Simple Products v. Huang - Complaint

Case 2:19-cv-00317-DBP Document 2 Filed 05/09/19 Page 1 of 13
Mark Bettilyon (4798)

Peter M. de Jonge (7185)
Jed H. Hansen (10679)
THORPE NORTH & WESTERN LLP
175 S. Main St., Suite 900
Salt Lake City, UT 84111
Telephone: (801) 566-6633
Facsimile: (801) 566-0750
Attorneys for Simple Products Corp.
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DISTRICT
SIMPLE PRODUCTS CORPORATION, a

Utah corporation; Case No.
Plaintiff
v. COMPLAINT FOR DECLARATORY
JUDGEMENT
CHIA-LING HUANG, an individual;

Judge
Defendant.
Plaintiff Simple Products Corporation (“Simple Products”) brings this action against
Defendant Chia-Ling Huang and alleges as follows:
NATURE OF THE ACTION
1. This is a civil action seeking a declaratory judgment of non-infringement,
invalidity, and unenforceability of the patent-at-issue under 28 U.S.C. §§ 2201 and 2202.
PARTIES
2. Plaintiff Simple Products is a corporation organized and existing under the laws
of the state of Utah, with a principal place of business at 14725 Porter Rockwell Blvd. Ste. C,
Bluffdale, Utah 84020.
3. Ms. Huang has previously alleged that she is a citizen of Taiwan, the Republic of
China.
JURISDICTION AND VENUE
4. This action arises under the Patent Laws of the United States, Title 35 of the
United States Code, Sections 101 et seq., and the Federal Declaratory Judgment Act, 28 U.S.C.
§§ 2201 and 2202. An actual, substantial, and continuing justiciable controversy exists between
Simple Products and Ms. Huang regarding the non-infringement, invalidity, and unenforceability
of the patent-in-suit because, among other things: (1) Ms. Huang has accused two of Simple
Products’ customer/resellers of infringing the patent-in-suit by selling and/or offering to sell one
of Simple Products’ flashlights which Ms. Huang alleges directly infringes the patent-in-suit, (2)
Ms. Huang has filed a lawsuit against the two Simple Products customer/resellers in the United
States District Court for the Central District of California, Case No. 2:18-cv-10545 (“the
California action”), (3) Ms. Huang filed a lawsuit against Simple Products in the same case in
the Central District of California which was dismissed for lack of venue, (4) Ms. Huang’s
lawsuit against Simple Products’ customer/resellers was also dismissed for failure to state a
claim but with relief to amend, (5) Ms. Huang will likely amend her claims against Simple
Products’ customer/resellers in the coming weeks, and (6) Simple Products denies that it
infringes the patent-in-suit, either directly or indirectly. This Court has subject matter jurisdiction
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pursuant to 28 U.S.C. §§ 1331 and 1338. Further, this Court has subject matter jurisdiction as
Simple Products is obligated, and has agreed, to indemnify its customer/resellers in the lawsuit
pending in California. See Microsoft Corp. v. DataTern, Inc., 755 F.3d 899, 904 (Fed. Cir.
2014).
5. This Court has personal jurisdiction over Ms. Huang pursuant to Utah’s Long-
Arm Statute, Utah Code Ann. § 78B-3-205.
6. Specifically, Ms. Huang has directly or indirectly introduced the allegedly
patented design into the United States through multiple businesses, including, but not limited to,
O’Reilly Auto Parts and Best Buy, which sell flashlights utilizing the design allegedly protected
by the patent-at-issue throughout the United States, including Utah.
7. Upon information and belief, Ms. Huang has understood and been aware that both
O’Reilly Auto Parts and Best Buy transact business in the state of Utah and that her products
would be sold in Utah. Additionally, upon information and belief, Ms. Huang sells or has
authorized sales of multiple similar and/or identical headlamps on, at least, the Alibaba website
to Utah consumers. Ms. Huang also knowingly filed suit against Simple Products, a Utah
corporation, in a related California lawsuit. Furthermore, before Simple Products was dismissed
from the California lawsuit as detailed below, counsel for Ms. Huang repeatedly communicated
with counsel for Simple Products regarding this lawsuit through multiple different law firms.
Both Simple Products and counsel for Simple Products are located in Utah.
8. In particular, acting as agents for Ms. Huang, her attorneys, located in both
California and Virginia, voluntarily initiated and engaged in multiple phone calls and dozens of
emails with Simple Products’ counsel regarding and discussing Ms. Huang’s claims of
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infringement, the invalidity of Ms. Huang’s patent, the claims of the California lawsuit, Simple
Products’ alleged liability, and multiple offers of settlement. Many of these communications are
discussed further below. Ms. Huang’s agents knowingly engaged in these discussions
understanding that Simple Products is located in Utah and knowing that counsel for Simple
Products is also in Utah.
9. Venue is proper in this district pursuant to 28 U.S.C. § 1391 because Ms. Huang
is subject to personal jurisdiction in this district and because Ms. Huang is a resident of a foreign
nation.
GENERAL ALLEGATIONS
10. Simple Products is a corporation which specializes in the development, design,
and distribution of various products and product lines throughout the United States, including a
line of Lux-Pro flashlights.
11. The Simple Products/Lux-Pro team has been designing and engineering
flashlights since 1999, including work lights and headlamps.
12. The Lux-Pro family of flashlights is known for its high quality, bright LED lights,
and affordable cost.
13. The Lux-Pro flashlights are manufactured overseas, and Simple Products
coordinates the import of and sells the flashlights to customer-resellers. Certain flashlight
designs are created by Simple Products. Other designs are offered to Simple Products by
overseas manufacturers.
14. Ms. Huang purports to be the owner of U.S. Patent No. D812,793S (“the ’793
Patent”) entitled “Headlamp,” a copy of which is attached as Exhibit A.
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Prior Proceedings
15. In December of 2018, Ms. Huang initiated a patent infringement action alleging
that customer/resellers of Simple Products, Lowe’s Home Centers, LLC (“Lowe’s”) and Fry’s
Electronics, Inc. (“Fry’s”), infringe the ʼ793 Patent by selling a flashlight manufactured by
Simple Products, the Lux-Pro 235 Lumen Headlamp (“Lux Pro Headlamp”).
16. Prior to filing the above lawsuit, counsel for Ms. Huang sent a letter to Lowe’s on
or about November 30, 2018 alleging infringement of the ʼ793 Patent by selling or offering to
sell the Lux Pro Headlamp. See Exhibit B.
17. Lowe’s promptly informed Simple Products of both Ms. Huang’s letter alleging
infringement and requested Simple Products indemnify Lowe’s against the allegations pursuant
to a written contract between Lowe’s and Simple Products. See Exhibit C.
18. Simple Products promptly contacted Ms. Huang’s counsel to inform her that
Simple Products manufactures the product-at-issue, that Simple Products was the real Defendant-
in-interest in the dispute, and that all future communications regarding the dispute should be
directed to Simple Products’ counsel in Utah.
19. Counsel for Ms. Huang was largely unavailable to discuss Ms. Huang’s letter and
allegations and was aggressive and unreasonable in both conducting discussions and Ms.
Huang’s demands. For example, after initial discussions regarding the dispute, counsel for
Simple Products in Utah sent counsel for Ms. Huang additional emails and follow-up
communications. Instead of responding and engaging further with counsel for Simple Products,
counsel for Ms. Huang contacted Lowe’s, once again, alleging that counsel for Simple Products
was not responding to counsel for Ms. Huang’s requests and communications.
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20. On December 20, 2018, Ms. Huang filed a Complaint against Lowe’s alleging
patent infringement of the ‘793 Patent.
21. Upon information and belief, Ms. Huang and counsel for Ms. Huang sought to
pressure Lowe’s to remove products from its stores by sending the letter and filing the dispute
during the Holiday season and by their actions as stated in the preceding paragraphs.
22. Despite knowing that Simple Products was the manufacturer of the Lux Pro
Headlamp at-issue and having multiple communications with counsel for Simple Products, Ms.
Huang initially filed her patent infringement action only against Lowe’s. See Complaint, Case
No. 2:18-cv-10545, Dkt. No. 1 attached as Exhibit D.
23. After Lowe’s notified Simple Products it was served with process, Simple
Products promptly contacted counsel (a second, different set of counsel) for Ms. Huang to inform
them that Simple Products manufactures the product-at-issue and that Simple Products was the
real Defendant-in-interest in the lawsuit.
24. Ms. Huang then amended her Complaint and added Simple Products as a named
Defendant. See First Amended Complaint, Case No. 2:18-cv-10545, Dkt. No. 9 attached as
Exhibit E. Simple Products’ Utah counsel agreed to accept service of process of the First
Amended Complaint.
25. Subsequently, after receiving consent from Simple Products’ Utah counsel, Ms.
Huang amended her Complaint again and added another Simple Products customer/reseller,
Fry’s, as a Defendant. See Second Amended Complaint, Case No. 2:18-cv-10545, Dkt. No. 18
attached as Exhibit F.
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26. During the course of discussions between counsel, Ms. Huang’s counsel agreed to
stay the action against Fry’s and Lowe’s pursuant to the Customer Suit Exception. See In re
Nintendo Am., 756 F.3d 1363, 1365 (Fed. Cir. 2014). After Ms. Huang filed her Second
Amended Complaint, Simple Products’ Utah counsel, met and conferred with counsel for Ms.
Huang. Counsel for Simple Products informed counsel for Ms. Huang that Simple Products
planned to request transfer of the California action against Simple Products to the District of
Utah since venue was not proper in the Central District of California pursuant to 28 U.S.C. §
1400(b).
27. Upon realizing that venue against Simple Products in California was improper,
counsel for Ms. Huang rescinded their agreement to stay the action and instead noted that it
would dismiss Simple Products from the action. Ms. Huang’s counsel later rescinded that
agreement and instructed Simple Products’ counsel to file its Motion to Dismiss or Transfer
without providing any basis for a belief that venue was proper against Simple Products in the
Central District of California.
28. Throughout the course of Ms. Huang’s various court filings, counsel for Ms.
Huang entered into settlement negotiations with Simple Products’ counsel located in Utah. Ms.
Huang’s counsel met and conferred with Simple Products’ Utah counsel and exchanged
numerous emails with respect to the Ms. Huang’s claims for infringement. Those settlement
negotiations have been unsuccessful.
29. As part of those emails, Simple Products’ Utah counsel sent several Chinese
patents (“Chinese Patents”) to Ms. Huang’s counsel which created ambiguity with respect to Ms.
Huang’s claim of inventorship. Specifically, several Chinese patents for a product very similar
7
to that shown in the ‘793 Patent were granted to a party different than Ms. Huang. Ms. Huang’s
counsel thereafter sent a declaration to Simple Products’ Utah counsel from a “Feng Min” in
China stating that Ms. Huang authorized him to file the Chinese Patents and that he mistakenly
filed the patents listing himself as the inventor.
30. On March 26, 2019, Simple Products filed a Motion to Dismiss or Transfer the
California Action to the District of Utah pursuant to Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. §
1406. See Exhibit G. On the same day, Simple Products’ customer/resellers, Lowe’s and Fry’s,
filed a motion to stay and sever the claims against the customer/resellers pending disposition of
the primary claims against Simple Products or, alternatively, a motion to dismiss for failure to
state a claim pursuant to Fed. R. Civ. P. 12(b)(6). See Exhibit H.
31. During the pendency of Simple Product’s Motion to Dismiss, Ms. Huang’s
counsel contacted Simple Products’ Utah counsel to schedule a mediation between the parties.
Specifically, Ms. Huang’s counsel proposed a mediation on May 3rd, May 13th, or May 14th 2019
where Ms. Huang would be in attendance. After further settlement negotiations between the
parties, it was determined that a mediation on those dates was premature.
32. On May 1, 2019, the Central District of California Court granted Simple
Products’ motion to dismiss for lack of proper venue. See Exhibit I. On the same day, the Court
granted Lowe’s and Fry’s motion to dismiss for failure to state a claim. See Exhibit J. The
Court further granted Ms. Huang leave to amend her claims against the customer/reseller
defendants. Id.
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California Action Allegations
33. In her Second Amended Complaint in the California action, Ms. Huang asserts
that Simple Products imports and distributes the Lux Pro Headlamp throughout the United
States. Ms. Huang alleges that the Lux Pro Headlamp directly infringes the design protected in
the ʼ793 Patent.
34. Ms. Huang further alleges that both Lowe’s and Fry’s directly infringe the ʼ793
Patent by selling or offering to sell the Lux Pro Headlamp.
Chinese Design Patent Filings
35. The ʼ793 Patent was filed on May 5, 2016. Ms. Huang is listed as the sole
inventor on this Patent.
36. Less than two weeks after the ʼ793 Patent was filed on May 5, 2016, two
applications for similar design patents for headlamps were filed in China. See Exhibits K and L.
The inventor for these design patents is listed as Feng Min.
37. Upon information and belief, the two Chinese patent applications and the ʼ793
Patent show similar designs.
Products Utilizing the Design in the ʼ793 Patent Are Being Sold in the United States
38. Upon information and belief, numerous products that appear similar to the
invention claimed in the ʼ793 Patent are offered for sale on the website Alibaba.com. See
Exhibit M.
39. Upon information and belief, these headlamp products utilizing the allegedly
design covered by the ʼ793 Patent on the Alibaba website may be purchased by Utah residents.
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40. Upon information and belief, these headlamp products utilizing the design
covered by the ʼ793 Patent constitute prior art and were available to purchase prior to May 5,
2016, the day Ms. Huang filed her application for the ʼ793 Patent.
Indemnification
41. Pursuant to individual written agreements between Simple Products and Lowe’s
and Fry’s, Simple Products has agreed to defend and indemnify Lowe’s and Fry’s against Ms.
Huang’s claims of infringement relating to the Lux Pro Headlamp.
42. Simple Products has a direct and substantial interest in defeating any claims
relating to the Lux Pro Headlamp and the alleged infringement of the ’793 Patent.
43. There is an actual, substantial, and continuing justiciable controversy between
Simple Products and Ms. Huang. Simple Products and Ms. Huang have adverse legal interests of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment regarding
non-infringement, invalidity, and unenforceability of the ’793 Patent.
FIRST CLAIM – DECLARATION OF NON-INFRINGEMENT
44. Simple Products restates and incorporates by reference each of the allegations set
forth in the paragraphs above.
45. Ms. Huang has alleged that the Lux Pro Headlamp infringes the ’793 Patent.
46. Simple Products has not and does not make, use, sell, offer for sale, or import any
product, including its Lux Pro Headlamp, that infringes, either directly or indirectly, or
contributes to any infringement of any valid claim of the ’793 Patent. Further, Simple Products
has not and does not induce any infringement of any valid claim of the ’793 Patent.
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47. An actual and justiciable controversy exists between Simple Products and Ms.
Huang as to Simple Products’ non-infringement of the ’793 Patent.
48. Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201, et seq.,
Simple Products seeks a declaration that it does not infringe any valid claim of the ’793 Patent.
SECOND CLAIM – DECLARATION OF INVALIDITY
50. Upon information and belief, the ’793 Patent is invalid for failure to comply with
the requirements of Title 35 of the United States Code, including, without limitation, one or more
of §§ 102, 103, and 112.
51. Upon information and belief, the ʼ793 Patent is invalid in light of the Chinese
Patents, for a similar design, filed by a different inventor than Ms. Huang. Based on the Chinese
Patents, upon information and belief, Ms. Huang is not the sole inventor or designer of the
allegedly patented invention.
52. Upon information and belief, the ʼ793 Patent is invalid in light of products with
the same or substantially similar design available on the Alibaba website. Upon information and
belief, these products were on sale prior to the date Ms. Huang filed her patent application, May
5, 2016.
Huang as to the validity of the ’793 Patent.
Simple Products seeks a declaration that the ’793 Patent is invalid.
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THIRD CLAIM – UNENFORCEABILITY
56. Upon information and belief, the ’793 Patent is unenforceable due to Ms. Huang
not being the true and/or sole inventor and/or designer of the product covered by the ʼ793 Patent.
57. Upon information and belief, the ʼ793 Patent is unenforceable in light of the
design patents filed in China by a different inventor than Ms. Huang.
58. Upon information and belief, the ʼ793 patent is unenforceable in light of the
products with the same or substantially similar design offered for sale prior to the patent
application filing date, May 5, 2016.
Huang as to the enforceability of the ’793 Patent.
Simple Products seeks a declaration that the ’793 Patent is unenforceable.
PRAYER FOR RELIEF
WHEREFORE, Simple Products respectfully requests judgment in its favor and against
Ms. Huang as follows:
A. A declaration that Simple Products has not and does not infringe, either directly,
indirectly, or contributorily, any valid claims of the patent-in-suit;
B. An injunction against Ms. Huang, and all persons acting on her behalf or in
concert with her, restraining them from further prosecuting or instituting any
action alleging that any Simple Products method, product, or technology, or
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others’ use thereof, including, but not limited to, Lowe’s and Fry’s, infringes the
patents- in-suit;
C. A declaration that the ʼ793 Patent is invalid;
D. A declaration that the ʼ793 Patent is unenforceable;
E. A declaration that this case is exceptional and that Simple Products is entitled to
an award of reasonable attorneys’ fees pursuant to 35 U.S.C. § 285; and
F. Any such other and further relief as the Court may deem just and fair.
JURY DEMAND
Simple Products requests a trial by jury on all issues and claims so triable.
Dated: May 9, 2019 THORPE NORTH & WESTERN LLP

