached hereto as
Exhibit 00: "Nike Flyknit May Reinvent Iconic Nike Swoosh," by Erik Siemers,
Portland Business Journal, March 30, 2012, and attached hereto as Exhibit PP: "Nike's
HTM Collaboration Shows OffFlyknit Potential," by Erik Siemers, Portland Business
Journal, April18, 2012. As discussed in Exhibit PP, the abbreviation HTM stands for
"Hiroshi, Tinker, Mark," and the design of the FL YKNIT shoes is represented as being a
product of the collaboration between "Nike CEO Mark Parker, Nike design legend
Tinker Hatfield, and renowned Japanese designer Hiroshi Fujiwara."
132. However, the key innovative footwear structures associated with the Nike,
Inc. FL YKNIT knitted shoe upper had been previously disclosed by Lyden to Nike, Inc.
in 2002. For example, certain knitted shoe upper structures associated with the Nike, Inc.
FL YKNIT had been disclosed in Lyden's U.S. patent application serial No. 10/279,626
filed on October 24, 2002 which later matured as U.S. 7,107,235, Exhibit M, as shown in
drawing figures 570-575 and discussed in columns 199-201, and in particular, the
attached brief excerpt of U.S. 7,107,235, attached hereto as Exhibit BB.
133. Nike, Inc. was rustling yet another piece of Lyden's intellectual property and
had already taken it to market. Accordingly, Lyden needed to give the FL YKNIT issue
priority and take immediate action in the U.S. Patent Office. In order to protect the
invention which Lyden had previously disclosed to Nike, Inc., Lyden responded to Nike,
Inc.'s CEO Parker's announcement about commercializing the FL YKNIT shoe by adding
claims 21-65 to Lyden's pending U.S. patent application serial number 12/803,891.
During the prosecution of this patent application, claim 20 was then cancelled, and claims
1-19 were withdrawn in favor of prosecuting new claims 21-65. The subject matter
defined in old claims 1-19 will instead be prosecuted in a pending divisional case U.S.
patent application serial number 13/465,021 filed May 6, 2012.
134. U.S. patent application serial number 12/803,891 was then prosecuted, and
U.S. 8,209,883 (" '883 ")by the PlaintiffRobert M. Lyden including allowed claims 1-42
was granted on July 3, 2012, and is attached hereto as Exhibit QQ, and a highly relevant
excerpt is also attached hereto for convenience as Exhibit UU.
135. In addition, Lyden also filed a continuation patent application serial number
13/465,020 on May 6, 2012, which includes pending claims 1-41.
136. As the formal process of discovery has not begun in this case, all of the
possibly infringing Nike, Inc. FL YKNIT athletic shoes which have been commercialized
and sold in the United States may not be known to Lyden. However, upon information
and belief, the following Nike, Inc. FL YKNIT shoes infringe upon Lyden's U.S.
8,209,883: the Nike, Inc. FL YKNIT Trainer+; the Nike, Inc. FL YKNIT LUNAR1 +; and,
the Nike, Inc. FL YKNIT Chukka.
137. For example, upon information and belief, the Nike, Inc. FL YKNIT Trainer+
shoe shown above on page 31 directly and indirectly infringes (e.g., by contributory and
inducement) independent Claim 1, and dependent Claims 2-8, 10-14, 16-21, 23-32, and
34-40 of the Lyden '883 patent. Claims 9, 15, and 33 are believed by Lyden to not be
presently infringed and so they have been struck out and shown in blue font below, and
without having the results of formal discovery Lyden is uncertain as to whether claims
16, 22, and 29 are being infringed and so these claims have been shown in blue font
herein. For example, the FL YKNIT Trainer+ shoes comprise, as recited in the Lyden
'883 patent:
1. An article of footwear comprising;
an upper comprising a knit textile material element, said upper comprising an
anterior side, a posterior side, a superior side, an inferior side, a medial side,
and a lateral side, an exterior side, and an interior side, said upper comprising
a collar section which extends substantially about an opening defined by said
upper for receiving a wearer's foot, a dorsal section comprising a dorsal pad
extending on said superior side of said upper above the position of the instep
of said wearer's foot, a vamp section extending substantially on said superior
side of said upper over the position of a plurality of the phalanges of said
wearer's foot, a quarter section further comprising a medial quarter and a
lateral quarter, said medial quarter extending on said medial side of said upper
along a junction between said upper with said sole to said collar section and
said dorsal section, and said lateral quarter extending on said lateral side of
said upper along a junction between said upper with said sole to said collar
section and said dorsal section, a tip section extending on said anterior side of
said upper proximate to the position of the distal end of a plurality of the toes
of said wearer's foot and also about a portion of said medial side and said
lateral side of said upper along a junction between said upper and said sole,
and a posterior section on said posterior side of said upper and extending
about a portion of said medial side and said lateral side substantially about the
position of the heel of said wearer's foot, said posterior section extending
upwards on said posterior side to said collar section, wherein each of the
dorsal, collar, vamp, quarter, and tip sections of said upper comprises a
different knit textile material structure having different elongation
characteristics.
2. The article of footwear according to claim 1, wherein each of said upper
sections comprise different mechanical properties.
3. The article of footwear according to claim 1, wherein each of said upper
sections comprise different physical properties.
4. The article offootwear according to claim 1, wherein each of said upper
sections comprise different knit textile materials.
5. The article of footwear according to claim 1, wherein said knit textile material
element forms substantially all ofthe exterior side of said upper.
element forms a majority of the exterior side of said upper.
7. The article of footwear according to claim 1, wherein said collar section
comprises a knit textile material having resilient elastic properties, said dorsal
section comprises a knit textile material comprising a dorsal pad, said vamp
section comprises a 4-way stretchable knit textile material, said quarter
section comprises at least a 2-way stretchable knit textile material, said tip
section comprises a knit textile material having greater resistance to
elongation relative to said vamp section, and said posterior section also
comprises a knit textile material having greater resistance to elongation
relative to said vamp section.
8. The article of footwear according to claim 1, further comprising a tongue.
9. The article of footwear according to claim 1. \vherein said upper is tongueless.
1 0. The article of footwear according to claim 1, further comprising a shoe lace
functionally coupled to said upper.
11. The article of footwear according to claim 1, further comprising a strap
functionally coupled to said upper.
12. The article of footwear according to claim 11, said strap comprising a closed
loop on said posterior side.
13. The article of footwear according to claim 1, further comprising an insole.
14. The article of footwear according to claim 1, further comprising a sole
coupled with said upper.
15. The article of footwear according to claim 14. wherein said sole is removabl:
coupled .vith said upper.
16. The article of footwear according to claim 1. t'tmher comprising a plastic
material coupled to said knit textile material of said upper.
1 7. The article of footwear according to claim 1, further comprising a backtab on
said posterior side.
18. The article of footwear according to claim 1, said upper further comprising
edges, said edges being joined to comprise a seam extending longitudinally on
said inferior side of said upper.
19. The article of footwear according to claim 1, said upper further comprising
edges, said edges being joined to comprise a seam extending vertically on said
posterior side of said upper.
