IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CREATIVE INDUSTRIES LLC Plaintiff v.

CIVIL ACTION NO. SA-CA-13-577

WINVIC SALES, INC. Defendant

ORIGINAL COMPLAINT I. PARTIES 1. Plaintiff, Creative Industries LLC (Plaintiff), is a Texas limited liability

company having its principal place of business in Boerne, Texas, the Western District of Texas, San Antonio Division. 2. Defendant, Winvic Sales, Inc. (Defendant), is a Canadian corporation having its

principal place of business at 401 Bentley St., Unit #1, Markham, Ontario Canada L3R9T2. II. JURISDICTION 3. U.S.C. 1121. 4. 5. The amount in controversy exceeds the minimal jurisdictional requirements. Venue is proper in this District pursuant to 28 U.S.C. 1391. Jurisdiction is proper pursuant to 28 U.S.C. 1331, 1332, and 1338, and 15

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This Court has personal jurisdiction over the Defendant since Defendant has

sufficient minimum contact with this State and maintenance of the suit in this Judicial District does not offend traditional notions of fair play and substantial justice. On information and belief, Defendant has engaged in continuous and systematic activities in Texas, including, but not limited to, either directly or indirectly through its licensed manufacturers, marketers or retailers, soliciting business, offering to sell, and selling goods in Texas, both through online internet sales into Texas and through locations in Texas. 7. Plaintiffs claims arise in this Judicial District and a substantial part of the

property that is the subject of the action is situated in this Judicial District. III. FACTS A. PLAINTIFF 8. Plaintiff is a small, Texas company which has had its principal place of business

in Boerne, Texas, since 2004. 9. Plaintiff sells various lantern products, and in particular lanterns styles 009-11-

0938, 009-11-0939, and 009-11-0040 (collectively, Lantern Products) from its Boerne, Texas business. B. DEFENDANT 10. On information and belief, Defendants business may be described as a patent

licensing company, a non-practicing entity, or a patent troll. 11. On information and belief Defendant does business nationally, principally by

filing patent infringement lawsuits and by licensing its patent rights to manufacturers, marketers, and retailers to manufacture, market, and sell licensed products through national retailers and national Internet retailing. 2

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On information and belief, Defendant either directly or through licensed

manufacturers, marketers and retailers, licenses, markets, offers to sell and sells Defendants products nationally, including in Texas, and including in the Western District of Texas. 13. On information and belief, Defendant, either directly, or through licensed

manufactures, marketers and retailers, has established distribution channels nationally, including in Texas, and including in the Western District of Texas. 14. Defendant is the assignee of numerous United States patents, including United

States Patent, Number 7,093,961, entitled Lantern with Imitation Flame Source (the 961 Patent). 15. On information and belief, Defendants activities concerning its patents, either

directly or through Defendants licensed manufacturers, marketers or retailers, or through Defendants threats of litigation against manufacturers, marketers or retailers who sell and Texas, are directed to Texas commerce and affect Texas commerce. 16. On information and belief, Defendant, either directly or through Defendants

licensees, solicits business, offers to sell and sells products covered by the 961 Patent in Texas, and in the Western District of Texas. 17. Defendant has a pattern of threatening to file lawsuits and filing lawsuits which

lawsuits assert that various third parties products infringe Defendants patents, including the 961 Patent, and some such products are sold in Texas. C. THE INSTANT DISPUTE 18. Defendant asserts that Plaintiffs Lantern Products infringe the 961 Patent and

has threatened Plaintiffs operations and sales, which are conducted from its offices in Boerne, Texas. 3

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Defendant has asserted to at least one of Plaintiffs customers, namely a retailer

who sells Plaintiffs Lantern Products in Texas, that Plaintiffs Lantern Products infringe the 961 Patent. Defendant has threatened at least one of Plaintiffs customers, namely, a retailer who sells Plaintiffs Lantern Products in Texas with patent infringement litigation due to the customer selling Plaintiffs Lantern Products, which Defendant asserts infringes the 961 Patent. Plaintiffs threatened customer has retail operations in Texas, including in the Western District of Texas, and sells or has sold Plaintiffs Lantern Products from its retail locations in Texas, including in the Western District of Texas. 20. Defendants threats against Plaintiffs customers have injured and are injuring

Plaintiff in Texas, including within the Western District of Texas. 21. Plaintiffs Lantern Products do not infringe the 961 Patent because, among other

reasons, it does not contain all elements of any of the claims of the 961 patent. 22. this Court. 23. Plaintiffs headquarters, personnel most knowledgeable concerning facts relevant Plaintiffs threatened Lantern Products profits exceed the jurisdictional limits of

to the dispute, and records containing facts relevant to the dispute are located in Texas. Plaintiffs injuries are being suffered in Texas. IV. DECLARATORY JUDGMENT ACTION 24. Counsel for Defendant have reviewed and analyzed Plaintiffs Lantern Products

styles 009-11-0938, 009-11-0939, and 009-11-0040 relative to the claims of the 961 Patent. 25. 26. The 961 Patent has three independent claims, namely, claims, 1, 9, and 17. If Plaintiffs Lantern Products do not infringe any of claims 1, 9, or 17, then