/s/Jed H. Hansen
Jed H. Hansen
Mark Bettilyon
Peter de Jonge
Attorneys for Plaintiff Simple Products

Corp.
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Case 2:19-cv-00317-DBP Document 2-1 Filed 05/09/19 Page 1 of 2
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EXHIBIT A
|HAO WALI TATAMI MERITA UNA HABARI USOOD8127935
(12 ) Huang
United States Design Patent ( 10) Patent No.: US D812 ,793 S
(45) Date of Patent: * * Mar. 13 , 2018
(54 ) HEADLAMP D747,021 S * 1/ 2016 Hunnewell ................... D26 / 39
D752 ,257 S * 3/ 2016 Hine D26 / 39
(71) Applicant: Chia-Ling Huang, Taoyuan (TW ) D754 .378 S * 4/ 2016 Feustel ........... D26 / 39
D758,630 S * 6 / 2016 Li D26 / 39
(72) Inventor: Chia-Ling Huang, Taoyuan ( TW ) 2015 /0061874 Al * 3 /2015 Kim ................... A42B 3 /0446
340 /573 .1
2015/0192282 A1 * 7/2015 Ormsbee ........... F217 21 / 084
(* * ) Term : 15 Years 315 / 307
2015 /0345760 A1 * 12 /2015 Law .............. F217 21 /084
(21) Appl. No.: 29/563,529 362/ 105
(22 ) Filed : May 5 , 2016 * cited by examiner
(51) LOC ( 11) CI. .. ...... 26 -02 Primary Examiner — Lakiya Rogers
(52 ) U . S . CI. Assistant Examiner — Carissa C Fitts
USPC ............. ................ 126 / 39 (74 ) Attorney , Agent, or Firm — WPAT, PC
(58 ) Field of Classification Search
USPC ........ ...... D26 / 37, 38 , 44, 42, 43, 48, 51, 39 (57 ) CLAIM
CPC ......... F21L 2003/00 ; F21L 4 /00 ; F21L 4 / 005;
F21L 4 /02 ; F21L 4 /025 ; F21L 4 /027 ; The ornamental design for a headlamp, as shown and
F21L 4 /04 ; F21L 4 / 08 ; F21L 2005/00 ; described .
F21L 7 / 00 ; F21L 11 /00 ; F21L 13 /00 ;
F21L 13 /04 ; F21L 13 /08 ; F21L 14 / 02 ; DESCRIPTION
F21L 17 /00 ; F21L 19/00
See application file for complete search history . FIG . 1 is a perspective view of a headlamp showing my new
design thereof;
( 56 ) References Cited FIG . 2 is a front elevational view thereof;
FIG . 3 is a rear elevational view thereof;
U . S . PATENT DOCUMENTS FIG . 4 is a left side elevational view thereof;
D552.278 S * 10 /2007 Spartano D26 /39 FIG . 5 is a right side elevational view thereof;
D560 ,008 S * 1/2008 Poon D26 /39 FIG . 6 is a top plan view thereof;
D581, 567 S * 11/ 2008 Crawford .. D26 /38 FIG . 7 is a bottom plan view ;
D594, 582 S * 6 / 2009 Petzl .. ............. . D26 / 39 FIG . 8 is another perspective view thereof; and ,
D658 ,323 S * 4 / 2012 Freschl ............ ... D26 / 39 FIG . 9 is the perspective view thereof, shown in use ;
D672, 893 S * 12 / 2012 Inskeep ... D26 /39
D693 ,040 S * 11/2013 Svensson ..... D26 /39 The broken lines shown in FIG . 4 and FIG . 9 are for
D707, 867 S * 6 /2014 Kotsis D26 /39 environmental purposes. All other broken lines shown por
D726 ,943 S * 4 /2015 Petzl . . . . . . . . D26 /39 tions of the article not claimed . The broken lines form no
D736 ,977 S * 8 /2015 Petzl D26 / 39 part of the claimed design .
D736 , 980 S * 8 / 2015 Petzl . .. . ... . . . D26 /39 The stipple shading and the straight line shading show a
D742, 050 S * 10 / 2015 Inskeep ... D26 / 39
D742,051 S * 10 /2015 Abernethy ................ D26 / 39 contrast in appearance .
D743 ,596 S * 11/2015 Ormsbee ........ D26 / 39
D743,597 S * 11/2015 Abernethy ........... D26 /39 1 Claim , 9 Drawing Sheets
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EXHIBIT B
NORTHERN VIRGINIA OFFICE

JUSTIN I, KING
REGISTERED ATTORNEY BEFORE USPTO

ADMITTED IN MARYLAND STATE BAR
ADMITTED IN COURT OF APPEAL FOR F.
w A&
~- 9
INTELLECTUAL PROPERTY ATTORNEYS
8230 BOONE BLVD., SUITE 405
VIENNA, VA 22182
(703) 639-0151
FACSIMILE (703) 880-7487
CIRCUIT -------------
LAW OFFICES SOUTHERN CALIFORNIA OFFICE
TRADEMARK * PATENT * COPYRIGHT 1100 QUAIL STREET, SUITE 202

NEWPORT BEACH, CA 92660
(949) 387-2885
FACSIMILE (949) 250-3178
November 30, 2018
Lowe's via its Registered Agent

Corporation Service Company
251 Little Falls Dr.
Wilmington, DE 19808
RE: Cease and Decease Demand for Lowe's product Lux-Pro 235-Lumen LED
Headlamp
To whom it may concern:
This office represents the patent owner in regard the matter of patent infringement
of U.S. Patent No. D812,793 HEADLAMP.
It appears that Lowe's is selling and/or offering for sale at least one device that
falls within the scope of the claims in the U.S. Patent No. D812,793, including but not
limited, the Lux-Pro 235-Lumen LED Headlamp (https://www.lowes.com/pd/Lux-Pro-235-
Lumen-LED-Headlamp-Battery-Included/1000385025). A copy of the U.S. Patent No. D812,793
and the information on the product Lux-Pro 235-Lumen LED Headlamp sold by Lowe's
are attached along with this letter for your reference.
This letter requests your immediate action to terminate and withdraw any activity
from marketing, selling, or offering for sale the device Lux-Pro 235-Lumen LED
Headlamp in light of any potential willful infringement damage. Lowes' affirmative

response by December 10, 2018 is requested.
Sincerely,
Justin I. King Esq.
~
i
Hiu~uamuiuNiiiaiimh~ieuiieumuei
12) United States Design Patent

( (io) Patent No.: US D812,793 s
Huang (45) Date of Patent: ** Mar. 13, 2018
(54) HEAllLAMY ll747,021 S* 1/2016 Hnnnewell .................... ll26/39

D752,257 S* 3/2016 Hine .............................. D26/39
(71) Applicant: Chia-Ling Huang, Taoyuan (TW) D754,378 S* 4/2016 Feustel ...............D26/39
.... .......
D758,630 S* 6/2016 Li .................................. D26/39
2015/0061874 A1 * 3/2015 Kirn ..................... A42B 3/0446
(72) Inventor: Chia-Ling IIuang, Taoyuan (TW)
340/573.1
201510192282 Al * 7/2015 Ormsbcc ............... F21V 21/084
(" ) Term: 15 Years 315/307
2015/0345760 Al * 12/2015 Law ...................... F21V 21/084
(21) Appl. No.: 29/563,529 362/105
(22) Filed: May 5, 2016 " cited by examiner
(51) LOC (11) Cl . ............................................... 26-02 Prirnary, Exarniner — Lakiya Rogers

(52) U.S. Cl. .4ssistant Ermniner—Carissa C Filts
iJSPC ........................................................... D26/39 (74) Attornzey, Agent, or Firnr — WPAT, PC
(58) Fieid o1' Classification Search
USPC ............... D26/37, 38, 44, 42, 43, 48, 51, 39 (57) CLAIM
CPC ......... F21L 2003/00; F21L 4/00; F21L 4/005;
F21i, 4/02; F21i, 4/025; F211, 4/027; Tlie omamental design for a headlamp, as shown and
F21L 4/04; F21L 4/08; F21L 2005/00; described.
F21L 7/00; F21L 11/00; F21L 13/00;
F21L 13/04; F21L 13/08; F21L 14!02; DESCRIPTION
F21L 17/00; F21L 19/00
See application file for complete search liistory. FIG. 1 is a perspective view of a headlamp showing my new
design thereof;
(56) Refereiices Cited FIG. 2 is a front elevational view thereof;
FIG. 3 is a rear elevational view thereof;
U.S. PATENT DOCUMENTS FIG. 4 is a lefl side elevational view thereof;
D552,278 S* 10/2007 Spartano ........................ D26/39 F1Ci. 5 is a right side elevational view thereof;
D560,008 S* 1/2008 Poon .............................. D26!39 FIG. 6 is a top plan view thereof;
D581,567 S* 11/2008 Crawford ....................... D26/38 FIG. 7 is a bottom plan view;
D594,582 S* 6/2009 Petzl .............................. D26!39 FIG. 8 is another perspective view thereof; and,
D658,323 S* 4/2012 Freschl .......................... D26/39 FIG. 9 is the perspective view thereof, shown in use;
D672,893 S* 12/2012 Inskeep .......................... D26/39
D693,040 S* 11/2013 Svensson ....................... D26(39 Tlie broken lines shown in FIG. 4 and FIG. 9 are for
D707,867 S* 6/2014 Kotsis ............................ D26/39 enviromnental purposes. All otlier broken lines shown por-
D726,943 S* 4/2015 Petzl .............................. D26/39 tions of the article not claimed. The broken lines form no
D736,977 S* 8/2015 Petzl .............................. D26/39 part of the claimed design.
D736,980 S* 8/2015 Pctzl .............................. D26(39 '11ie stipple shading and the straight line sliading show a
D742,050 S* 10(2015 Inskccp .......................... D26/39
D742,051 S* 10%2015 Abcrnethy ..................... D26/39 contrast in appearance.
D743,596 S* 11/2015 Orinsbcc ........................ D26!39
D743,597 S* 11!2015 Abernethy ..................... D26/39 1 Claim, 9 Drawing Sheets
U.S. Patent Mar. 13, 2018 Sheet 1 of 9 US D812,793
FIG.1
U.S. Patent Mar. 13, 2018 Sheet 2 of 9 US D812,793 S
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FIG.2
U.S. Patent Mar. 13, 2018 Sheet 3 of 9 US D812,793 S
FIG.3
U.S. Patent Mar. 13, 2018 Sheet 4 of 9 US I)812,793 S
FICI.4
FIG.5
U.S. Patent Mar. 13, 2018 Sheet 6 of 9 US D8121 793
FIG.6
U.S. Patent Mar. 13, 2018 Sheet 7 of 9 US I9812,793
FIG.7
FIG-. 8
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FIG.9
11/30/2018 Shop Lux Pro 235-Lumen LED Headlamp (Battery Induded) at Lowes.com
UP''3'O 45% OEF SELECT'I"OOLS + FRi+-* PARCE.€.. SHIP'PlNG WITP# My`f.OWE`S. SI•iOF" Nt3494f >
Prices, promotions, sty!es, and avai!abi!ity may vary.