20. The article of footwear according to claim 1, said knit textile element
comprising a circular knitted textile material.
21. The article of footwear according to claim 1, wherein said upper comprises a
sock-like structure.
22. The article of footwear according to claim I. wherein said upper comprises a
biodegradable knit textile material.
23. The article of footwear according to claim 1, wherein at least one additional
element is secured to and forms a portion of said exterior side of said upper.
24. The article of footwear according to claim 1, wherein said collar section
comprises a resilient elastic textile material and said vamp section comprises
at least one 4-way stretchable knit textile material.
25. The article of footwear according to claim 1, wherein said quarter section
comprises at least one 2-way stretchable knit textile material.
element forms at least a portion of said superior side, said lateral side, said
medial side, said anterior side, and said posterior side of said upper.
27. The article of footwear according to claim 3, wherein said different physical
properties comprise the relative stretchability of said upper sections.
28. The article of footwear according to claim 1, wherein the different sections of
said knit textile material element incorporate different textile materials.
29. The article of footwear according to claim 1. wherein said knit textile material
element incorporates a single type of textile material having a plurality of knit
constructions.
30. The article of footwear according to claim 1, wherein the knit textile material
incorporated in said tip section of said upper on said anterior side and also
extending to at least a portion of said medial side and said lateral side along a
junction between said upper and said sole comprises greater resistance to
elongation relative to the knit textile material incorporated in said collar
section.
31. The article of footwear according to claim 1, wherein the knit textile material
incorporated in said anterior section of said upper on said anterior side and
also extending to at least a portion of said medial side and said lateral side
along a junction between said upper and said sole has greater resistance to
elongation relative to the knit textile material incorporated in said vamp
section.
incorporated in the posterior section of said upper on said posterior side and
also extending to at least a portion of said medial side and said lateral side
along a junction between said upper and said sole has greater resistance to
elongation relative to the knit textile material incorporated in said collar
section.
;.3. The article of footv.ear accord w claim l, said upper comprising at least a
"'v.uy knit textile matt?rial on at least a portion of said inferior :;ide
extending betv.een ~ ; a i d medial ~ ; i d e and ~ ; a i d lateral ~ i d e . wherein the length of
aid upper can be elongated by at least one half size.
34. The article of footwear according to claim 1, further comprising a longitudinal
opening on said superior side of said upper in said dorsal section for
accommodating the entry of a wearer's foot, a tongue, and a plurality of small
annular shaped openings on each of said medial side and said lateral side of
said upper for receiving a lace, and the knit textile material included in the
area proximate to said longitudinal opening including said plurality of small
annular openings for receiving a lace comprises greater resistance to
elongation relative to the knit textile material included in said vamp section.
35. The article of footwear according to claim 1, further comprising a dorsal pad
comprising a tongue.
36. The article of footwear according to claim 1, wherein said upper comprises a
sock-like structure.
3 7. The article of footwear according to claim 1, wherein said knit textile material
element comprises a three dimensional knit textile material.
element further comprises a woven textile material.
element extends on at least said anterior side, said medial side, said lateral
side, and said superior side.
40. The article of footwear according to claim 1, wherein the different sections of
said knit textile element are coupled with one another.
138. Nike, Inc. also directly and indirectly infringes (e.g., by contributory and
inducement) independent Claim 41 of the Lyden '883 patent. For example, the Nike, Inc.
FL YKNIT Trainer+ shoes comprise, as recited in Claim 41 of the Lyden '883 patent:
41. An article of footwear comprising an upper, said upper comprising an anterior
side, a posterior side, a superior side, an inferior side, a medial side, and a
lateral side, an exterior side, and an interior side, said upper comprising a
collar section, a dorsal section, a vamp section, a quarter section, a tip section,
and a posterior section, said upper comprising a circular knitted textile
material element having a plurality of knitted constructions, at least the collar,
dorsal, vamp, quarter, and tip sections of said upper comprising different
knitted constructions and being coupled with one another and the different
knitted constructions of said sections of said upper comprise different
structures having different mechanical properties.
139. Nike, Inc. also directly and indirectly infringes (e.g., by contributory and
inducement) independent Claim 42 of the Lyden '883 patent. For example, the Nike, Inc.
FL YKNIT Trainer+ shoes comprise, as recited in Claim 42 of the Lyden '883 patent:
42. An article of footwear comprising: a sole for providing a ground-contacting
surface, and an upper for receiving a foot of a wearer, said upper being
coupled with said sole and having a plurality of different sections each of said
different sections comprising a knitted textile material comprising different
structure, said plurality of different sections comprising a tip section, a vamp
section, a dorsal section, a collar section, at least one quarter section, and a
posterior section, at least the tip, vamp, dorsal, collar, and quarter sections of
said upper comprising knitted textile materials having different mechanical
properties.
140. Given that Nik:e, Inc. apparently intended to commercialize the FL YKNIT
Trainer+ shoe without purchasing or licensing Lyden's patents, Lyden decided to instead
contact adidas AG's outside patent counsel Geoff Gavin and also adidas AG's outside
trademark counsel Stephen Feldman whom Lyden had met in connection with the "Lyden
vs. adidas AG, et al." patent suit 3: 1 0-CV -1249-BR, Exhibit HH, which had been settled
in 2011.
141. However, what Lyden did not and could not know was that adidas AG had
been preparing a competitive "knock off' response to the Nike, Inc. FL YKNIT Trainer+
shoe, and later introduced the so-called PRIMEKNIT shoe in June, 2012, as disclosed in
the article entitled: "It's a Seamless Revolution: Adidas Follows Nike Flyknit with
Primeknit" by Eric Siemers, Portland Business Journal, July 26, 2012, attached hereto as
Exhibit II. In contrast with the "first-of-its-kind running shoe" misrepresentation found
in the adidas AG press statement which is quoted in Exhibit II, adidas AG had prior
knowledge and possession of Lyden's relevant patent information relating to knitted shoe
uppers which had been filed with the U.S. Patent Office on October 24, 2002. For
example, Lyden's pending patent application corresponding to U.S. 7,107,235 had been
made known to adidas AG's legal counsel Behean at least as early as 2004. Further, Mr.
Mikal Peveto, a former employee ofNike, Inc. and adidas AG, who was slated to be the
CEO of Lyden's own start-up company, had pitched Lyden's relevant intellectual
property to executives at adidas AG in 2008, as shown on pages 11-12 of the attached
"Lyden vs. adidas AG et al." complaint filed in 2010, Exhibit HH. The knitted shoe
upper was a key component in Lyden's plan to make customizable shoes on demand, and
bring footwear manufacturing back to the United States. Adidas AG then hired Peveto to
become the Director of Running for adidas America, Inc., and he still holds the position
today.
142. Lyden was aware ofNike, Inc.'s later filed patents directed to the subject of
knitted shoe uppers, and so Lyden attempted to warn adidas AG about their existence.
Lyden also predicted that Nike, Inc. would take legal action for patent infringement
against adidas AG. Given the fact that adidas AG does not have any pending or issued
patents relating to their own PRIMEKNIT competitive response to Nike, Inc.'s
FL YKNIT athletic shoe, Lyden felt that it could be in the mutual interest of adidas AG
and Lyden to enter into a business relationship. Accordingly, Lyden offered to sell or
license his relevant footwear patents to adidas AG in May, 2012.