Plaintiffs Lantern Products do not infringe the 961 Patent. 4

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Claim 9 of the 961 Patent includes the element or elements:

a polished tip at the free end of the imitation wick exhibiting specular reflection; and the first light source being positioned and oriented to illuminate from above the polished tip of the imitation wick to create a bright spot from light reflected from the first light source to engender an impression on the part of an observer of an exposed flame extending from the translucent, lightdiffusing body. 28. Plaintiffs accused Lantern Products styles 009-11-0938, 009-11-0939, and 009-

11-0040 do not have an imitation wick with a polished tip at its free end exhibiting specular reflection to create a bright spot from light reflected from a first light source. 29. Plaintiffs accused Lantern Products styles 009-11-0938, 009-11-0939, and 009-

11-0040 do not contain all of the elements of Claim 9 of the 961 Patent. 30. Claim 17 of the 961 Patent includes the element or elements:

an imitation wick extending upwardly from a central depression of the upper surface of the translucent, light scattering body, the imitation with counting a polished reflective tip to visible extending above the translucent, light scattering body; a super bright light emitting diode oriented to project light downwardly... the polished reflective tip to produce. a hot spot evocative of an open flame on the polished reflective tip, and an energization circuit for causing the super bright light emitting diode to luminescence with a flicker. 31. Plaintiffs accused Lantern Products styles 009-11-0938, 009-11-0939, and 009-

11-0040 do not have an energization circuit for causing a super bright light emitting diode to luminescence with a flicker. 32. Plaintiffs accused Lantern Products styles 009-11-0938, 009-11-0939, and 009-

11-0040 do not contain all of the elements of Claim 17 of the 961 Patent. 5

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Claim 1 of the 961 Patent includes the element or elements:

a first light source located within the cap where it is spaced from the light scattering translucent body so that light emitted from the first light source illuminates the light scattering, translucent body from its upper surface inwardly to produce a diffuse glow from within a region of the light scattering, translucent body. 34. The following emphasized portion of claim 1, namely, so that light emitted

from the first light source illuminates the light scattering, translucent body from its upper surface inwardly to produce a diffuse glow from within a region of the light scattering, translucent body, was added to by the patent applicant to claim 1 to overcome an Office Action rejecting the underlying claim 1 as obvious in light of prior art. 35. Plaintiffs Lantern Products include a light source and a plastic Candle shaped

body (the latter, a Candle). The light source is spaced from the Candle. Light from Plaintiffs light source diffuses in the space between the light source and the Candle. Diffusion of the light between the light source and Candle reduces the intensity of the light as it travels from the light source to the Candle. Some light from the light source strikes the Candle. Some light from the light source is reflected from the top of the Candle. 36. Plaintiff designed and manufactured the Candle of Plaintiffs Lantern Products to

be opaque in the presence of light from the light source of Plaintiffs Lantern Products when the light source is spaced apart from the Candle as in Plaintiffs Lantern Products. 37. Light reflected from the top of the Candle does not illuminate the Candle from its

upper surface inwardly to produce a diffuse glow from within a region of the Candle. 38. The light from the light source of Plaintiffs Lantern Products which strikes the

Candle is insufficiently intense to enter and exit the Candle to produce a diffuse glow from within a region of the Candle. 6

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Claim 1 of the 961 Patent includes the element or elements:

a first light source located within the cap substantially hidden from view to an observer by the cap 40. Plaintiffs Lantern Products each have a single light source, namely a light

emitting diode. Substantially all of each of Plaintiffs light emitting diodes protrudes below the lower surface of each lanterns cap. Plaintiffs light emitting diode is not substantially hidden from view to an observer by Plaintiffs cap. 41. Plaintiffs accused Lantern Products styles 009-11-0938, 009-11-0939, and 009-

11-0040 do not include all of the elements of Claim 1 of the 961 Patent. 42. Plaintiff seeks declaratory judgment pursuant to Title 28, Section 2201, United

States Code that Plaintiffs Lantern Products do not infringe Defendants 961 Patent rights or any other rights of the Defendant, and that Plaintiffs Lantern Products are entirely lawful. 43. On information and belief, the 961 patent is invalid or unenforceable. People

have been making lanterns with illuminated fake candles for a long time. 44. Plaintiff seeks injunctive relief, namely, an injunction against Defendant

threatening Plaintiffs customers with patent infringement litigation due to Plaintiffs customers selling Plaintiffs Lantern Products. V. PRAYER FOR RELIEF NOW, THEREFORE, Plaintiff prays for the following relief: A. A declaratory judgment that Plaintiffs Lantern Products do not infringe

Defendants patent rights or any other rights of the Defendant, and that Plaintiffs Lantern Products are entirely lawful.

B. unenforceable. C.

A declaratory judgment that United States patent number 7,093,963 is invalid or

A permanent injunction against Defendant threatening Plaintiffs customers with

patent infringement litigation due to Plaintiffs customers selling Plaintiffs Lantern Products. D. E. An award of attorneys fees and costs. An award of such other and further relief as this Court may deem just. Respectfully Submitted, Jackson Walker L.L.P. By: /Mark H Miller/ Mark H. Miller Texas Bar #14099200 mmiller@jw.com Cline H. White Texas Bar #00785229 112 E. Pecan, Suite 2400. San Antonio, TX 78209 (210) 978-7700 (210) 978-7790 Fax ATTORNEYS FOR CREATIVE INDUSTRIES LLC

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