Our local stores do not honor on!ine pricing. Prices
pen until 9PM!
~ lexandria Lowe's ~
and avai!abi!ity of products and services are subject to
change without notice. Er-ors will be corrected where
discovered, and Lowe's reserves the right to revoke
any stated offer and to correct any errors, inaccuracies
or omissions inc!uding after an order has been
submitted.
Item # 933927 Model #

LP322
Lux-Pro 235-Lumen LED Headlamp $9.96
(Battery Included)
. Extremely bright Broadbeam LED headiamp
76 Ratings 99%
Community . 3 AAA a!ka!ine batteries inc!uded
Recommend
this Q&A
4.5 Average view Idow . O-ring battery compartment for water
product
resistance
0 ~111111 -n
FREE Store Shipping & ~
Pickup Delivery 0
A,
® 114 avai!ab!e 4D Available!
today at
A!exandria
Lowe's!
Aisle 99, Bay 3

While Supplies Last
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I Uffer uo~E tio ~redit ~,pproval:anc, caniiot"ce.combiredith; ~it~.er..Cr~~i~to~f~is:
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EXHIBIT E
Case 2:18-cv-10545-SJO-JEM
Case 2:19-cv-00317-DBP
Document
Document
9 Filed
2-6 01/08/19
Filed 05/09/19
Page 1
Page
of 6 2 Page
of 7 ID #:69
1 Hubert H. Kuo (CA Bar No. 204036)

David Yu (CA Bar No. 276471)
2 ARDENT LAW GROUP, PC
4340 Von Karman Ave., Suite 290
3 Telephone: (949) 299-0188
Facsimile: (949) 299-0127
4
Attorneys for Plaintiff CHIA-LING HUANG
5
7 UNITED STATES DISTRICT COURT

8 CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION
9
10 CHIA-LING HUANG, an individual, Case No. 2:18-cv-10545-SJO-JEM

11 Plaintiff, Assigned to Hon. S. James Otero
Courtroom: 10C
12 vs.
PLAINTIFF’S FIRST AMENDED
13 LOWE‟S HOME CENTERS, LLC., COMPLAINT FOR PATENT
a North Carolina limited liability INFRINGEMENT
14
company; SIMPLE PRODUCTS JURY TRIAL DEMANDED
15 CORPORATION, a Utah
16 corporation; and DOES 1-20,
inclusive,
17
18 Defendants.
19 COME NOW, Plaintiff CHIA-LING HUANG (“Plaintiff”), for causes of
20 action against named Defendant LOWE‟S HOME CENTERS, LLC, and SIMPLE
21 PRODUCTS CORPORATION (collectively “Defendants”), complains and alleges
22 as follows:
23 THE PARTIES
24 1. Plaintiff CHIA-LING HUANG (“HUANG” and/or “Plaintiff”) is a
25 citizen of Taiwan, the Republic of China.
26 2. Upon information and belief, Defendant LOWE‟S HOME CENTER,
27 LLC (“LOWE‟S”) is a North Carolina limited liability company with its principal
28 place of business at 1605 Curtis Bridge Rd., Wilkesboro, North Carolina 28697.
ARDENT LAW GROUP, PC
Newport Beach, California 92660
Telephone: (949) 299-0188 1
FIRST AMENDED COMPLAINT
Facsimile: (949) 299-0127
Document
Document
9 Filed
2-6 01/08/19
Filed 05/09/19
Page 2
Page
of 6 3 Page
of 7 ID #:70
1 3. Upon information and belief Defendant SIMPLE PRODUCTS

2 CORPORATION (“SIMPLE”) is a Utah corporation with its corporate headquarters
3 located at 138 E. 12300 South, Suite C-165, Draper, Utah 84020
4 4. Plaintiff is ignorant of the true names and capacities of defendants sued
5 here as DOES 1 through 20, inclusive, and therefore sues these defendants by such
6 fictitious names. Plaintiff will amend this Complaint to allege their true names and
7 capacities when ascertained. Plaintiff is informed and believes, and thereon alleges,
8 that DOES 1 through 20, inclusive, have, during the term of the U.S. registered
9 patent D812,793S (“ „793 Patent”) and without Plaintiff‟s authorization, imported
10 into, used, offered to sell or sold product(s) covered by the „793 Patent in the
11 United States.
12 5. Plaintiff is informed and believes, and thereon alleges, that at all times
13 herein mentioned, each of the defendants was the agent, servant and/or employee of
14 each of the remaining defendants, and that in doing the acts alleged in the
15 Complaint, each of the defendants was acting in the capacity of agent, servant
16 and/or employee, and with the consent and ratification of the remaining defendants.
17 VENUE AND JURISDICTION
18 6. This Court has subject matter jurisdiction over the action under 28
19 U.S.C. §§ 1331 and 1338(a) as it arises under Acts of Congress related to patents.
20 7. The Court has general and/or specific personal jurisdiction over the
21 Defendants by virtue of, among other things, Defendants‟ importation into, offers to
22 sell and/or sales of their infringing products in this District. California‟s long arm
23 statute - California Code of Civil Procedure section 410.10 - permits the exercise of
24 personal jurisdiction on any basis not inconsistent with the California Constitution
25 or the U.S. Constitution.
26 8. Venue is proper in the Central District of California pursuant to 28
27 U.S.C. §§ 1391(b) and 1400.
28 //
Telephone: (949) 299-0188 2
Facsimile: (949) 299-0127
Document
Document
9 Filed
2-6 01/08/19
Filed 05/09/19
Page 3
Page
of 6 4 Page
of 7 ID #:71
1 FACTUAL ALLEGATIONS
2 9. Plaintiff hereby incorporates by reference all prior allegations as
3 though fully set forth herein.
4 10. Plaintiff is the lawful owner of all rights, title and interest in U.S.
5 Patent No. D812,793S (“ „793 Patent”), entitled “Headlamp”. A copy of the „793
6 Patent is attached hereto as Exhibit A.
7 11. Plaintiff is informed and believes, and thereon alleges, that Defendant
8 SIMPLE imports and distributes the Lux-Pro 235 Lumen Headlamp (“Lux
9 Headlamp”) throughout the United States, including retailers in this District.
10 12. Plaintiff is informed and believes, and thereon alleges, that SIMPLE
11 also sells the Lux Headlamp directly to customers with its online store through
12 Amazon.com. SIMPLE is the owner of the registered mark for LUX PRO,
13 trademark registration number 3814092. A copy of a SIMPLE‟S offering for sale of
14 the Lux Headlamp as marketed and sold through the website at www.amazon.com
15 is attached hereto as Exhibit B.
17 also sells the Lux Headlamp and related infringing products to other major retail
18 stores and distributors throughout the United States, including, but not limited to
19 California.
20 14. LOWE‟S sells and offers to sell in this District and elsewhere in the
21 United States the Lux Headlamp. A copy of a LOWE‟S offering for sale of the Lux
22 Headlamp as marketed and sold through its website at www.lowes.com is attached
23 hereto as Exhibit C.
24 15. On or around November 20, 2018, Plaintiff, through its attorney,
25 mailed to LOWE‟S a Cease and Decease Demand letter informing LOWE‟S of the
26 „793 Patent, that LOWE‟S is infringing upon Plaintiff‟s patent rights, and
27 demanded that it stop selling the Lux Headlamp or other related infringing products
28 (the “Demand Letter”). LOWE‟s was asked to respond by December 10, 2018.
Telephone: (949) 299-0188 3
Facsimile: (949) 299-0127
Document
Document
9 Filed
2-6 01/08/19
Filed 05/09/19
Page 4
Page
of 6 5 Page
of 7 ID #:72
1 16. To this day, although LOWE‟S had acknowledged receipt of the

2 Demand Letter, Plaintiff is informed and believes and thereon alleges that LOWE‟S
3 continues to sell the Lux Headlamp and related infringing products within its stores
4 and online.
5 FIRST CAUSE OF ACTION
6 (Patent Infringement Against All Defendants)
7 17. Plaintiff re-alleges and incorporates herein by reference the above
8 paragraphs of this Complaint as if set forth here in full.
9 18. By making, using, offering to sell, selling and/or importing into the
10 United States a version of the Lux Headlamp product that comes within the scope
11 of the claim of the patent without Plaintiff‟s authority is in violation of Plaintiff‟s
12 rights.
13 19. Thus, SIMPLE and LOWE‟S (collectively, “DEFENDANTS”) have
14 infringed and continue to infringe the „793 Patent in violation of 35 U.S.C. § 271.
15 20. Plaintiff is informed and believes, and thereon alleges, that
16 DEFENDANTS‟ infringement of the „793 Patent is willful, entitling Plaintiff to
17 increased damages pursuant to 35 U.S.C. § 284.
18 21. In addition, this case is exceptional, entitling Plaintiff to attorneys‟ fees
19 and costs pursuant to 35 U.S.C. § 285.
20 22. As a direct and proximate result of DEFENDANTS‟ conduct, Plaintiff
21 has suffered, and will continue to suffer, irreparable harm, for which it has no
22 adequate remedy at law.
23 23. Unless, enjoined by the Court, DEFEDNANTS will continue to
24 infringe the „793 Patent.
25 24. Unless this Court preliminarily and permanently enjoins
26 DEFENDANTS‟ infringing products, Plaintiff will continue to be irreparably
27 harmed by DEFENDANTS‟ infringement of the „793 Patent.
28
Telephone: (949) 299-0188 4
Facsimile: (949) 299-0127
Document
Document
9 Filed
2-6 01/08/19
Filed 05/09/19
Page 5
Page
of 6 6 Page
of 7 ID #:73
1 25. Plaintiff is entitled to a complete accounting of all revenue and profits

2 derived by DEFEDANTS from the unlawful conduct alleged herein.
3 PRAYER FOR RELIEF
4 WHEREFORE, Plaintiffs prays as follows:
5 a. For judgment preliminarily and permanently restraining and enjoining
6 DEFENDANTS (and its officers, directors, employees, agents, servants, successors,
7 assigns and any and all persons in privy or in concert with them, directly or
8 indirectly) from infringing any of the claims of the „793 Patent in any manner;
9 b. For judgment that one or more of the claims of the „793 Patent have
10 been infringed by DDEFENDANTS;
11 c. For damages adequate to compensate Plaintiff for each
12 DEFENDANTS‟ infringement, but in no event less than a reasonable royalty,
13 together with interest thereon;
14 d. For a threefold increase in damages as a result of willful infringement
15 by DEFENDANTS;
16 e. For an assessment and award of interest, cost, and attorneys‟ fees
17 against each of the DEFENDANTS; and
18 f. For such other and further relief as the Court deems just and proper.
19 JURY TRIAL DEMAND
20 Plaintiff demands a trial by jury on all claims and issues so triable.
21
22 Respectfully submitted,
24 Date: January 08, 2019 /s/ Hubert H. Kuo
25 Hubert H. Kuo
David Yu
26 Attorneys for Plaintiff CHIA-LING
HUANG
27
28
Telephone: (949) 299-0188 5
Facsimile: (949) 299-0127
Document
Document
9 Filed
2-6 01/08/19
Filed 05/09/19
Page 6
Page
of 6 7 Page
of 7 ID #:74
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4340 Von Karman Ave., Suite 290 1
Telephone: (949) 299-0188
Facsimile: (949) 299-0127
EXHIBIT F
Document
Document
18 Filed
2-7 02/19/19
Filed 05/09/19
Page 1
Page
of 7 2 Page
of 8 ID #:112
1 Hubert H. Kuo (CA Bar No. 204036)

David Yu (CA Bar No. 276471)
3 Newport Beach, CA 92660
Telephone: (949) 299-0188
4 Facsimile: (949) 299-0127
5 Attorneys for Plaintiff CHIA-LING HUANG
6
7 UNITED STATES DISTRICT COURT

8 CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION
9
10 CHIA-LING HUANG, an individual, Case No. 2:18-cv-10545-SJO-JEM

11 Plaintiff, Assigned to Hon. S. James Otero
Courtroom: 10C
12 vs.
PLAINTIFF’S SECOND
13 LOWE‟S HOME CENTERS, LLC., AMENDED COMPLAINT FOR
a North Carolina limited liability PATENT INFRINGEMENT
14
company; SIMPLE PRODUCTS JURY TRIAL DEMANDED
15 CORPORATION, a Utah
16 corporation; FRY‟S
ELECTRONICS, INC., a California
17 corporation and DOES 1-20,
18 inclusive,
19
Defendants.
20
21 COME NOW, Plaintiff CHIA-LING HUANG (“Plaintiff”), for causes of

22 action against named Defendant LOWE‟S HOME CENTERS, LLC, SIMPLE
23 PRODUCTS CORPORATION, and FRY‟S ELETRONICS, INC. (collectively
24 “Defendants”), complains and alleges as follows:
25 THE PARTIES
26 1. Plaintiff CHIA-LING HUANG (“HUANG” and/or “Plaintiff”) is a
27 citizen of Taiwan, the Republic of China.
28
Telephone: (949) 299-0188 1
SECOND AMENDED COMPLAINT
Facsimile: (949) 299-0127
Document
Document
18 Filed
2-7 02/19/19
Filed 05/09/19
Page 2
Page
of 7 3 Page
of 8 ID #:113
1 2. Upon information and belief, Defendant LOWE‟S HOME CENTER,