143. Apparently being unwilling to enter into a business agreement, and afraid of
the possibility that Lyden might sue adidas AG over the PRIMEKNIT shoe, which is
something Lyden had not threatened to do, adidas AG then responded by filing on
August 21,2012 in the U.S. Patent Office and sending Lyden by U.S. mail a copy of a
request for a reexamination of his U.S. 8,209,883. So there is Lyden's answer from
adidas AG as if to say: "Let no good deed go unpunished."
144. The reexamination is now in progress under the old rules and process and can
be viewed using the U.S. Patent Office PAIR system by searching for patent control/
serial number 95/002,094. There has already been a first office action by the patent
Examiner, and a response. Lyden has not amended any of the issued claims of U.S.
8,209,883 due to arguments based upon the recited prior art references. In fact, Lyden
has provided evidence to the U.S. Patent Office that adidas AG has committed fraud in
bringing, and also in prosecuting the reexamination, as shown in Exhibit JJ, which is
attached hereto.
145. Moreover, as Lyden had predicted and warned, Nike, Inc. has now filed a
patent lawsuit against adidas AG over the PRIMEKNIT shoe and was granted a
preliminary injunction by a German court on September 24, 2012.
146. In response, adidas AG has filed a reexamination ofNike, Inc.'s U.S.
7,347,011 by Dua et al. in addition to the present reexamination of Lyden's U.S.
8,209,883. The reexamination ofNike, Inc.'s U.S. 7,347,011 is being conducted under
the new rules and process and can be viewed by following the provided link below, and
searching by the patent number alone, that is, 734 7011.
https://ptabtrials.uspto.go\
1
prweb/PR Web! J)AP2; Hcl5xOSeX yQR YZAnTXXCg%5B
%58*/!STANDARD?Userldentitier=searchuser
147. If and when the adidas AG PRIMEKNIT shoe goes on sale in Portland,
Oregon, something which was expected to happen soon, but it may not now due in part to
Nike, Inc.'s patent lawsuit with adidas AG, it would be the third possible infringement of
one or more of Lyden's patents by adidas AG over the past nine years.
148. The Nike, Inc. FL YKNIT athletic shoes were provided to many athletes in a
bright yellowish color, and received considerable media exposure during the 2012
London Olympic Games. The knitting machines required for making such knitted uppers
cost at least 50K each, and so both Nike, Inc. and adidas AG are making a substantial
capital investment in making such new knitted footwear uppers.
149. Whereas Nike, Inc. has been granted several later filed patents on the subject
of knitted shoe uppers, adidas AG was late to get started, and has no issued patents
relating to knitted uppers, and no pending applications, if such exist, have yet to be
published. In brief, having lost the race in both the research and development and legal
departments, and with it the possibly of obtaining its own intellectual property having
broad scope for making and selling knitted shoe uppers, adidas AG, upon information
and belief, has sought to change this undesired competitive outcome by misusing the U.S.
Patent Office.
150. However, Nike, Inc. has not shown the relevant rules and governing laws
relating to intellectual property, and the patent examiners working in the U.S. Patent
Office much respect either. Nike, Inc. had been informed by Lyden that the company's
later filed Dua and Dua et al. patent(s), e.g., Exhibit V, were in conflict with Lyden's
prior patent application disclosures to Nike, Inc. when Lyden discussed and provided his
letter dated April 21, 2010 to Nike, Inc.'s in-house patent counsel Niegowski, which is
attached hereto as Exhibit Q.
151. Nike, Inc. has filed a preliminary response in the present reexamination case
ofNike, Inc.'s U.S. 7,347,011 by Dua et al., which is attached hereto as Exhibit KK.
What Nike, Inc.'s response does not say is that Nike, Inc. was in possession of Lyden's
previously filed patent applications including: provisional patent application serial
number 60/345,951 filed December 29, 2001 which included drawing figures 1-360;
provisional patent application serial number 60/360,784 filed March 1, 2002 including
drawing figures 1-500; non-provisional patent application serial number 10/152,402 filed
May 21, 2002 which later matured as U.S. 7,016,867 and included drawing figures 1-523;
and non-provisional patent application 10/279,626 filed October 24, 2002 which later
matured as U.S. 7,107,235 and included drawing figures 1-575, at least one year and
closer to two years before the company filed for Nike, Inc.'s U.S. 7,347,011 by Dua et al.
which is also directed to the subject matter of knitted uppers. Again, the Lyden patent
disclosures to Nike, Inc. in 2002 were made on a non-confidential basis. Accordingly,
Lyden's patent information was in effect published and would constitute relevant prior art
to any later filed Nike patent application(s) which would possibly be directed to the same
subject matter. However, Nike, Inc. did not make any of the previously filed Lyden
patents applications of record during the prosecution ofNike, Inc.'s U.S. 7,347,011 by
Dua et al., nor has Nike, Inc. done so in its now pending reexamination.
152. After Lyden took the steps in the U.S. Patent Office described above in
paragraphs 133-135 in order to protect his inventions, Lyden searched the U.S. Patent
Office website www.uspto.gov for the most recent Nike, Inc. utility patents which had
issued or been published since the time of Lyden's earlier meeting and discussion with
Niegowski at Nike, Inc. on April, 21, 2010.
153. As a result, Lyden discovered even more conflicting patents which have been
filed by Nike, Inc. In this regard, a 15 page document entitled "Problematic Nike, Inc.
Patents" having a section entitled "Conflicting Nike, Inc. Patents" which indicates over
twenty conflicting patents that were filed by Nike, Inc. after Lyden provided Nike, Inc.
with copies of Lyden's prior patent applications in 2002 is attached hereto, as Exhibit
LL. Upon information and belief, Nike, Inc. has continued to obtain intellectual
property rights by making fraudulent representations with regards to inventorship and/or
violating Nike, Inc.'s duty of disclosure and withholding relevant prior art information
from patent examiners in the U.S. Patent Office. Insofar as Nike, Inc.'s actions can be
shown to be knowing and willful, Lyden believes that Nike, Inc.'s actions comprise
intentional interference with Lyden's prospective economic advantage, fraud, and
conversion under the common law. Alternatively, insofar as Nike, Inc may wish to claim
the various acts of commission and repeated acts of omission recited, e.g., in Exhibit Q,
and also Exhibit LL, have been due to human error and/or a bad case of collective
corporate amnesia and forgetfulness, Lyden believes that Nike, Inc.'s behavior
nevertheless comprises negligent interference with Lyden's prospective economic
advantage under the common law.
154. Again, Nike, Inc. has reviewed and considered, but declined to purchase or
license Lyden's relevant footwear patents between March, 2002- present. Instead, Nike,
Inc. has later filed for numerous conflicting patent applications which have matured into
U.S. patents, but some ofthese are believed to be invalid due to numerous acts of fraud
and inequitable conduct, and violation ofNike, Inc.'s duty of disclosure in the U.S.