2 LLC (“LOWE‟S”) is a North Carolina limited liability company with its principal
3 place of business at 1605 Curtis Bridge Rd., Wilkesboro, North Carolina 28697.
4 3. Upon information and belief, Defendant SIMPLE PRODUCTS
5 CORPORATION (“SIMPLE”) is a Utah corporation with its corporate headquarters
6 located at 138 E. 12300 South, Suite C-165, Draper, Utah 84020.
7 4. Upon information and belief, Defendant FRY‟S ELECTRONICS, INC.
8 (“FRY‟S”) is a California corporation with its corporate headquarters located at 600
9 E. Brokaw Rd., San Jose, California 95112.
10 5. Plaintiff is ignorant of the true names and capacities of defendants sued
11 here as DOES 1 through 20, inclusive, and therefore sues these defendants by such
12 fictitious names. Plaintiff will amend this Complaint to allege their true names and
13 capacities when ascertained. Plaintiff is informed and believes, and thereon alleges,
14 that DOES 1 through 20, inclusive, have, during the term of the U.S. registered
15 patent D812,793S (“ „793 Patent”) and without Plaintiff‟s authorization, imported
16 into, used, offered to sell or sold product(s) covered by the „793 Patent in the
17 United States.
18 6. Plaintiff is informed and believes, and thereon alleges, that at all times
19 herein mentioned, each of the defendants was the agent, servant and/or employee of
20 each of the remaining defendants, and that in doing the acts alleged in the
21 Complaint, each of the defendants was acting in the capacity of agent, servant
22 and/or employee, and with the consent and ratification of the remaining defendants.
23 VENUE AND JURISDICTION
24 7. This Court has subject matter jurisdiction over the action under 28
25 U.S.C. §§ 1331 and 1338(a) as it arises under Acts of Congress related to patents.
26 8. The Court has general and/or specific personal jurisdiction over the
27 Defendants by virtue of, among other things, Defendants‟ importation into, offers to
28 sell and/or sales of their infringing products in this District. California‟s long arm
Telephone: (949) 299-0188 2
Facsimile: (949) 299-0127
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1 statute - California Code of Civil Procedure section 410.10 - permits the exercise of
2 personal jurisdiction on any basis not inconsistent with the California Constitution
3 or the U.S. Constitution.
4 9. Venue is proper in the Central District of California pursuant to 28
5 U.S.C. §§ 1391(b) and 1400.
6 FACTUAL ALLEGATIONS
7 10. Plaintiff hereby incorporates by reference all prior allegations as
8 though fully set forth herein.
9 11. Plaintiff is the lawful owner of all rights, title and interest in U.S.
10 Patent No. D812,793S (“ „793 Patent”), entitled “Headlamp”. A copy of the „793
11 Patent is attached hereto as Exhibit A.
12 12. Plaintiff is informed and believes, and thereon alleges, that Defendant
13 SIMPLE imports and distributes the Lux-Pro 235 Lumen Headlamp (“Lux
14 Headlamp”) throughout the United States, including retailers in this District.
16 also sells the Lux Headlamp directly to customers with its online store through
17 Amazon.com. SIMPLE is the owner of the registered mark for LUX PRO,
18 trademark registration number 3814092. A copy of a SIMPLE‟S offering for sale of
19 the Lux Headlamp as marketed and sold through the website at www.amazon.com
20 is attached hereto as Exhibit B.
22 also sells the Lux Headlamp and related infringing products to other major retail
23 stores and distributors throughout the United States, including, but not limited to
24 California.
25 15. FRY‟S sells and offers to sell in this District and elsewhere in the
26 United States the Lux Headlamp. A copy of a FRY‟S offering for sale of the Lux
27 Headlamp as marketed and sold through its website at www.frys.com is attached
28 hereto as Exhibit C.
Telephone: (949) 299-0188 3
Facsimile: (949) 299-0127
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1 16. LOWE‟S sells and offers to sell in this District and elsewhere in the
2 United States the Lux Headlamp. A copy of a LOWE‟S offering for sale of the Lux
3 Headlamp as marketed and sold through its website at www.lowes.com is attached
4 hereto as Exhibit D.
5 17. On or around November 20, 2018, Plaintiff, through its attorney,
6 mailed to LOWE‟S a Cease and Decease Demand letter informing LOWE‟S of the
7 „793 Patent, that LOWE‟S is infringing upon Plaintiff‟s patent rights, and
8 demanded that it stop selling the Lux Headlamp or other related infringing products
9 (the “Demand Letter”). LOWE‟s was asked to respond by December 10, 2018.
10 18. To this day, although LOWE‟S had acknowledged receipt of the
11 Demand Letter, Plaintiff is informed and believes and thereon alleges that LOWE‟S
12 continues to sell the Lux Headlamp and related infringing products within its stores
13 and online.
14 FIRST CAUSE OF ACTION
15 (Patent Infringement Against All Defendants)
16 19. Plaintiff re-alleges and incorporates herein by reference the above
17 paragraphs of this Complaint as if set forth here in full.
18 20. By making, using, offering to sell, selling and/or importing into the
19 United States a version of the Lux Headlamp product that comes within the scope
20 of the claim of the patent without Plaintiff‟s authority is in violation of Plaintiff‟s
21 rights.
22 21. Thus, SIMPLE LOWE‟S, and FRY‟S (collectively, “DEFENDANTS”)
23 have infringed and continue to infringe the „793 Patent in violation of 35 U.S.C. §
24 271.
25 22. Plaintiff is informed and believes, and thereon alleges, that
26 DEFENDANTS‟ infringement of the „793 Patent is willful, entitling Plaintiff to
27 increased damages pursuant to 35 U.S.C. § 284.
28
Telephone: (949) 299-0188 4
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1 23. In addition, this case is exceptional, entitling Plaintiff to attorneys‟ fees

2 and costs pursuant to 35 U.S.C. § 285.
3 24. As a direct and proximate result of DEFENDANTS‟ conduct, Plaintiff
4 has suffered, and will continue to suffer, irreparable harm, for which it has no
5 adequate remedy at law.
6 25. Unless, enjoined by the Court, DEFEDNANTS will continue to
7 infringe the „793 Patent.
8 26. Unless this Court preliminarily and permanently enjoins
9 DEFENDANTS‟ infringing products, Plaintiff will continue to be irreparably
10 harmed by DEFENDANTS‟ infringement of the „793 Patent.
11 27. Plaintiff is entitled to a complete accounting of all revenue and profits
12 derived by DEFEDANTS from the unlawful conduct alleged herein.
13 PRAYER FOR RELIEF
14 WHEREFORE, Plaintiffs prays as follows:
15 a. For judgment preliminarily and permanently restraining and enjoining
16 DEFENDANTS (and its officers, directors, employees, agents, servants, successors,
17 assigns and any and all persons in privy or in concert with them, directly or
18 indirectly) from infringing any of the claims of the „793 Patent in any manner;
19 b. For judgment that one or more of the claims of the „793 Patent have
20 been infringed by DEFENDANTS;
21 c. For damages adequate to compensate Plaintiff for each
22 DEFENDANTS‟ infringement, but in no event less than a reasonable royalty,
23 together with interest thereon;
24 d. For a threefold increase in damages as a result of willful infringement
25 by DEFENDANTS;
26 e. For an assessment and award of interest, cost, and attorneys‟ fees
27 against each of the DEFENDANTS; and
28 f. For such other and further relief as the Court deems just and proper.
Telephone: (949) 299-0188 5
Facsimile: (949) 299-0127
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1 JURY TRIAL DEMAND

2 Plaintiff demands a trial by jury on all claims and issues so triable.
3
4 Respectfully submitted,
6 Date: February 19, 2019 /s/ Hubert H. Kuo
7 Hubert H. Kuo
David Yu
8 Attorneys for Plaintiff CHIA-LING
HUANG
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1 CERTIFICATE OF SERVICE
2 I hereby certify that on February 19, 2019, I electronically filed the foregoing
3 SECOND AMENDED COMPLAINT with the Clerk of the Court using the
4 CM/ECF system which will send notification of such filing via electronic mail to all
5 counsel of record.
6
/s/ Hubert H. Kuo
7
Hubert H. Kuo
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4340 Von Karman Ave., Suite 290 1
Telephone: (949) 299-0188
Facsimile: (949) 299-0127
EXHIBIT G
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24 ID #:163
1 VENABLE LLP
Daniel S. Silverman (SBN 137864)
2 Email: dsilverman@venable.com
2049 Century Park East, Suite 2300
3 Los Angeles, CA 90067
Telephone: (310) 229-9900
4 Facsimile: (310) 229-9901
5 THORPE NORTH & WESTERN, LLP
Mark M. Bettilyon (Admitted Pro Hac Vice)
6 Email: mark.bettilyon@tnw.com
Jed H. Hansen (Pro Hac Vice pending)
7 Email: hansen@tnw.com
175 South Main, Suite 900
8 Salt Lake City, Utah 84111
Telephone: (801) 566-6633
9
Attorneys for Defendant
10 Simple Products Corporation
11
12
UNITED STATES DISTRICT COURT
13
CENTRAL DISTRICT OF CALIFORNIA
14
WESTERN DIVISION
15
CHIA-LING HUANG, an individual, Case No.: 2:18-cv-10545-SJO-JEM
16
Plaintiff, DEFENDANT SIMPLE
17 PRODUCTS CORPORATION’S
v. NOTICE OF MOTION AND
18 MOTION TO DISMISS
LOWE’S HOME CENTERS, LLC., a PLAINTIFF’S SECOND
19 North Carolina limited liability company; AMENDED COMPLAINT FOR
SIMPLE PRODUCTS CORPORATION, a PATENT INFRINGEMENT
20 Utah corporation; FRY’S PURSUANT TO FED. R. CIV. P.
ELECTRONICS, INC., and DOES 1-20, 12(b)(3) OR, IN THE
21 inclusive, ALTERNATIVE, MOTION TO
TRANSFER TO THE DISTRICT
22 Defendants. OF UTAH PURSUANT TO 28
U.S.C. § 1406
23
JURY TRIAL DEMANDED
24
DATE: April 29, 2019
25 TIME: 10:00 a.m.
CTRM: Courtroom 10C
26 JUDGE: Hon. S. James Otero
27
28
46221276 SIMPLE PRODUCTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, TRANSFER

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1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE that on April 29, 2019, at 10:00 a.m., or as soon
3 thereafter as the matter may be heard before the Honorable S. James Otero, United
4 States Judge, in Courtroom 10C of the United States District Court for the Central
5 District of California, located at 350 West First Street, Los Angeles, California
6 90012, Defendant Simple Products Corporation (“Simple Products”) will and
7 hereby does move to dismiss the Second Amended Complaint in part for improper
8 venue pursuant to Fed. R. Civ. P. 12(b)(3) or, in the alternative, transfer this action
9 as to Simple Products to the District of Utah.
10 The motion is made following the conference of counsel pursuant to Local
11 Rule 7-3, which took place on March 11, 2019.
12 This motion is based upon this Notice of Motion, the concurrently-filed
13 Memorandum of Points and Authorities in support thereof, the declarations of
14 Brian Christensen and Jed Hansen in support thereof, all of the papers and
15 pleadings on file in this action, and upon such other further evidence as the Court
16 may consider at the hearing of the motion.
17
18 DATED: March 26, 2019 VENABLE LLP
19
By: /s/ Daniel S. Silverman
20 Daniel S. Silverman
21
22
23 By: /s/ Jed. H. Hansen
Jed H. Hansen
24 Mark Bettilyon
25
27
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1 TABLE OF CONTENTS
2 INTRODUCTION ...................................................................................................1
3 FACTUAL BACKGROUND..................................................................................2
4 PROCEDURAL BACKGROUND .........................................................................3
5 LEGAL STANDARD .............................................................................................3
6 I. Venue in Patent Infringement Lawsuits..............................................3
7 A. Definition of “Resides” ............................................................4
8 B. Acts of Infringement.................................................................4
9 C. Regular and Established Place of Business..............................4
10 II. Dismissal or Transfer Pursuant to Fed. R. Civ. P. 12(b)(3) and
28 U.S.C. § 1406(a) ............................................................................5
11
ARGUMENT...........................................................................................................7
12
I. Venue is Improper for Simple Products .............................................7
13
A. Simple Products Does Not Reside in California ......................7
14
B. Simple Products Has No Regular and Established Place
15 of Business in California ..........................................................8
16 II. The Court Should Transfer This Case to the District of Utah In
the Interests of Justice .........................................................................9
17
A. Plaintiff Could Have Brought Suit Against Simple
18 Products in Utah .......................................................................9
19 B. Transfer to the District of Utah is in the Interests of
Justice and is Reasonable Pursuant to the Other Transfer
20 Factors.....................................................................................10
21 1. Interests of Justice ....................................................... 10
22 2. Remaining § 1404(a) Transfer Factors ....................... 12
23 a. Plaintiff’s Choice of Forum .............................. 12
24 b. Convenience of the Parties................................ 13
25 c. Convenience of the Witnesses .......................... 13
26 d. Location of Books, Records, and Where
Relevant Agreements Were Negotiated/Ease
27 of Access to Sources of Proof........................... 14
28 e. Which Forum’s Law Applies/State Most
Familiar With Governing Law.......................... 15
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f. Respective Parties’ Contact With

1 Forum/Contacts Relating to the Plaintiff’s
Cause of Action in the Chosen Forum.............. 15
2
g. Administrative Issues/Differences in Cost of
3 Litigation........................................................... 15
4 CONCLUSION......................................................................................................16
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1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 Allstar Mktg. Grp. v. Your Store Online, LLC,
5 666 F. Supp. 2d 1109 (C.D. Cal. 2009).................................................... 6, 12, 13
6 Am. GNC Corp. v. GoPro, Inc.,
7 2018 U.S. Dist. LEXIS 192256 (S.D. Cal. Nov. 6, 2018) ................................... 4
8 Amazon.com, Inc. v. Straight Path IP Grp., Inc.,

2015 U.S. Dist. LEXIS 69281 (N.D. Cal. May 28, 2015) ................................. 13
9
10 Anza Tech., Inc. v. Mushkin, Inc.,
2017 U.S. Dist. LEXIS 210371 (E.D. Cal. Dec. 21, 2017).................................. 4
11
Arcona, Inc. v. Farmacy Beauty, Ltd. Liab. Co.,
12 2018 U.S. Dist. LEXIS 47704........................................................................ 6, 13
13
Billing v. CSA-Credit Sols. of Am., Inc.,
14 2010 U.S. Dist. LEXIS 63314 (S.D. Cal. June 22, 2010) .................................... 6
15 Cook v. Fox,
16 537 F.2d 370 (9th Cir. 1976)................................................................................ 6
17 In re Cray Inc.,
18 871 F.3d 1355 (Fed. Cir. 2017) ........................................................................ 4, 5
19 Delarosa v. State St. Corp.,

2017 U.S. Dist. LEXIS 217646 (C.D. Cal. June 21, 2017).............................. 5, 6
20
21 Doe 1 v. AOL LLC,
552 F.3d 1077 (9th Cir. 2009).............................................................................. 7
22
Florens Container v. Cho Yang Shipping,
23
245 F. Supp. 2d 1086 (N.D. Cal. 2002) ............................................................... 7
24
Fox Factory, Inc. v. SRAM, LLC,
25 2018 U.S. Dist. LEXIS 3281 (N.D. Cal. Jan. 8, 2018) ........................................ 5
26
Green Fitness Equip. Co., LLC v. Precor, Inc.,
27 2018 U.S. Dist. LEXIS 109479 (N.D. Cal. June 29, 2018) ................................. 5
28
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1 Hatch v. Reliance Ins. Co.,

758 F.2d 409 (9th Cir. 1985)................................................................................ 6
2
Jones v. GNC Franchising, Inc.,
3 211 F.3d 495 (9th Cir. 2000)................................................................................ 6
4
Lucas R. v. Azar,
5 2018 U.S. Dist. LEXIS 220971 (C.D. Cal. Dec. 27, 2018) ................................. 5
6 Nelson-Devlin v. Eli Lilly & Co.,
7 2015 U.S. Dist. LEXIS 123124 (E.D. Cal. Sept. 15, 2015) ................................. 5
8 In re Nintendo of Am., Inc.,
9 756 F.3d 1363 (Fed. Cir. June 25, 2014)............................................................ 12
10 Olivia Garden, Inc. v. Stance Beauty Labs, LLC,

2018 U.S. Dist. LEXIS 116573 (N.D. Cal. July 12, 2018) .................................. 4
11
12 Piedmont Label Co. v. Sun Garden Packing Co.,
598 F.2d 491 (9th Cir. 1979)................................................................................ 7
13
Plexxikon Inc. v. Novartis Pharms. Corp.,
14 2017 U.S. Dist. LEXIS 201984 (N.D. Cal. Dec. 7, 2017) ................................... 4
15
Reflection, LLC v. Spire Collective, LLC,
16 2018 U.S. Dist. LEXIS 2429 (S.D. Cal. Jan. 5, 2018);................................ 5, 7, 8
17
Richmond v. Lumisol Elec. Ltd.,
18 2014 U.S. Dist. LEXIS 59939 (D.N.J. Apr. 30, 2014) ...................................... 12
19 TC Heartland LLC v. Kraft Foods Grp. Brands, LLC,
20 137 S. Ct. 1514 (2017) ......................................................................................... 4
21 Tinnus Enters., LLC v. Telebrands, Corp.,

2018 U.S. Dist. LEXIS 78342 (E.D. Tex. May 1, 2018) ..................................... 5
22
23 Wok & Pan, Indus. v. Staples, Inc.,
2015 U.S. Dist. LEXIS 185193 (C.D. Cal. Aug. 25, 2015) ......................... 10, 11
24
WP Banquet v. Target Corp.,
25
2016 U.S. Dist. LEXIS 193462 (C.D. Cal. Dec. 15, 2016) ......................... 14, 15
26
Statutes
27
28 U.S.C. § 1400(b).......................................................................................... passim
28
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1 28 U.S.C. § 1404(a) .......................................................................................... passim
2 28 U.S.C. § 1406(a) ......................................................................................... 5, 9, 10

3 Other Authorities
4 Fed. R. Civ. P. 12(b)(3) ......................................................................................... 5, 7
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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 INTRODUCTION
3 In the instant lawsuit, Plaintiff Chia-Ling Huang, an individual citizen of
4 Taiwan (“Huang” or “Plaintiff”), claims that the Lux-Pro 235 Lumen Headlamp1
5 (“Lux Headlamp”) imported and sold by Defendant Simple Products Corporation
6 (“Simple Products”) infringes Design Patent No. D812,793S (the “ʼ793 Patent”).
7 Huang has also alleged two of Simple Products’ customers, Lowe’s Home Centers,
8 LLC (“Lowe’s”) and Fry’s Electronics, Inc. (“Fry’s”), infringe the ʼ793 Patent.
9 Lowe’s and Fry’s have not imported or manufactured the Lux Headlamp. They
10 have only sold the Lux Headlamp provided to them by Simple Products.
11 By this motion, Simple Products moves to dismiss the claims alleged against
12 it because it is not subject to venue in this District or, in the alternative, transfer
13 these claims to the District of Utah. In the companion motion filed
14 contemporaneously herewith, Lowe’s and Fry’s also move to stay the litigation
15 claims pending against them pursuant to the Customer Suit Exception Rule.
16 Venue is not proper in this Court against Simple Products because it is not a
17 resident of California nor does it have a regular and established place of business
18 in California as required by the patent venue statute 28 U.S.C. § 1400(b).
19 Prior to filing its original Complaint against Lowe’s, Plaintiff knew that
20 Simple Products was the manufacturer and importer of the Lux Headlamp. In the
21 interests of justice, Simple Products urges the Court to transfer this case to the one
22 district where Simple Products is a resident and has a regular and established place
23 of business, the District of Utah, pursuant to the Court’s authority under 28 U.S.C.
24 § 1406.
25
26
27
28
1
The correct name of the product is Lux-Pro LP322 Headlamp.
1
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1 FACTUAL BACKGROUND
2 Simple Products is a corporation which specializes in the development,
3 manufacturing, design, and distribution of various products and product lines
4 throughout the United States. See Declaration of Brian Christensen ¶ 2. Simple
5 Products has ongoing relations with several manufacturing facilities, both overseas
6 and in the United States. Id. ¶ 3. Simple Products sells these products to customer
7 resellers and directly to consumers through its Simple Products online store, under
8 various brands including the brand-at-issue here, Lux-Pro. Id. ¶¶ 4-5.
9 The Lux-Pro team has been engineering flashlights since 1999, including
10 work lights and headlamps. Id. ¶ 6. The Lux-Pro family of products is known for
11 its high quality, bright LED lights, and affordable cost. Id. ¶ 7. The Lux-Pro
12 products are manufactured by Simple Products’ third-party overseas contract
13 manufacturers and Simple Products coordinates the import of and sells the
14 flashlights to customer-resellers, such as Lowe’s and Fry’s. Id. ¶ 8. The Lux
15 Headlamp is one such product. Id. ¶ 9.
16 Simple Products is solely responsible for manufacturing and importing the
17 Lux-Pro brand of flashlights to the United States. Id. ¶ 10. Lowe’s and Fry’s do
18 not control or have any input in the development, manufacturing, or import of the
19 Lux-Pro flashlights and merely act as customer-resellers of the Lux-Pro family of
20 products. Id. Likewise, once Simple Products sells the Lux-Pro flashlights to
21 Lowe’s and Fry’s, Simple Products does not control or have any input in which
22 stores Lowe’s and Fry’s sell the Lux-Pro products. Id. ¶¶ 11-12. Pursuant to
23 contractual agreements, Simple Products is indemnifying Lowe’s and Fry’s in this
24 lawsuit. Id. ¶ 13.
25 Simple Products operates its business and its warehouse and shipping
26 operations in Utah. Id. ¶ 15. Nearly all of Simple Products employees are located
27 in Utah. Id. ¶ 17. Simple Products stores all of its documents related to the
28 development and sales of the Lux Headlamp in Utah. Id. ¶ 18. All of Simple
2
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1 Products contracts or other business decisions are maintained and/or were executed
2 in Utah. Id. ¶ 16. At no time relevant to this lawsuit, or before, has Simple
3 Products maintained a physical office, or other building, in or hired employees
4 which work from California. Id. ¶¶ 19-20.
5 PROCEDURAL BACKGROUND
6 On December 20, 2018, Plaintiff filed a Complaint for Patent Infringement
7 in the Central District of California. See Dkt. No. 1. Both prior to and after filing
8 the Complaint, counsel for Plaintiff was advised that Simple Products was the
9 party responsible for coordinating the manufacture and import of the Lux
10 Headlamp product-at-issue. See Hansen Dec. ¶ 2. However, despite knowing the
11 name of the manufacturer of the product-at-issue, Plaintiff initially named Lowe’s
12 and Does 1-20 as Defendants. Dkt. No. 1 ¶¶ 2-3.
13 After further discussions between counsel for Defendants and Plaintiff,
14 Plaintiff amended her Complaint and added Simple Products as a Defendant. Dkt.
15 No. 9; Hansen Dec. ¶¶ 3-4. Subsequently, Plaintiff amended her Complaint again
16 and added Fry’s as a Defendant. Dkt. No. 18. All three Complaints have alleged
17 direct infringement of Plaintiff’s ʼ793 Patent.
18 Pursuant to the local rules, Counsel for Plaintiff and Simple Products met
19 and conferred regarding Simple Products Motion to Dismiss or Transfer this
20 lawsuit to the District of Utah. Hansen Dec. ¶ 5. Apparently understanding that
21 venue was improper for Simple Products in the Central District of California,
22 Plaintiff informed Simple Products that it would dismiss Simple Products from this
23 lawsuit. Id. ¶ 6. However, for reasons outside Simple Products understanding,
24 Plaintiff ultimately decided not to dismiss Simple Products. Id. ¶ 7.
25 LEGAL STANDARD
26 I. Venue in Patent Infringement Lawsuits
27 “Any civil action for patent infringement may be brought in the judicial
28 district where the defendant resides, or where the defendant has committed acts of
3
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1 infringement and has a regular and established place of business.” 28 U.S.C.

2 1400(b). “When there are multiple parties and/or multiple claims in an action, the
3 plaintiff must establish that venue is proper as to each defendant and as to each
4 claim.” Anza Tech., Inc. v. Mushkin, Inc., 2017 U.S. Dist. LEXIS 210371, at *5
5 (E.D. Cal. Dec. 21, 2017) (see also Olivia Garden, Inc. v. Stance Beauty Labs,
6 LLC, 2018 U.S. Dist. LEXIS 116573, at *8 (N.D. Cal. July 12, 2018) (stating
7 similar)).
8 A. Definition of “Resides”
9 “For the purposes of Section 1400(b), a domestic corporation ‘resides’ only
10 in the state where it is incorporated.” Am. GNC Corp. v. GoPro, Inc., 2018 U.S.
11 Dist. LEXIS 192256, at *37 (S.D. Cal. Nov. 6, 2018) (citing TC Heartland LLC v.
12 Kraft Foods Grp. Brands, LLC, 137 S. Ct. 1514, 1517 (2017)).
13 B. Acts of Infringement
14 “At this early stage of the case, allegations that a defendant has committed
15 acts of infringement within a certain district are sufficient for the purposes of
16 section 1400(b).” Plexxikon Inc. v. Novartis Pharms. Corp., 2017 U.S. Dist.
17 LEXIS 201984, at *4 (N.D. Cal. Dec. 7, 2017).
18 C. Regular and Established Place of Business
19 “The regular and established place of business standard requires that . . .
20 (1) there must be a physical place in the district; (2) it must be a regular and
21 established place of business; and (3) it must be the place of the defendant.” Am.
22 GNC, 2018 U.S. Dist. LEXIS 192256 at *38 (quoting In re Cray Inc., 871 F.3d
23 1355, 1361 (Fed. Cir. 2017)). “The first requirement is satisfied where there is a
24 ‘physical, geographical location in the district from which the business of the
25 defendant is carried out.’ The second requirement is satisfied where a business
26 ‘operates in a steady, uniform, orderly, and methodical manner,’ rather than one
27 that is ‘sporadic.’ The third requirement is satisfied where the defendant has
28 ‘established or ratified the place of business.’” Plexxikon, 2017 U.S. Dist. LEXIS
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1 201984, at *4 (quoting In re Cray, 871 F.3d at 1362-1363).

2 Courts have previously held that examples of a “physical place” can include
3 a building or part of a building set apart for any purpose, quarters or any kind, or a
4 leased space. See Reflection, LLC v. Spire Collective, LLC, 2018 U.S. Dist. LEXIS
5 2429, at *4-5 (S.D. Cal. Jan. 5, 2018); Tinnus Enters., LLC v. Telebrands, Corp.,
6 2018 U.S. Dist. LEXIS 78342, at *5-6 (E.D. Tex. May 1, 2018). Further, “[a]
7 virtual space or electronic communication is not sufficient” to show a “physical
8 space” nor is the mere presence of sales representatives or independent dealers or
9 distributors. See Reflection, 2018 U.S. Dist. LEXIS 2429 at *5-6; Fox Factory,
10 Inc. v. SRAM, LLC, 2018 U.S. Dist. LEXIS 3281, at *11-12 (N.D. Cal. Jan. 8,
11 2018); Green Fitness Equip. Co., LLC v. Precor, Inc., 2018 U.S. Dist. LEXIS
12 109479, at *9-10 (N.D. Cal. June 29, 2018).
13 II. Dismissal or Transfer Pursuant to Fed. R. Civ. P. 12(b)(3) and
14 28 U.S.C. § 1406(a)
15 Fed. R. Civ. P. 12(b)(3) “allows a defendant to challenge a complaint for
16 improper venue.” Lucas R. v. Azar, 2018 U.S. Dist. LEXIS 220971, at *7 (C.D.
17 Cal. Dec. 27, 2018). Two venue statutes, Sections 1404(a) and 1406(a), are
18 potentially applicable to this motion. Courts have found that “Section 1404(a)
19 generally applies when the transferor court is a proper venue for the action, while
20 § 1406(a) is relied on when venue is not proper in the forum where a plaintiff
21 originally filed suit.” Delarosa v. State St. Corp., 2017 U.S. Dist. LEXIS 217646,
22 at *6-7 (C.D. Cal. June 21, 2017) (quoting Nelson-Devlin v. Eli Lilly & Co., 2015
23 U.S. Dist. LEXIS 123124, at *5 (E.D. Cal. Sept. 15, 2015)).
24 Since venue is not proper here, Section 1406(a) is the applicable statute.
25 Section 1406(a) notes that the “district court of a district in which is filed a case
26 laying venue in the wrong division or district shall dismiss, or if it be in the interest
27 of justice, transfer such case to any district or division in which it could have been
28 brought.” 28 U.S.C. § 1406(a).
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1 The decision whether to dismiss for improper venue or to transfer venue to a