Patent Office. In this regard, Nike, Inc. is entitled to file for improvement patents over
the inventions of Lyden and other inventors, but Nike, Inc. is not entitled to: name false
inventors; omit inventors; falsify the facts and date of the invention; by either overt act or
acts of omission to hide or suppress relevant prior art information and violate the duty of
disclosure; and I or, knowingly claim matter having broader scope than the possible
improvement to which Nike, Inc. may be justly entitled. In this regard, Lyden believes
that it would be improper and unjust for Nike, Inc. to retain any value obtained as a result
ofNike, Inc.'s wrongful conduct.
155. To make an analogy with cattle rustling, Lyden's intellectual property has
sometimes been misappropriated and then repackaged into later filed patent applications
by Nike, Inc. The company has then kept numerous patent examiners in the U.S. Patent
Office in the dark about both the origins of the subject matter and also the most relevant
prior art concerning Nike, Inc.'s later filed patent applications in order to cause by such
acts of fraud, inequitable conduct, violation of the duty of disclosure, and conversion, the
U.S. Patent Office to improperly grant and essentially re-brand Lyden's inventions and
intellectual property with the Swoosh brand and trademark ofNike, Inc.
156. The actions ofNike, Inc. and also adidas AG in filing and prosecuting
numerous conflicting patents after being provided with copies of Lyden's previously filed
patents and patent applications between 2002-2008, and commercialization of the "IT"
shoes including the adidas AG TUNIT, Nike, Inc. FL YKNIT, and adidas AG
PRIMEKNIT, has harmed Lyden's ability to secure investors for a small business start-
up, or alternatively, to license or sell his intellectual property to other parties in the
sporting goods industry.
157. Lyden has offered to sell or license his intellectual property to Nike, Inc.
numerous times between 2002- present. Lyden's efforts to obtain investors for his
business start-up Q Branch, Inc. were also known to Nike, Inc. and the general public,
e.g., see the article entitled "If The Shoe Fits," by Brian Fitzpatrick which appeared in the
Portland, Oregon Willamette Week newspaper in November, 2004, attached hereto as
Exhibit MM. Moreover, Lyden has had numerous conversations and written
communications with Nike, Inc.'s in-house patent counsel Niegowski about Nike, Inc.'s
various conflicting patents, and his own patent portfolio which includes U.S. 8,209,883,
Exhibit QQ. However, Lyden's repeated good faith efforts to resolve the outstanding
patent issues described in the present complaint have been unsuccessful, and Nike, Inc.
has become completely non-responsive.
Nike, Inc.'s Improper Promotions and Marketing Efforts
159. Due to the fact that Lyden is an inventor and business person in the sporting
goods industry, and also because of his knowledge of sport and experience as a coach,
Lyden is aware of two persistent streams of improper Nike, Inc. conduct which are
harmful to Lyden's present and future business efforts, but also that of others. Nike,
Inc.'s improper actions regarding Lyden's intellectual property have been discussed in
some detail in the present complaint in paragraphs 8-157 above. Accordingly, the
following paragraphs 160-182 will focus on certain harmful and unfair business practices
ofNike, Inc. which pertain to improper athlete promotion and marketing efforts.
160. Upon information and belief, some of the athlete promotions, advertising,
marketing and sales efforts ofNike, Inc. have been improper and associated with fraud
because they have been aided by the provision of performance enhancing drugs, or like
substances, to some ofNike, Inc.'s elite sponsored athletes, in order to win public
goodwill and market share by making fraudulent representations of legitimate athletic
success, and gain an unfair competitive advantage over Nike, Inc.'s business rivals in the
sporting goods industry.
161. As discussed in paragraphs 48-62 above, Lyden had opposed Mr. Alberto
Salazar's actions in seeking out and providing performance enhancing substances to
Nike, Inc. promotional athletes in 1997. However, this was not the first time that Lyden
had confronted such activity at Nike, Inc. There is a history of individuals employed by
Nike, Inc. supporting the use of performance enhancing drugs by Nike, Inc.'s sponsored
athletes going back to at least the early 1980's. In this regard, Lyden had previously
discovered, and attempted to stop such activity by Mr. Dick Brown at Nike, Inc.'s club
Athletics West in 1983. In this regard, Lyden reported the problem to Nike, Inc. co-
founder and retired University of Oregon Coach Bill Bowerman.
162. However, Lyden's best efforts to get Nike, Inc. to effectively deal with the
issue of performance enhancing drugs, or like substances in sport were not successful in
1983, or 1997. Further, Lyden had received threats by Dr. Morris Mann during a phone
conversation in 1997. Lyden was then advised to keep a record of his information and
experiences. Accordingly, Lyden then began to write a living document entitled "Nike,
Drugs and Sport," which provides a historical and narrative account relating to Nike,
Inc.'s behavior on this subject.
163. In 2005, University of Oregon Track & Field Head Coach Martin Smith was
effectively forced out, and resigned due in large part to political pressure which had been
brought by Salazar and Nike, Inc. In this regard, Salazar has a building named after him
on the Nike, Inc. campus in Beaverton, Oregon, and he has been responsible and/or
enjoyed considerable power and influence over the selection of distance runners who
have been provided with promotional contracts. At the same time, Salazar has also
coached some ofNike, Inc.'s highest profile and elite athletes including, Mr. Mo Farah,
and also Mr. Galen Rupp.
164. Smith coached at the University of Oregon between 1998-2005 and the
athletic program then improved and was successful. In 2005, Smith was hired by the
University of Oklahoma which then had struggling Track & Field and Cross-Country
programs, but no more.
165. At the time of Smith's departure, some individuals in the Oregon track
community who were aware of Salazar's history and activity relating to performance
enhancing drugs or like substances feared that Salazar would seek and obtain a coaching
position at the University of Oregon. In brief, they did not want to see drugs or like
substances being pushed on student-athletes at the University of Oregon. In this regard,
an individual in the Oregon track community called Lyden for possible support. Lyden
shared this individual's concerns, and so gave his current copy of"Nike, Drugs, and
Sport" to the individual who was planning to communicate with an administrator at the
University of Oregon. Being "old school," Lyden felt that Salazar ought to have the
opportunity to discuss the contents with the author of the document being present face to
face in the same room, and so he volunteered to make himself available for such a
meeting with Salazar and members of the University of Oregon administration.
However, no one ever called Lyden. Vin Lananna was later recruited from Stanford
University and hired as the next Head Track & Field Coach at the University of Oregon,
and he proved to be extremely successful.
166. Unfortunately, nothing has really stopped the efforts ofNike, Inc. to provide
information and performance enhancing drugs, or like substances, and related services to
their promotional athletes. Make no mistake, not all athletes and coaches who have been
sponsored or associated with Nike, Inc. have participated in this improper activity.
However, many elite athletes have been approached over the years, and some have made
decisions with adverse consequences. In this regard, Salazar has been in a power position
and been responsible or had influence over the selection of distance runners who have
been provided with promotional contracts, and at the same time he has also been in the
position of overseeing or coaching some of these high profile athletes. Accordingly, the
temptation to take performance enhancing drugs or like substances has been combined
with Nike, Inc.'s financial leverage as concerns the ability of an athlete to get a
promotional contract, and also certain training related suggestions or imperatives as
defined by Coach Salazar. While not legal minors, many recruited distance runners have
been young college graduates in their early twenties. However, Mr. Galen Rupp was a
minor when Salazar began coaching him, and Mrs. Mary Decker Slaney was also a minor
when she first became a Nike, Inc. promotional athlete in the 1970's.
167. In the 1980's, Mr. Dick Brown, an administrator at Nike, Inc.'s club Athletics
West facility in Eugene, Oregon was monitoring and supporting the use of performance
enhancing steroid drugs with Nike, Inc. promotional athletes. However, Brown's activity
was confronted by Lyden, Mr. Robert Sevene, and Mr. Jeff Johnson. In response, Brown
moved out of the club Athletics West building, and took a lower profile.
168. On June 2, 1986, a Nike, Inc. sponsored athlete named Mr. Jeff Drenth, died
of unknown causes at the Athletics West location, and Nike, Inc., then closed the facility
down on July 11, 1986.
169. Nevertheless, in the mid-1990's, Salazar recruited Mr. Morris Mann, a doctor
having a revoked medical license in the State of California to assist Decker Slaney and
other promotional athletes ofNike, Inc. Decker Slaney had a positive test result after a
competition in 1996. Mann's activity was then investigated by Lyden who provided the
information to Nike, Inc.'s legal department.
170. Salazar has in more recent years engaged Dr. Jeffrey Brown of Houston,
Texas, and Nike, Inc. has been paying for his services, as discussed in the recent Wall
Street Journal article published on April 10, 2013, entitled "U.S. Track's Unconventional
Physician Dr. Brown Treats Runners For A Disorder Not Known to Afflict Them. His
Patients' Medal Count: 15 Olympic Golds," by Sara Germano and Kevin Clark, Wall
Street Journal, April 10, 2013, attached hereto as Exhibit SS.
171. Accordingly, Nike, Inc's activity in seeking and obtaining the services of
various individuals for the purpose of enhancing the performance ofNike, Inc.'s
sponsored athletes spans at least three decades.
172. Lyden's repeated efforts to bring an end to the improper activity by attempting
to work with persons inside Nike, Inc. were not successful in 1983 or 1997.
1 73. Given that Nike, Inc. had supported legal actions against the USOC and
IAAF, Lyden came to believe that someone in an appropriate role and position of
authority regarding the governance of sport and also law enforcement should have
knowledge of the relevant information in his possession. Accordingly, Lyden shared the
information in his possession with several persons associated with the governance of
sport and law enforcement between 1997-201 0.
174. Lyden believed that would probably be the end of his involvement, but the
issue ofNike, Inc., and performance enhancing drugs and sport later resurfaced in
August, 2012.
175. The 2012 Olympic Games in London took place between July 27, 2012 and
August 12, 2012. Lyden saw a report on the evening news about Mo Farah and Galen
Rupp, who were coached by Salazar, winning Gold and Silver Medals in the 10,000
meters event on August 4, 2012.
176. Nike, Inc. enjoyed favorable public exposure with their infringing FL YKNIT
athletic shoe, and adidas AG had also countered with the launch of their PRIMEKNIT
athletic shoe during the 2012 Olympic Games, and these developments were of concern
to Lyden.
177. After the conclusion of the Olympic Games in 2012, Lyden received a call
from one of his brothers. Lyden's brother had received a call from an individual about a
phone conversation which had recently taken place with Salazar, and wished to warn
Lyden about the substance of Salazar's call.
178. Lyden was informed that after Mr. Mo Farah and Mr. Galen Rupp had
achieved success with their 1-2 finish in the Olympic 10,000 meters event, Salazar had
received questions and calls from foreign news reporters who questioned Salazar about
the possible means which had been used to obtain the results. Lyden was also informed
that Salazar had communicated his belief that Lyden was responsible for the skeptical
reception that he had received by some members of the foreign press and media.
However, Lyden doesn't know any members of the foreign press. Lyden was informed
that one of the questions posed to Salazar by reporters had to do with gene splicing or
manipulation. Lyden was informed that Salazar had accused Lyden of"blogging" and
saying negative things about him out on the Internet. Lyden has heard of"blogging," but
he doesn't know how to do it. Lyden was informed that Salazar had communicated a
threat and said that he had contacted a lawyer and was considering suing Lyden for libel.
Lyden is aware that Mr. Lance Armstrong had made the same kind of threats to Mr. Greg
LeMond, and also that Salazar had worked with Armstrong concerning his efforts to
compete in the triathlon event and run a marathon in recent years. Lyden was then
informed that Salazar had said something even stranger and darker: Salazar had asked
whether he (Salazar) and his family were safe from Lyden?
179. Between 1983- present, Lyden's intent has been to make Nike, Inc. aware of
certain facts and issues relating to the use of performance enhancing drugs and like
substances, and help Nike, Inc. effectively address the problem. In response, at least one
individual associated with Nike, Inc. has perceived and treated Lyden as a threat.
However, Lyden's objective has been to correct behavior that is not only harmful to
others, but also to Nike, Inc.
180. Other companies in the sporting goods industry, e.g., adidas AG, Puma SE,
New Balance Athletic Shoe, Inc., and ASICS, as well as Lyden's own "Q Branch, Inc."
have been engaged in competition with Nike, Inc. Some of the different areas of business
competition include public goodwill for their brand(s), the perceived added value of their
products which are due to innovation and a certain exclusivity which can be provided by
intellectual property rights, and also the effectiveness of promotions, marketing, and
advertising efforts which seek to attract customers and increase market share and sales.
181. The actions ofNike, Inc. relating to the provision of performance enhancing
drugs or like substances, and related medical services to their promotional athletes may
be of concern to agencies or organizations such as USATF, IAAF, USOC, FDA, and
USADA for issues which relate to their applicable competition rules and other laws of the
United States.
182. However, in the context ofthe competitive business environment and public
marketplace in the United States, Lyden believes that the actions ofNike, Inc. relating to
helping Nike, Inc.'s promotional athletes to cheat, and the making of false representations
as to the legitimacy of such tainted athletic performances in order to fraudulently enhance
Nike, Inc.'s brand image and take away sales from other competitors and instead claim
them for Nike, Inc., constitutes a form of unfair competition and a shamelessly unfair
business practice, but also a deceptive business practice (the exhibited athletic
performance being the result of cheating and not the quality of shoes, apparel, or the
athlete's character traits), and fraud on the general public.
The Public Interest Has Been Harmed
184. Portland, Oregon is the world headquarters ofNike, Inc., and also the U.S.
headquarters of adidas AG. Nike, Inc. and adidas AG together enjoy about sixty percent
of the market share in athletic footwear sales worldwide.
185. Lyden worked independently to create a valuable intellectual property
portfolio relating to the footwear industry between 1998 - 2013.
186. adidas AG commercialized the TUNIT soccer shoe which infringed several of
Lyden's patents, and then made it their primary technology and brand statement in the
soccer product category between 2005-2010, and the company may also soon be
importing the PRIMEKNIT athletic shoe.