2 court where venue is proper is a matter within the sound discretion of the district
3 court. See Cook v. Fox, 537 F.2d 370, 371 (9th Cir. 1976). “Unlike 1404(a)
4 transfers, no particular factors guide the decision ordering transfer under § 1406.
5 However, generally when deciding whether transfer would be in the interests of
6 justice, the relevant factors are the same as those applicable to Section 1404(a).”
7 Delarosa, 2017 U.S. Dist. LEXIS 217646, at *7 (quoting Billing v. CSA-Credit
8 Sols. of Am., Inc., 2010 U.S. Dist. LEXIS 63314, at *5 (S.D. Cal. June 22, 2010)).
9 In determining whether transfer is appropriate pursuant to 28 U.S.C. §
10 1404(a), a court first examines whether the lawsuit could have been brought in the
11 district to which transfer is sought. See Hatch v. Reliance Ins. Co., 758 F.2d 409,
12 414 (9th Cir. 1985). If the first requirement is met, then "[t]he district court must
13 adjudicate motions for transfer [of venue] according to an individualized, case-by-
14 case consideration of convenience and fairness." Arcona, Inc. v. Farmacy Beauty,
15 Ltd. Liab. Co., 2018 U.S. Dist. LEXIS 47704, at *21 (C.D. Cal. Mar. 22, 2018)
16 (quoting Allstar Mktg. Grp. v. Your Store Online, LLC, 666 F. Supp. 2d 1109, 1130
17 (C.D. Cal. 2009)).
18 “In deciding a motion to transfer venue, the Court weighs several factors,
19 including, (1) the plaintiff's choice of forum; (2) the convenience of the parties; (3)
20 the convenience of the witnesses; (4) the location of books and records; (5) which
21 forum's law applies; (6) the interests of justice; and (7) administrative
22 considerations.” Arcona, 2018 U.S. Dist. LEXIS 47704, at *21 (quoting Allstar
23 Mktg., 666 F. Supp. 2d at 1130). Case law also suggests other factors, which may
24 be considered, including “the differences in the costs of litigation in the two
25 forums” and “the ease of access to sources of proof.” Jones v. GNC Franchising,
26 Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). “Under Ninth Circuit law . . . courts
27 generally will not transfer an action unless the ‘convenience’ and ‘justice’ factors
28 strongly favor venue elsewhere.” Arcona, 2018 U.S. Dist. LEXIS 47704, at *22
6
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1 (quoting Florens Container v. Cho Yang Shipping, 245 F. Supp. 2d 1086, 1092
2 (N.D. Cal. 2002)).
3 Under Fed. R. Civ. P. 12(b)(3), "pleadings need not be accepted as true, and
4 facts outside the pleadings may be considered." Doe 1 v. AOL LLC, 552 F.3d 1077,
5 1081 (9th Cir. 2009). Once challenged, “the plaintiff bears the burden of
6 demonstrating the propriety of venue in the chosen judicial district.” Reflection,
7 2018 U.S. Dist. LEXIS 2429, at *3 (citing Piedmont Label Co. v. Sun Garden
8 Packing Co., 598 F.2d 491, 496 (9th Cir. 1979)).
9 ARGUMENT
10 I. Venue is Improper for Simple Products
11 As noted above, venue is proper for a Defendant in a patent infringement
12 lawsuit in a district (1) where a Defendant resides or (2) where a Defendant has
13 both committed acts of infringement and has a regular and established place of
14 business. Infra at 3-4. A domestic corporation resides where it is incorporated. Id.
15 at 4. To establish a Defendant has a regular and established place of business,
16 there must be a physical place in the District where a Defendant operates business
17 in a steady, uniform manner and which is established or ratified by the Defendant.
18 Id. Simple Products neither resides in California nor has a regular and established
19 place of business.
20 A. Simple Products Does Not Reside in California
21 As stated in Plaintiff’s Second Amended Complaint for Patent Infringement
22 (“SAC”), Simple Products is a Utah corporation with a principal place of business
23 and corporate headquarters in Utah. See Dkt. No. 18 ¶ 3; Christensen Dec. ¶
24 14. Thus, for purposes of the patent venue statute, 28 U.S.C. § 1400(b), Simple
25 Products “resides” in Utah. Accordingly, venue is not proper in the Central
26 District of California under the first prong of 28 U.S.C. 1400(b).
27
28
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1 B. Simple Products Has No Regular and Established Place of

2 Business in California
3 In its SAC, Plaintiff alleges that “Defendant SIMPLE imports and distributes
4 the Lux-Pro 235 Lumen Headlamp . . . throughout the United States, including
5 retailers in this District” and “that SIMPLE also sells the Lux Headlamp directly to
6 customers with its online store through Amazon.com”. Dkt. No. 18 ¶¶ 11-
7 12. Thus, Plaintiff has alleged acts of infringement that allegedly occurred in this
8 district and in Utah.
9 However, Plaintiff has failed to allege that Simple Products has a “regular
10 and established place of business” in California. As a consequence, Huang has
11 failed to allege facts needed to establish venue in California. Huang has not alleged
12 that Simple Products has a regular and established place of business in California
13 because Simple Products has no such place of business. In fact, Simple Products
14 does not own or lease any property in California nor does Simple Products have
15 any employees, sales representatives, or contractors which work out of California.
16 See Christensen Dec. ¶¶ 19-20.
17 Because Simple Products lacks the physical requirements of a “regular and
18 established place of business” it cannot operate a steady or uniform business in
19 California or ratify or otherwise establish a place of business in California. Simple
20 Products product sales on Amazon or any other electronic marketplace are also not
21 sufficient to confer venue under 28 U.S.C. § 1400(b). See Reflection, 2018 U.S.
22 Dist. LEXIS 2429, at *5-6. Further still, Simple Products has never directed
23 Lowe’s, Fry’s, or any other retailer, to sell its Lux-Pro products in California.
24 Christensen Dec. ¶ 12.
25 In summary, Plaintiffs have failed to allege sufficient facts to establish
26 venue over Simple Products in California. Such allegations have not been made
27 because the undisputed facts establish that Simple Products is not a proper party to
28 a patent infringement lawsuit under the patent venue statute. Because this Court
8
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1 has no jurisdiction over Simple Products, it must either dismiss or transfer the
2 claims against Simple Products. For the reasons next described, Simple Products
3 requests the Court transfer the case to the District of Utah where venue is proper as
4 to Simple Products.
5 II. The Court Should Transfer This Case to the District of Utah In the
6 Interests of Justice
7 As noted above, the venue statute applicable to this matter is 28 U.S.C. §
8 1406(a). Infra at 5-6. When a court determines that venue is improper under
9 Section 1406(a), the court may either dismiss the lawsuit against the defendant or,
10 if in the interests of justice, transfer the lawsuit against the defendant to a district in
11 which the lawsuit could have been brought. Id. at 6. There are no specific factors a
12 court must use when deciding whether transfer of an action against a defendant is
13 in the interests of justice under § 1406(a). Id. As such, courts have adopted the
14 same factors they use when deciding whether to transfer an action pursuant to 28
15 U.S.C. § 1404(a). Id at 6-7.
16 The applicable factors clearly favor transfer over dismissal. All of these
17 factors will be next addressed.
18 A. Plaintiff Could Have Brought Suit Against Simple Products
19 in Utah
20 As noted above, the first issue the court must evaluate under Section 1406(a)
21 is whether the lawsuit could have been brought in the district to which transfer is
22 sought. Id. at 6. Simple Products is a Utah corporation with a principal place of
23 business and corporate headquarters located in Utah. See Dkt. No. 18 ¶ 3;
24 Christensen Dec. ¶ 14. Thus, for purposes of the patent venue statute, 28 U.S.C. §
25 1400(b), Simple Products “resides” in Utah. Accordingly, venue is proper in Utah,
26 as to Simple Products, pursuant to the first prong of 28 U.S.C. § 1400(b).
27 Additionally, in contrast to its connections to California, Simple Products
28 admits that it has a building in Utah, its corporate headquarters, from which it
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1 conducts the vast majority of its business and sales. See Christensen Dec. ¶¶ 14-
2 16. Simple Products also maintains a warehouse and shipping center in Utah. Id. ¶
3 15. Furthermore, nearly all of its employees, including those that will have
4 information relevant to this lawsuit, are located in Utah. Id. ¶ 17. Simple Products
5 conducts all of its business, enters into contracts, coordinates import from its
6 overseas suppliers, and sells its products through its office in Utah. Id. ¶ 16. Thus,
7 Simple Products clearly has a “physical place” in Utah from which it carries out
8 business, which Simple Products operates in a steady and uniform manner, and
9 which it has established and ratified as its principal place of business. For these
10 reasons, the second prong of the patent venue statute is also met. See 28 U.S.C. §
11 1400(b).
12 Accordingly, Utah is a district in which Plaintiff could have brought suit
13 under both prongs of 28 U.S.C. § 1400(b).
14 B. Transfer to the District of Utah is in the Interests of Justice
15 and is Reasonable Pursuant to the Other Transfer Factors
16 As noted above, courts considering transfer under 1404(a) or 1406(a)
17 consider a variety of factors in determining whether the case should be dismissed
18 or transferred. Infra at 6-7. These factors are discussed next. Of these factors, the
19 interest of justice is the most important factor in this case and is discussed first.
20 1. Interests of Justice
21 The interests of justice are served by having lawsuits resolved in a venue
22 proper for the resolution of the dispute between the actual parties engaged in such
23 dispute. In the instant case, Simple Products is the primary Defendant-in-interest as
24 it is the party who has directed the manufacture of the product-at-issue and has
25 imported that product into the United States. Because Simple Products is a Utah
26 corporation with its headquarters in Utah, the District of Utah is the only venue
27 location where claims may be brought against Simple Products pursuant to the
28
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1 patent venue statute.2 In contrast, Huang, as a resident of Taiwan, has no strong ties
2 to a particular venue and certainly no other venue where she could bring the instant
3 cause of action against Simple Products. As a consequence, Utah is the proper
4 location for this lawsuit and the interests of justice are served by transferring this
5 dispute in Utah.
6 In contrast, if the Court dismisses this claim, but allows claims to continue
7 against Lowe’s and Fry’s, Simple Products will be deprived of the opportunity of
8 being the natural Defendant and instead would have to litigate this matter via its
9 proxies. Alternatively, Simple Products could file a Declaratory Judgment action
10 for invalidity and non-infringement in the District of Utah. However, Huang has
11 suggested to Simple Products that, in response, she will argue that the court in
12 Utah does not have personal jurisdiction over her. This will only serve to further
13 delay this lawsuit.
14 Such litigation will also pervert the purposes of the patent venue statute,
15 which clearly establish that patent lawsuits are to be litigated in only certain
16 venues. In fact, prior cases discussing the customer suit exception have stayed
17 cases against customer-reseller defendants for similar reasons. “The patent
18 infringement suit against a down-stream customer in a district where the
19 manufacturer is not subject to personal jurisdiction [or sensibly, venue] is a clear-
20 cut example of the sort of abuse the customer-suit exception is designed to avoid.”
21 Wok & Pan, Indus. v. Staples, Inc., 2015 U.S. Dist. LEXIS 185193, at *7 (C.D.
22 Cal. Aug. 25, 2015).
23 Further, as argued in Lowe’s and Fry’s Motion to Dismiss filed
24 contemporaneously with the instant motion, Lowe’s and Fry’s have requested the
25 Court stay and sever the litigation against Lowe’s and Fry’s from the litigation
26
27
2
Counsel for Simple Products is unaware of any other District where venue is
28 proper for Simple Products pursuant to the patent venue statute 28 U.S.C. §
1400(b).
11
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1 against Simple Products pursuant to the customer suit exception. “When a patent
2 owner files an infringement suit against a manufacturer’s customer and the
3 manufacturer then files an action of non-infringement or patent invalidity, the suit
4 by the manufacturer generally takes precedence.” In re Nintendo of Am., Inc., 756
5 F.3d 1363, 1365 (Fed. Cir. June 25, 2014). “This ‘customer-suit’ exception to the
6 ‘first-to-file’ rule exists to avoid, if possible, imposing the burdens of trial on the
7 customer, for it is the manufacturer who is generally the ‘true defendant’ in the
8 dispute.” Id. “The rationale behind severing and staying in these circumstances is
9 that second-hand entities like retailers or distributors [are not] involved and
10 [would] not have substantive knowledge about the patent infringement, which
11 would begin at the design and manufacture stages.” Richmond v. Lumisol Elec.
12 Ltd., 2014 U.S. Dist. LEXIS 59939, at *25-26 (D.N.J. Apr. 30, 2014). Thus,
13 Plaintiff’s proposed actions would further delay Lowe’s and Fry’s relief.
14 Accordingly, Simple Products asks the Court, in the interests of justice and
15 in seeking to maintain this lawsuit against the true Defendant-in-interest, to
16 transfer this lawsuit against Simple Products to the District of Utah.
17 2. Remaining § 1404(a) Transfer Factors
18 The remaining factors, discussed next, also favor transfer over dismissal.
19 a. Plaintiff’s Choice of Forum
20 “A plaintiff’s choice of venue is generally accorded deference.” Allstar
21 Mktg., 666 F. Supp. 2d at 1131. “A plaintiff’s choice of forum is entitled to less
22 deference, however, when the plaintiff elects to pursue a case outside its home
23 forum.” Id.
24 Here, Plaintiff admits she is a citizen of Taiwan, the Republic of China and
25 cites no other ties to the Central District of California. Dkt. No. 18 ¶ 1. Since
26 neither Plaintiff nor Simple Products are residents of this forum, the Court should
27 accord this factor little weight. See Allstar Mktg., 666 F. Supp. 2d at 1131.
28
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1 b. Convenience of the Parties