187. Nike, Inc. made the FL YKNIT athletic shoe their primary technology and
brand statement footwear product during the 2012 London Olympic Games. Further,
Nike, Inc. is presently selling FL YKNIT athletic shoes in the State of Oregon, and
elsewhere in the United States, which are believed to be infringing upon Lyden's U.S.
8,209,883, Exhibit QQ. Nike, Inc. has announced plans to expand the scope of
FL YKNIT product offerings in the future. Moreover, upon information and belief, Nike,
Inc. has filed numerous conflicting patent applications and improperly obtained certain
patent rights by fraud and inequitable conduct, and violation of the duty of disclosure in
the U.S. Patent Office, and thereby converted the intellectual property for which Lyden
has a rightful claim or ownership.
188. Lyden was granted an MA degree in Public Administration from the Hubert
H. Humphrey Institute at the University ofMinnesota in 1988, and recognizes that he is
not the first, nor that he will be the last inventor to have negative experiences with large
companies which may be ethically challenged. If an inventor can't protect and defend his
intellectual property, and his or her efforts to start of small business are quashed by the
predatory actions of two large companies which together enjoy an oligopoly and about
sixty percent of the market share in an industry, then the prospects are certainly not good
for successful innovation and business growth in the United States. Accordingly, Lyden
seeks a judgment against Nike, Inc. which may possibly serve to establish a legal
precedent and more perfect outcome for inventors and small businesses which would be
in the public interest now, and in the future.
189. Portland, Oregon has the potential to become a hub for the sporting goods
industry just as it has become a hub for the electronics industry, that is, our so-called
"Silicone Forest." Most of the job creation in American is the result of the creation and
growth of small businesses. In order to compete with large and established companies
having greater human, material and fmancial resources it is imperative for most small
business start-ups to obtain and be able to protect their intellectual property as discussed
in "Intellectual Property and the U.S. Economy: Industries in Focus," by the Economics
and Statistics Administration and U.S. Patent and Trademark Office, March, 2012,
attached hereto as Exhibit NN.
190. However, Nike, Inc. is believed to have willfully committed numerous acts of
fraud and inequitable conduct, and violated the duty of disclosure in the U.S. Patent
Office, in order to convert Lyden's intellectual property for the benefit ofNike, Inc.
Simultaneously, Nike, Inc. has harmed Lyden's ability to license or sell his intellectual
property, and/or secure investors for a small business start-up. Further, Nike, Inc. has
and continues to sell FL YKNIT shoes which infringe upon Lyden's U.S. 8,209,883.
Whereas Lyden wished to bring footwear manufacturing back to the United States and
make custom footwear upon demand using certain novel features of his inventions and
business model, Nike, Inc. is believed to have converted and infringed Lyden's
intellectual property and instead continues to make the bulk ofNike, Inc.'s footwear
products in the Far East.
191. Nike, Inc.'s numerous and repeated improper actions with regards to Lyden's
intellectual property, and improper athlete promotions and marketing efforts which have
been aided by the provision of performance enhancing drugs and like substances to some
ofNike, Inc.'s elite sponsored athletes in order to gain unfair advantage over Nike, Inc.'s
business rivals in the sporting goods industry, both provide evidence of a pattern of
fraudulent and unfair business practices which have and will continue to thwart free and
fair competition in the marketplace.
192. In light of the facts and history of events, the improper and wrongful actions
ofNike, Inc. have been intentional, willful, and predatory in nature, and the clear aim,
intent, and effect ofNike, Inc.'s actions have and continue to be those of an intellectual
property rustler, and small business "start-up killer."
193. The general public has and will continue to be harmed unless Nike, Inc. is
compelled by the Court to desist from predatory actions directed against inventors and
small businesses in the future. Lyden believes that Nike, Inc.'s unlawful actions need to
be stopped, and that Nike, Inc. should be required to make just restitution.
194. Accordingly, Lyden asks the Court to provide the relief which is respectfully
requested within the following Claims and Prayer for Relief.
FIRST CLAIM FOR RELIEF
Patent Infringement
196. Lyden is the owner of United States Patent No. 8,209,883 ("the '883 patent")
entitled "Custom Article of Footwear and Method of Making the Same" which issued on
July 3, 2012.
197. Since its issuance on July 3, 2012, Defendant Nike, Inc. has been and now is
directly infringing the '883 patent in Oregon, in this judicial district, and elsewhere in the
United States by, among other things, manufacturing, using, selling, importing and /or
offering for sale footwear that infringe one or more claims of the '883 patent, to the
injury of Lyden. Exemplar infringing articles of the Nike, Inc. FL YKNIT shoes being
manufactured, sold and /or offered for sale are shown in Exhibit RR.
198. Nike, Inc. has been and is actively inducing infringement and has contributed
to infringement of the Lyden '883 patent by retailers, customers, sponsored teams,
promotional athletes, and sales personnel by their making, using, selling, and offering for
sale FL YKNIT shoes. Nike, Inc. is thus liable for infringement of the '883 patent
pursuant to 35 U.S.C. 271.
199. Upon information and belief, the Nike, Inc. FL YKNIT shoes directly and
indirectly infringe (e.g., by contributory and inducement) at least independent Claims 1,
41, and 42, and dependent Claims 2-8, 10-14, 16-21, 23-32, and 34-40 of the Lyden '883
patent.
200. At least after Nike, Inc. has had actual notice of the '883 patent and over
Lyden's continued objections, Nike, Inc. has willfully infringed, and knowingly induced
infringing acts with the specific intent to induce another's infringement. Nike, Inc.
continues to willfully infringe the '883 patent without justification.
201. Nike Inc.'s infringement has damaged or impaired the value of the '883
patent.
202. As a result of the Nike, Inc.'s infringement of the '883 patent, Lyden has
suffered monetary damages that are compensable under 35 U.S.C. 284 in an amount not
yet determined but believed to be in excess of 15 million dollars ($15,000,000.00), and
Lyden will continue to suffer such monetary damages in the future unless Nike Inc.'s
infringing activities are permanently enjoined by this Court.
203. Unless permanent injunctions are issued enjoining Nike, Inc. and its agents,
servants, employees, representatives, affiliates, and all others acting on its behalf from
infringing the '883 patent, Lyden will be greatly and irreparably harmed.
204. This case presents exceptional circumstances within the meaning of35 U.S.C.
285 and Lyden is thus entitled to an award of his reasonable attorneys' fees.
SECOND CLAIM FOR RELIEF
Intentional Interference With Prospective Economic Advantage
206. Lyden has an expectancy in continuing and advantageous economic
relationships with current and prospective investors, purchasers, and/or licensees of
Lyden's footwear patents.
207. These relationships contained the probability of future economic benefit in the
form of the ability to attract investors and launch a profitable new company, and/or
alternatively, to enter into profitable intellectual property purchase or license agreements
relating to Lyden's footwear patents.
208. Had Nike, Inc. refrained from engaging in the unlawful and wrongful conduct
described in this complaint, there is a substantial probability that Lyden would have been
able to obtain investors, and/or alternatively, sell or license Lyden's footwear patents to
one or more prospective buyers or licensees.
209. On information and belief, Nike, Inc. was aware of Lyden's footwear patents
and his efforts to attract investors for a small business start-up company, and/or
alternatively, sell or license Lyden's footwear patents, but intended to interfere with and
disrupt Lyden's business efforts by unlawfully and willfully infringing the Lyden '883
Patent. In this regard, Nike, Inc. has taken the first mover position in the marketplace
from Lyden, and taken public goodwill and profits away from Lyden and instead claimed
such for Nike, Inc.
210. Moreover, during the prosecution ofNike, Inc.'s later filed patents
substantially directed to the same subject matter as the earlier filed and/or issued
footwear patents of Lyden, Nike, Inc. committed fraud and inequitable conduct, and
violated its duty of disclosure with the U.S. Patent Office. Nike, Inc.'s actions were
intended to wrongfully obtain false title to the same intellectual property and take public
goodwill and profits away from Lyden with the intent to injure Lyden's business and
instead improve its own.
211. As a result ofNike, Inc.'s actions, Lyden has suffered economic harm,
including, but not limited to, loss of profits associated with the launch of a company with
the support of investors, and/or alternatively, the sale or license ofLyden's footwear
patents. Nike, Inc.'s wrongful conduct was a substantial factor in causing this harm.
212. Lyden believes that the aforementioned acts ofNike, Inc. were willful and
malicious, oppressive, and in conscious disregard of Lyden's rights, and that Nike, Inc.'s
acts described above were done with the deliberate intent to injure Lyden's business and
improve its own. Lyden is therefore entitled to punitive damages to punish their
wrongful conduct and deter future wrongful conduct.
THIRD CLAIM FOR RELIEF
Negligent Interference With Prospective Economic Advantage
214. Lyden has an expectancy in continuing and advantageous economic
relationships with current and prospective investors, purchasers, and/or licensees Lyden's
footwear patents.
215. These relationships contained the probability of future economic benefit in the
form of the ability to attract investors and launch a profitable new company, and/or
alternatively, to enter into profitable intellectual property purchase or license agreements
relating to Lyden's footwear patents.
216. Had Nike, Inc. refrained from engaging in the unlawful and wrongful conduct
described in this complaint, there is a substantial probability that Lyden would have been
able to obtain investors, and/or alternatively, sell or license Lyden's footwear patents to
one or more prospective buyers or licensees.
217. On information and belief, Nike, Inc. was aware of Lyden's footwear patents
and his efforts to attract investors for a small business start-up company, and/or
alternatively, sell or license Lyden's footwear patents, and knew or should have known
that its actions would interfere with and disrupt Lyden's business efforts by unlawfully
and willfully infringing the Lyden '883 Patent. In this regard, Nike, Inc. has taken the
first mover position in the marketplace from Lyden, and taken public goodwill and profits
away from Lyden and instead claimed such for Nike, Inc.
218. Moreover, during the prosecution ofNike, Inc.'s numerous later filed patents
substantially directed to the same subject matter as the earlier filed and /or issued Lyden
footwear patents, Nike, Inc. committed fraud and inequitable conduct and violated its
duty of disclosure with the U.S. Patent Office. Nike, Inc. knew or should have known
that its actions would lead to its wrongfully obtaining false title to the same or conflicting
intellectual property, and take public goodwill and profits away from Lyden and thereby
injure Lyden's business efforts and instead improve its own.
including, but not limited to, loss of profits associated with the launch of his company Q
Branch, Inc. with the support of investors, and/or alternatively, the sale or license of
Lyden's footwear patents. Nike Inc.'s wrongful conduct was a substantial factor in
causing this harm.
FOURTH CLAIM FOR RELIEF
Conversion
221. During the prosecution ofNike, Inc.'s numerous later filed patent applications
which are directed to the substantially the same subject matter as the earlier filed and I or
issued Lyden patents, Nike, Inc. committed fraud and inequitable conduct, and/or
violated its duty of disclosure with the U.S. Patent Office.
222. Nike, Inc. intended to wrongfully obtain false title to the intellectual property,
and take public goodwill, company valuation, and potential profit away from Lyden, and
to instead claim it for Nike, Inc.'s own benefit. The desired and practical effect has been
to simultaneously harm Lyden's intellectual property and business efforts, and to improve
Nike, Inc.'s own. In this regard, Nike, Inc.'s actions resemble those of an intellectual
property "cattle rustler" which has succeeded in converting the intellectual property of
Lyden and using it to make and sell products under the Nike, Inc. "Swoosh" brand and
trademark.
223. Nike, Inc.'s wrongful actions in filing for and prosecuting numerous later filed
patent applications, including fraud and inequitable conduct, and/or the violation of its
duty of disclosure in order to convert the intellectual property rights of Lyden constitutes
a misuse of the U.S. Patent Office.
224. Lyden at no time consented, expressly or impliedly, to Nike, Inc.'s attempts to
attain false title to the same intellectual property associated with Lyden's patents, or to
Nike, Inc.'s willful infringement of the Lyden '883 Patent.
225. Nike, Inc. has knowingly made fraudulent representations and/or violated its
duty of disclosure while seeking patent protection for numerous inventions which were
previously disclosed by Lyden to Nike, Inc. and known by Nike, Inc. to already be the
subject of Lyden's issued and/or pending patent applications in the U.S. Patent Office.
Nike Inc.'s numerous acts of fraud and conversion of the intellectual property of Lyden
when seeking and /or obtaining its conflicting patents has diminished the value of
Lyden's patents, and also that ofhis small business start-up Q Branch, Inc.
226. As a result ofNike Inc.'s actions, Lyden has suffered economic harm,
including, but not limited to, loss of profits associated with the launch of a company with
the support of investors, and/or alternatively, the sale or license of Lyden's footwear
patents. Nike, Inc.'s wrongful conduct was a substantial factor in causing this harm.
227. Nike, Inc. has infringed the Lyden '883 Patent beginning on July 3, 2012.
Nike, Inc. has obtained unjust and substantial benefit from the sale of infringing products
to third parties without Lyden's consent and without paying Lyden for the value of the
Lyden '883 Patent.
228. Nike Inc.'s improper willful infringement of the '883 Patent has interfered
with and diminished Lyden's rights in that property.
229. Allowing Nike, Inc. to retain the benefits received as a result of its wrongful
acts would unjustly benefit Nike, Inc. at Lyden's expense.
230. Lyden is entitled to an award of the value of the damages associated with the
willful infringement of the Lyden '883 Patent, and Nike, Inc. then wrongfully taking the
first mover position in the marketplace and public goodwill for its own benefit.