2 “The convenience of the parties is . . . an important factor in determining
3 whether to allow a transfer of venue.” Amazon.com, Inc. v. Straight Path IP Grp.,
4 Inc., 2015 U.S. Dist. LEXIS 69281, at *20 (N.D. Cal. May 28, 2015). “The Court .
5 . . should generally not order a transfer which would merely switch the burden of
6 inconvenience from one party to the other.” Arcona, 2018 U.S. Dist. LEXIS
7 47704, at *22 (C.D. Cal. Mar. 22, 2018) (citations omitted).
8 Here, Plaintiff is a Taiwan citizen with seemingly no ties to the Central
9 District of California other than the physical location of counsel for Plaintiff. Case
10 law is clear that when “weighing this factor, courts do not consider the
11 convenience to parties that have chosen to bring a case in a forum where they do
12 not reside.” See Amazon.com, 2015 U.S. Dist. LEXIS 69281, at *20 (citations
13 omitted).
14 In contrast, most of the relevant documents and witnesses in this lawsuit are
15 employees and property of Simple Products, which has its office, warehouse, and
16 shipping center, as well as all of its relevant employees, in Utah. Christensen Dec.
17 ¶¶ 14-18. As such, it is far more convenient for Simple Products to litigate this
18 lawsuit in Utah, where the vast majority of documents and employees are located.
19 This factor weighs in favor of transfer.
20 c. Convenience of the Witnesses
21 “The convenience of witnesses is often the most important factor in
22 determining whether a transfer under § 1404 is appropriate.” Allstar Mktg., 666 F.
23 Supp. 2d at 1132. However, “[t]he Court gives less weight to the inconvenience of
24 party witnesses than key third-party witnesses.” Arcona, 2018 U.S. Dist. LEXIS
25 47704, at *23.
26 Here, Simple Products is not currently aware of any third-party witnesses
27 relevant to this lawsuit. As for party witnesses, most of the witnesses will be
28 employees of Simple Products, all of whom are located in Utah. Christensen Dec.
13
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1 ¶ 17. To the extent Defendants Lowe’s and Fry’s have witnesses relevant to this
2 lawsuit, the burden will be minimal for those witnesses to travel to Utah if needed
3 for trial.
4 In contrast, Plaintiff is listed as the sole inventor in the ʼ793 Patent. Dkt.
5 No. 9-1. As admitted, she is a citizen of Taiwan. Dkt. No. 9 ¶ 1. Thus, Plaintiff
6 will be traveling regardless of where the lawsuit is located. Accordingly, this
7 factor weighs in favor of transfer as the Central District of California is convenient
8 for none of the known witnesses, while the District of Utah is the home venue for
9 the vast majority of Simple Product’s witnesses.
10 d. Location of Books, Records, and Where Relevant
11 Agreements Were Negotiated/Ease of Access to
12 Sources of Proof
13 “The Federal Circuit has concluded that ‘in patent infringement cases the
14 bulk of the relevant evidence usually comes from the accused infringer.
15 Consequently, the place where the defendant’s documents are kept weights in
16 favor of transfer to that location.” WP Banquet v. Target Corp., 2016 U.S. Dist.
17 LEXIS 193462, at *27 (C.D. Cal. Dec. 15, 2016). Here, all of Simple Products
18 books and records related to the Lux Headlamp, including all development and
19 manufacturing documents, sales records, and import records, are located in Utah.
20 Christensen Dec. ¶¶ 16, 18. Further, any contracts or other sales agreements
21 between Simple Products and Lowe’s and Fry’s were executed by Simple Products
22 in Utah. Id. ¶ 16.
23 In contrast, all of Plaintiff’s relevant books and records are likely located in
24 Taiwan. Accordingly, this factor also weighs in favor of transfer as there appear to
25 be no relevant documents, records, or contracts in the Central District of
26 California, while there are numerous relevant records, documents, and contracts
27 located with Simple Products in the District of Utah.
28
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1 e. Which Forum’s Law Applies/State Most Familiar

2 With Governing Law
3 Plaintiff’s only claim is for patent infringement. As this is a federal claim,
4 both the Central District of California and the District of Utah are equally capable
5 of handling Plaintiff’s alleged claim.
6 f. Respective Parties’ Contact With Forum/Contacts
7 Relating to the Plaintiff’s Cause of Action in the
8 Chosen Forum
9 Here, both Plaintiff and Simple Products’ contact with the Central District of
10 California is nominal. Simple Products sells its products, including the product-at-
11 issue, online through Amazon and its own online marketplace. Christensen Dec.
12 ¶ 4. However, persons located in every judicial district in the country have equal
13 access to these online marketplaces, including those persons located in Simple
14 Products’ home state of Utah.
15 As previously noted, Plaintiff is a resident of Taiwan with no apparent ties to
16 the Central District of California other than the location of her counsel. However,
17 location of trial counsel is not relevant to the court’s analysis. See WP Banquet,
18 2016 U.S. Dist. LEXIS 193462, at *24.
19 Accordingly, Plaintiff and Simple Products’ contact with the chosen forum
20 state are weak and attenuated, while Simple Products’ contacts with Utah are very
21 strong. Thus, this factor weighs in favor of transfer.
22 g. Administrative Issues/Differences in Cost of
23 Litigation
24 Simple Products is not aware of any significant differences in administrative
25 issues or costs of litigation in either forum. If anything, it will be more expensive
26 for Simple Products to litigate in California than for Plaintiff to litigate in Utah as
27 Simple Products is likely to have far more witnesses who must be removed from
28 their work at Simple Products in Utah for longer periods of time if litigating in
15
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1 California versus Plaintiff’s need to transfer one person, herself, to conduct

2 litigation in Utah. Regardless of where the trial is held, Plaintiff will be traveling
3 from Taiwan.
4 CONCLUSION
5 Based on the foregoing, Simple Products requests the Court transfer this
6 case to the District of Utah in the interests of justice. If the Court does not find
7 transfer to be in the interests of justice, Simple Products requests the Court dismiss
8 this action against Simple Products.
9
11
13
THORPE NORTH & WESTERN, LLP
14
Jed H. Hansen
16 Mark Bettilyon
17
19
20
21
22
23
24
25
26
27
28
16
EXHIBIT H
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18 ID #:195
1 VENABLE LLP
Daniel S. Silverman (SBN 137864)
2 Email: dsilverman@venable.com
2049 Century Park East, Suite 2300
3 Los Angeles, CA 90067
Telephone: (310) 229-9900
4 Facsimile: (310) 229-9901
5 THORPE NORTH & WESTERN LLP
Mark M. Bettilyon (Admitted Pro Hac Vice)
6 Email: mark.bettilyon@tnw.com
Jed H. Hansen (Pro Hac Vice pending)
7 Email: hansen@tnw.com
175 South Main, Suite 900
8 Salt Lake City, Utah 84111
Telephone: (801) 566-6633
9
Attorneys for Defendants Lowe’s Home
10 Centers, LLC and Fry’s Electronics, Inc.
11
12
UNITED STATES DISTRICT COURT
13
14
WESTERN DIVISION
15
CHIA-LING HUANG, an individual, Case No.: 2:18-cv-10545-SJO-JEM
16
Plaintiff, DEFENDANTS LOWE’S HOME
17 CENTERS, LLC AND FRY’S
v. ELECTRONICS, INC.’S NOTICE
18 OF MOTION AND MOTION TO
LOWE’S HOME CENTERS, LLC., a SEVER AND STAY CLAIMS OR,
19 North Carolina limited liability company; IN THE ALTERNATIVE,
SIMPLE PRODUCTS CORPORATION, a MOTION TO DISMISS
20 Utah corporation; FRY’S PLAINTIFF’S SECOND
ELECTRONICS, INC. and DOES 1-20, AMENDED COMPLAINT FOR
21 inclusive, PATENT INFRINGEMENT
PURSUANT TO FED. R. CIV. P.
22 Defendants. 12(b)(6)
23 JURY TRIAL DEMANDED
24 DATE: April 29, 2019
TIME: 10:00 a.m.
25 CTRM: Courtroom 10C
JUDGE: Hon. S. James Otero
26
27
28
46219691 LOWE’S AND FRY’S MOTION TO SEVER AND STAY OR IN THE ALTERNATIVE, DISMISS
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18 ID #:196
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE that on April 29, 2019, at 10:00 a.m., or as soon
3 thereafter as the matter may be heard before the Honorable S. James Otero, United
4 States Judge, in Courtroom 10C of the United States District Court for the Central
5 District of California, located at 350 West First Street, Los Angeles, California
6 90012, Defendants Lowe’s Home Centers, LLC (“Lowe’s”) and Fry’s Electronics,
7 Inc. (“Fry’s”) will and hereby do move to sever and stay the claims filed against
8 them pursuant to the customer suit exception or, alternatively, dismiss the Second
9 Amended Complaint in part for failure to state a claim pursuant to Fed. R. Civ. P.
10 12(b)(6).
11 The motion is made following the conference of counsel pursuant to Local
12 Rule 7-3, which took place on March 11, 2019.
13 This motion is based upon this Notice of Motion, the concurrently-filed
14 Memorandum of Points and Authorities in support thereof, the declarations of
15 Brian Christensen and Jed Hansen in support thereof, all of the papers and
16 pleadings on file in this action, and upon such other further evidence as the Court
17 may consider at the hearing of the motion.
18
20
22
23
Jed H. Hansen
25 Mark Bettilyon
26
27 Centers, LLC and Fry’s Electronics, Inc.
28
i
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1 TABLE OF CONTENTS
2 INTRODUCTION ...................................................................................................1
3 FACTS APPLICABLE TO THIS MOTION ..........................................................2
4 I. Simple Products and the Lux Headlamp.............................................2
5 II. Lowe’s and Fry’s ................................................................................3
6 PROCEDURAL BACKGROUND .........................................................................3
7 LEGAL STANDARD .............................................................................................4
8 I. Sever and Stay Lawsuit Pursuant to Customer Suit Exception ..........4
9 A. Severance and Stay of Proceedings..........................................4
10 B. Customer Suit Exception ..........................................................5
11 II. Insufficient Pleading ...........................................................................7
12 ARGUMENT...........................................................................................................8
13 I. The Court Should Sever and Stay the Claims Against the
Retailer Defendants Pending Resolution of Plaintiff’s Claims
14 Against Simple Products.....................................................................8
15 A. Discovery Has Not Begun and a Trial Date Has Yet to Be
Set .............................................................................................9
16
B. A Stay of the Lawsuit as to Lowe’s and Fry’s, the
17 Downstream Defendants/Customers, Will Simplify the
Issues in Question and Trial .....................................................9
18
C. Plaintiff Will Not Be Prejudiced or Disadvantaged by a
19 Stay .........................................................................................10
20 II. The Court Should Dismiss Plaintiff’s SAC Because Plaintiff
Does Not Properly Plead Its Claims .................................................10
21
CONCLUSION......................................................................................................12
22
23
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1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 Ashcroft v. Iqbal,
5 556 U.S. 662 (2009) ............................................................................................. 7
6 Bell Atlantic v. Twombly,
7 550 U.S. 544 (2007) ............................................................................................. 7
8 Carucel Invs., L.P. v. Novatel Wireless, Inc.,

2016 U.S. Dist. LEXIS 192609 (S.D. Cal. May 13, 2016) .................................. 6
9
10 CMAX, Inc. v. Hall,
300 F.2d 265 (9th Cir. 1962)................................................................................ 4
11
Egyptian Goddess, Inc. v. Swisa, Inc.,
12 543 F.3d 665 (Fed. Cir. 2008) (en banc) .............................................................. 8
13
Hall v. Bed Bath & Beyond, Inc.,
14 705 F.3d 1357 (Fed. Cir. 2013) .......................................................................... 11
15 Johnson v. Levi Strauss,
16 2009 U.S. Dist. LEXIS 80630 (S.D. Ohio Aug. 5, 2009) .................................. 11
17 Landis v. North Am. Co.,
18 299 U.S. 248 (1936) ............................................................................................. 4
19 Puma SE v. Forever 21, Inc.,

2017 U.S. Dist. LEXIS 211140 (C.D. Cal. June 29, 2017).................. 7, 8, 10, 11
20
21 Richmond v. Lumisol Elec. Ltd.,
2014 U.S. Dist. LEXIS 59939 (D. N.J. Apr. 30, 2014) ....................................... 5
22
Sillage LLC v. Kenrose Perfumes Inc.,
23
2015 U.S. Dist. LEXIS 75965 (C.D. Cal. June 9, 2015).................................. 5, 6
24
Telemac Corp. v. Teledigital, Inc.,
25 450 F. Supp. 2d 1107 (N.D. Cal. 2006) ............................................................... 4
26
Unilin Beheer B.V. v. Tropical Flooring,
27 2014 U.S. Dist. LEXIS 85955 (C.D. Cal. June 13, 2014).................................... 4
28
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1 Universal Electronics, Inc. v. Universal Remote Control, Inc.,