231. In addition, Lyden is entitled to restitution ofNike Inc.'s ill-gotten gains, but
also for the injury Nike, Inc. has caused Lyden as a result of its numerous acts of fraud
and conversion which have harmed and diminished the value of Lyden's intellectual
property and business efforts.
malicious, oppressive, and in conscious disregard of Lyden's rights, and that Nike Inc.'s
improve its own. Lyden is therefore entitled to punitive damages to punish Nike Inc.'s
FIFTH CLAIM FOR RELIEF
Fraud
234. Nike, Inc. has engaged in unfair competition and unlawful business practices
by fraudulently representing itself to have been the first to invent footwear and apparel
that had been previously invented by Lyden, and taking the frrst mover position in the
marketplace, public goodwill and revenue due Lyden for the Nike, Inc. brand.
235. Nike, Inc. has committed fraud and inequitable conduct, and violated its duty
of disclosure in the U.S. Patent Office in order to gain false ownership of intellectual
property rights of Lyden, engaged in conversion, and intentional interference with
prospective economic advantage, as alleged herein, all in an effort to gain and maintain
an unfair competitive advantage regarding Lyden's intellectual property and business
efforts.
236. Nike, Inc. has willfully infringed upon the Lyden '883 Patent, and has
improperly and unlawfully taken commercial advantage of Lyden's efforts and
investment in this patent.
237. In light ofNike, Inc.'s conduct, it would be inequitable to allow Nike, Inc. to
retain the benefit of the funds and public goodwill obtained by Nike, Inc. through fraud,
conversion, and unlawful use of Lyden's intellectual property.
238. Nike, Inc.'s fraudulent and unfair business practices have unjustly minimized
Lyden's competitive advantage and have caused and are causing Lyden to suffer
damages.
239. Nike, Inc.'s numerous and repeated fraudulent actions with respect to Lyden's
intellectual property, and its fraudulent athlete promotions, advertising, marketing and
sales efforts which have been aided by the improper provision of performance enhancing
drugs and like substances to some of Nike, Inc.'s sponsored athletes in order to gain
unfair competitive advantage over its business rivals in the sporting goods industry, both
provide evidence of a pattern of fraudulent and unfair business practices which have and
will continue to harm and thwart free and fair competition in the marketplace.
including, but not limited to, loss of profits associated with the launch of a small business
start-up with the support of investors, and/or alternatively, the sale or license of Lyden's
footwear patents. Nike, Inc.'s wrongful conduct was a substantial factor in causing this
harm.
241. Nike, Inc. should be compelled to disgorge the profits and other benefits it has
obtained in violation of law, and be enjoined from further fraudulent, unlawful, unfair,
and deceptive business practices.
improve its own. Lyden is therefore entitled to punitive damages to punish Nike, Inc.'s
SIXTH CLAIM FOR RELIEF
Unjust Enrichment I Restitution
244. Nike, Inc. has been and now is directly infringing the '883 patent in Oregon,
in this judicial district, and elsewhere in the United States by, among other things,
manufacturing, using, selling, importing and /or offering for sale footwear that infringe
one or more claims ofthe '883 patent, to the injury of Lyden.
245. Nike, Inc. has filed numerous patents substantially directed to the same
subject matter as the earlier filed and/or issued footwear patents of Lyden, and then
committed fraud and inequitable conduct, and violated its duty of disclosure with the U.S.
Patent Office. Nike, Inc.'s actions were intended to wrongfully obtain false title to the
same intellectual property and take public goodwill and profits away from Lyden with the
intent to injure Lyden's business and instead improve its own. As a result ofNike, Inc.'s
actions, Lyden has suffered economic harm, including, but not limited to, loss of profits
associated with the launch of a company with the support of investors, and/or
alternatively, the sale or license of Lyden's footwear patents.
246. Nike, Inc.'s numerous and repeated fraudulent actions with respect to Lyden's
intellectual property, and its fraudulent athlete promotions, advertising, marketing and
sales efforts which have been aided by the improper provision of performance enhancing
drugs and like substances to some of Nike, Inc.'s sponsored athletes in order to gain
unfair competitive advantage over its business rivals in the sporting goods industry, both
provide evidence of a pattern of fraudulent and shamelessly unfair business practices
which have and will continue to harm Lyden, and others, and thwart free and fair
competition in the marketplace.
24 7. Nike, Inc. has and continues to receive benefits in the form of market share,
sales revenue and profits on products which have been represented by Nike, Inc. as being
covering by patents, which upon information and belief, are invalid because ofNike,
Inc.'s actions of fraud and inequitable conduct, and violation of its duty of disclosure in
the U.S. Patent Office. The certain exclusivity which Nike, Inc. has been granted and
improperly enjoyed as a result of its misconduct has resulted in other potential
competitors in the sporting goods industry not being able to provide a variety of similar
products, but also possibly at lower prices. As a result, Lyden and the general public
have and will continue to be harmed.
improve its own. Lyden is therefore entitled to punitive damages to punish Nike, Inc.'s
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, Robert M. Lyden, respectfully prays for judgment against
Defendant, Nike, Inc., as follows:
1. A judgment declaring that Nike, Inc. has infringed one or more claims of the '883
patent literally and/or under the doctrine of equivalents;
2. A judgment declaring that Nike, Inc. has willfully infringed one or more claims of
the '883
patent literally and/or under the doctrine of equivalents;
3. A preliminary and/or permanent injunction prohibiting Nike, Inc. and its officers,
directors, employees, agents, affiliates, divisions, branches, subsidiaries, and all others
acting in concert with Nike, Inc. or on its behalf from further infringing the '883 patent;
4. An award to Lyden of damages to compensate for Nike, Inc.'s past and present
acts of infringement of the '883 patent, including costs, and prejudgment and post-
judgment interest;
5. An award to Lyden of enhanced damages due to Nike, Inc.'s willful infringement
of the '883 patent as provided under 35 U.S.C. 284;
6. A judgment and award to Lyden in an amount to be determined by the Court and
increased as provided by applicable law due to Nike, Inc.'s intentional interference with
Lyden's prospective economic advantage;
increased as provided by applicable law due to Nike, Inc.'s negligent interference with
Lyden's prospective economic advantage;
increased as provided by applicable law due to Nike, Inc.'s conversion of Lyden's
intellectual property;
increased as provided by applicable law due to Nike. Inc.'s fraud and/or violation of its
duty of disclosure in the U.S. Patent Office, and Lyden's many and repeated efforts to
communicate and oppose Nike, Inc.'s improper actions;
increased as provided by applicable law due to Nike, Inc.'s improper and fraudulent
athlete promotions efforts involving the provision and use of performance enhancing
drugs, or like substances to promotional athletes in order to gain an unfair competitive
advantage in the marketplace over Lyden and others, and associated fraud on the general
public;
11. A judgment and order finding that this is an exceptional case within the meaning
of 35 U.S.C. 285 and awarding to Lyden his reasonable attorneys' fees; and,
12. For any other and further relief as the Court may deem just and proper under the
circumstances.
JURY TRIAL DEMAND
Plaintiff Robert M. Lyden respectfully requests a trial by jury of any and all issues
so triable that are raised herein or which hereinafter may be raised in this action.
DATED: April18, 2013
Respectfully Submitted By:
~ ~ $ . ~
Robert M. Lyden
18261 S.W. Fallatin loop
Aloha, OR 97007
E-mail: robertlyden@comcast.net
Phone: (971) 219-1200

Lyden v. Nike

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