943 F. Supp. 2d 1028 (C.D. Cal. 2013)................................................................ 4
2
Wok & Pan, Indus. v. Staples, Inc.,
3 2015 U.S. Dist. LEXIS 185193 (C.D. Cal. Aug. 25, 2015) ................................. 6
4
WP Banquet, LLC v. Target Corp.,
5 2016 U.S. Dist. LEXIS 193462 (C.D. Cal. Dec. 15, 2016) ............................. 5, 6
6 Other Authorities
7
Fed. R. Civ. P. § 12(b)(6) .......................................................................................... 7
8
Fed. R. Civ. P. § 21.................................................................................................... 4
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 INTRODUCTION
3 Defendants Lowe’s Home Centers, LLC (“Lowe’s”) and Fry’s Electronics,
4 Inc. (“Fry’s”) (collectively the “Retailer Defendants”) jointly move herein to sever
5 and stay the claims pending resolution of the claims against Simple Products
6 Corporation (“Simple Products”).
7 As noted in Simple Products concurrently filed Motion to Dismiss, Plaintiff
8 Chia-Ling Huang, an individual citizen of Taiwan (“Huang” or “Plaintiff”), claims
9 that the Lux-Pro 235 Lumen Headlamp1 (“Lux Headlamp” or the “Accused
10 Product”) manufactured, imported, and sold by Simple Products infringes the
11 D812,793S Design Patent (“’793 Patent”). Simple Products sells the Lux
12 Headlamp to customer-resellers, such as Lowe’s and Fry’s. In turn, Lowe’s and
13 Fry’s sell the Lux Headlamp in their stores throughout the United States.
14 Prior to filing its first Complaint for patent infringement only against
15 Lowe’s, Plaintiff knew that Simple Products was the manufacturer, importer, and
16 primary Defendant-in-interest of the Lux Headlamp. The Retailer Defendants are
17 sued only as sellers of the Accused Product. They have no knowledge of the
18 development, design, manufacture, or importation of the Accused Product. The
19 Retailer Defendants are merely peripheral defendants against whom courts have
20 avoided “imposing the burdens of trial” in light of the fact that “it is the
21 manufacturer who is generally the ‘true defendant’ in the dispute.” Xiaohua Huang
22 v. Open-Silicon, Inc., No. 18-CV-00707-JSW (LB), 2018 WL 5099275, at *5
23 (N.D. Cal. Aug. 27, 2018) (quoting In re Nintendo of Am., Inc., 756 F.3d 1363,
24 1365 (Fed. Cir. 2014)). Here Simple Products has indemnified and is defending
25 the Retailer Defendants, and the resolution of Plaintiff’s claims against Simple
26 Products will likely dispose of the claims against the Retailer Defendants.
27
28
1
The correct name of the product is Lux-Pro LP322 Headlamp.
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1 Accordingly, Lowe’s and Fry’s request the Court sever and stay the
2 litigation against Lowe’s and Fry’s pursuant to the customer suit exception until
3 such time as primary liability for patent infringement is determined as to Simple
4 Products.
5 In the alternative, should this Court decline to sever and stay Plaintiff’s
6 claims against the Retailer Defendants, the Retailer Defendants move, pursuant to
7 Fed. R. Civ. P. 12(b)(6), to dismiss Plaintiff’s Second Amended Complaint
8 (“SAC”) for failure to state a claim upon which relief can be granted. Plaintiff’s
9 SAC fails to adequately plead and explain to the Court what its ’793 Patent covers
10 or how the Lux Headlamp infringes the ’793 Patent. Plaintiff provides no
11 comparison of the patent and the allegedly infringing product and provides no
12 guidance for the Court to determine whether an “ordinary observer” would confuse
13 the patented product and the Lux Headlamp. Accordingly, in the event the Court
14 declines to sever and stay Plaintiff’s claims as to Lowe’s and Fry’s, the SAC
15 should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
16 FACTS APPLICABLE TO THIS MOTION
17 Simple Products and the Lux Headlamp
18 Simple Products is a corporation which specializes in the development,
19 manufacturing, design, and distribution of various products and product lines
20 throughout the United States. See Declaration of Brian Christensen ¶ 2. Simple
21 Products has ongoing relations with several manufacturing facilities, both overseas
22 and in the United States. Id. ¶ 3.
23 The Lux-Pro team has been engineering flashlights since 1999, including
24 work lights and headlamps. Id. ¶ 6. The Lux-Pro products are manufactured by
25 Simple Products’ overseas manufacturers and Simple Products coordinates the
26 import of and sells the products to customer-resellers, such as Lowe’s and Fry’s.
27 Id. ¶ 8. The Lux Headlamp is one such product. Id. ¶ 11.
28
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1 Lowe’s and Fry’s

2 For more than 60 years, Lowe’s has been a leading seller and supplier of
3 home improvement tools throughout the United States. Lowe’s operates hundreds
4 of stores throughout the country. Since it was founded in 1985, Fry’s has been a
5 respected seller of electronics and other goods throughout California and multiple
6 other states. Lowe’s and Fry’s purchase many products from brands throughout the
7 United States and resell those products in their stores, including Lux-Pro
8 headlamps manufactured by Defendant Simple Products.
9 Lowe’s and Fry’s do not control or have any input in the design,
10 manufacturing, or import of the Lux-Pro headlamps and merely act as customer-
11 resellers of the Lux-Pro family of products. Id. ¶ 10. Likewise, once Simple
12 Products sells the Lux-Pro headlamps to Lowe’s and Fry’s, Simple Products does
13 not control or have any input in which stores Lowe’s and Fry’s sell the Lux-Pro
14 products. Christensen Dec. ¶ 11.
15 PROCEDURAL BACKGROUND
16 Both prior to and after filing her initial Complaint only against Lowe’s and
17 Does 1-20, counsel for Plaintiff was advised that Simple Products was the party
18 responsible for coordinating the manufacture and import of the Lux-Pro product-
19 at-issue. See Dkt. No. 1; Hansen Dec. ¶¶ 2-3. After further discussions, Plaintiff
20 amended her Complaint and added Simple Products as a Defendant. Dkt. No. 9;
21 Hansen Dec. ¶ 4. Subsequently, Plaintiff amended her Complaint again and added
22 Fry’s as a Defendant. Dkt. No. 18. All three Complaints have alleged direct
23 infringement of the ’793 Patent.
24 Pursuant to the local rules, counsel for Plaintiff and counsel for Defendants
25 met and conferred regarding the Customer Suit Exception Rule and a stay against
26 Lowe’s and Fry’s. Hansen Dec. ¶ 5. Initially counsel for Huang agreed to stay the
27 claims against Lowe’s and Fry’s—only to change his mind after learning that
28 counsel for defendants also intended to file a motion seeking to transfer the claims
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1 against Simple Products to Utah. Id. ¶¶ 8-9.

2 LEGAL STANDARD
3 Sever and Stay Lawsuit Pursuant to Customer Suit Exception
4 A. Severance and Stay of Proceedings
5 District Courts have broad discretion to sever any claim against a party
6 under Federal Rule of Civil Procedure 21. Fed. R. Civ. P. § 21 (“The court may
7 also sever any claim against a party.”). “[T]he power to stay proceedings is
8 incidental to the power inherent in every court to control the disposition of the
9 causes on its docket with economy of time and effort for itself, for counsel, and for
10 litigants.” Landis v. North Am. Co., 299 U.S. 248, 254 (1936). “The Court must
11 consider the competing interests of the litigants as well as the orderly
12 administration of justice in determining whether a stay will be of significant
13 benefit so as to justify a further delay.” Unilin Beheer B.V. v. Tropical Flooring,
14 2014 U.S. Dist. LEXIS 85955, at *19-20 (C.D. Cal. June 13, 2014) (citing CMAX,
15 Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)).
16 Courts generally consider three factors in deciding a motion to stay: “(1)
17 whether discovery is complete and whether a trial date has been set; (2) whether a
18 stay will simplify the issues in question and trial of the case; and (3) whether a stay
19 would unduly prejudice or present a clear tactical disadvantage to the nonmoving
20 party.” Universal Electronics, Inc. v. Universal Remote Control, Inc., 943 F. Supp.
21 2d 1028, 1030-31 (C.D. Cal. 2013) (quoting Telemac Corp. v. Teledigital, Inc., 450
22 F. Supp. 2d 1107, 1111 (N.D. Cal. 2006)).
23 “A stay is appropriate for cases in the initial stages of litigation or in which
24 there has been little discovery.” Unilin Beheer, 2014 U.S. Dist. LEXIS 85955, at
25 *20. The customer suit exception can be relevant as to whether a stay will simplify
26 the issues in question and trial of a case. Id. at *21-22. “Courts have found undue
27 prejudice in situations where parties are direct competitors and the plaintiffs risk
28 irreparable harm by the defendants’ continued use of the accused devices.” Id. at
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1 *23.
2 B. Customer Suit Exception
3 The customer suit exception “is an exception to the general rule that when
4 two suits are filed involving similar issues and similar parties, the first suit should
5 have priority absent special circumstances. The exception applies when the first
6 suit is filed against a customer who is a mere reseller of the accused goods, while
7 the second suit is a declaratory action brought by the manufacturer of the accused
8 goods.” Sillage LLC v. Kenrose Perfumes Inc., 2015 U.S. Dist. LEXIS 75965, at
9 *12-13 (C.D. Cal. June 9, 2015). The exception is “largely based on the premise
10 that the manufacturer has a presumed greater interest than does a customer in
11 defending its products against charges of patent infringement, so that the
12 manufacturer should be permitted to prosecute its declaratory judgment action
13 elsewhere to protect itself and its clients.” Id. The exception protects against the
14 “danger that two courts will come to inconsistent conclusions about the
15 infringement of the same patent.” Id.
16 “In the past, district courts generally limited the ‘customer suit’ rule to cases
17 in which a plaintiff brought suit against the manufacturer and its customers in
18 different actions that were brought in different districts.” WP Banquet, LLC v.
19 Target Corp., 2016 U.S. Dist. LEXIS 193462, at *12 (C.D. Cal. Dec. 15, 2016).
20 However, the Federal Circuit “extended the ‘customer suit’ rule to cases . . . in
21 which a plaintiff alleges patent infringement against several defendants including
22 both the alleged infringer and its customers.” Id. at *13.
23 While courts recognize that “a downstream defendant may be properly
24 joined with the upstream defendant based on their transaction in the same stream of
25 commerce, courts have [also] exercised their discretion to sever the claims against
26 the downstream defendant from the upstream defendant and then stay the severed
27 claims against the downstream defendant given the ‘peripheral nature’ of claims
28 against the downstream defendant.” Richmond v. Lumisol Elec. Ltd., 2014 U.S.
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1 Dist. LEXIS 59939, at *25-26 (D. N.J. Apr. 30, 2014). “The rationale behind
2 severing and staying in these circumstances is that second-hand entities like
3 retailers or distributors are not involved and would not have substantive knowledge
4 about the patent infringement, which would begin at the design and manufacture
5 stages.” Id. Further still, “[t]he patent infringement suit against a down-stream
6 customer in a district where the manufacturer is not subject to personal jurisdiction
7 [or sensibly, venue] is a clear-cut example of the sort of abuse the customer-suit
8 exception is designed to avoid.” Wok & Pan, Indus. v. Staples, Inc., 2015 U.S.
9 Dist. LEXIS 185193, at *7 (C.D. Cal. Aug. 25, 2015).
10 “In re Nintendo explained that ‘[a]lthough there may be additional issues
11 involving the defendants in [the customer] action, their prosecution will be
12 advanced if [the plaintiff] is successful on the major premises being litigated in
13 [the manufacturer litigation], and may well be mooted if [the plaintiff] is
14 unsuccessful.’” WP Banquet, 2016 U.S. Dist. LEXIS 193462, at *14. Further,
15 because “the retail defendants are only alleged to have infringed plaintiff’s
16 intellectual property rights by purchasing and reselling products distributed by
17 [upstream defendant], it is hard to imagine a situation in which litigation against
18 the distributor would not resolve or at least simplify the litigation against the retail
19 defendants.” Sillage LLC, 2015 U.S. Dist. LEXIS 75965, at *17.
20 An agreement to indemnify the downstream defendant also supports
21 severing and staying litigation against the downstream defendant, as does the
22 downstream defendant agreeing to be bound by the result of the litigation against
23 the upstream defendant, the downstream defendant agreeing to respond to relevant
24 discovery requests related to the upstream defendant, and when the acts of
25 infringement are entirely common such that infringement by a manufacturer would
26 necessarily establish infringement by a customer. See WP Banquet, 2016 U.S.
27 Dist. LEXIS 193462, at *15; Sillage, 2015 U.S. Dist. LEXIS 75965, at *16, *19;
28 Carucel Invs., L.P. v. Novatel Wireless, Inc., 2016 U.S. Dist. LEXIS 192609, at *8
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1 (S.D. Cal. May 13, 2016).

2 Insufficient Pleading
3 A complaint must include sufficient allegations to “give the defendant fair
4 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic
5 v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). A complaint that fails to
6 state a claim upon which relief can be granted may be dismissed. Fed. R. Civ. P.
7 § 12(b)(6). When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a
8 court must take all factual allegations in the complaint as true, but “the tenet that a
9 court must accept as true all of the allegations contained in a complaint is
10 inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
11 order to survive a motion to dismiss, a plaintiff must plead enough facts “to state a
12 claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A plaintiff’s
13 “[f]actual allegations must be enough to raise a right to relief above the speculative
14 level . . . .” Id. at 555 (citation omitted). A complaint is subject to dismissal unless
15 the alleged facts push a claim “across the line from conceivable to plausible.” Id. at
16 570. “A claim has facial plausibility when the Plaintiff pleads factual content that
17 allows the court to draw the reasonable inference that the defendant is liable for the
18 misconduct alleged.” Iqbal, 556 U.S. at 678 (2009) (citing Twombly, 550 U.S. at
19 570). There must be “more than a sheer possibility that a defendant has acted
20 unlawfully.” Id. The SAC fails to meet this standard. The determination is a
21 context-specific task requiring the court “to draw on its judicial experience and
22 common sense.” Id. at 679.
23 “To properly plead design patent infringement, [a defendant] need only:
24 (1) allege ownership of the patent, (2) name each defendant, (3) cite the patent,
25 (4) state the means by which the defendant allegedly infringes, and (5) point to the
26 sections of the patent law invoked.” Puma SE v. Forever 21, Inc., 2017 U.S. Dist.
27 LEXIS 211140, at *5-6 (C.D. Cal. June 29, 2017). A design is “substantially
28 similar” to a patented design if, in viewing the overall appearance of the designs,
7
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1 an “ordinary observer” would be deceived by the similarity of the designs thereby

2 “inducing him to purchase one supposing it to be the other.” Egyptian Goddess,
3 Inc. v. Swisa, Inc., 543 F.3d 665, 679 (Fed. Cir. 2008) (en banc).
4 ARGUMENT
5 The Court Should Sever and Stay the Claims Against the Retailer
6 Defendants Pending Resolution of Plaintiff’s Claims Against Simple
7 Products
8 Courts consider three factors in deciding whether to stay an action, including
9 whether discovery is complete and a trial date has been set, whether a stay will
10 simplify the issues in question and trial, and whether a stay would unduly prejudice
11 or disadvantage the nonmoving party. See infra at 4. A stay may be appropriate for
12 cases in the initial stages of litigation or in which discovery has not commenced.
13 Id. A stay pursuant to the customer suit exception can lead to simplification of the
14 issues in question and trial. Id. There may be undue prejudice when parties are
15 direct competitors. Id. at 4-5. Here, each of these factors weighs strongly in favor
16 of a stay.
17 This case is in the very early stages as no party has propounded discovery
18 and a scheduling order has yet to be entered. In this patent infringement suit,
19 Simple Products is the real party in interest and, therefore, a stay as to the claims
20 against the Retailer Defendants will not unduly predjudice or disadvantage
21 Plaintiff. Further, a stay pursuant to the customer suit exception will undoubtedly
22 simplify the issues in question and trial of the case. Additionally, Plaintiff has
23 failed to plead any facts alleging she directly competes with Defendants.
24 Accordingly, the Retailer Defendants request that the Court exercise its
25 discretion and stay all proceedings as to Lowe’s and Fry’s. The factors relevant to
26 this motion are set forth below.
27
28
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1 A. Discovery Has Not Begun and a Trial Date Has Yet to Be

2 Set
3 This litigation is in extremely early stages. The parties have not created a
4 scheduling order, nor has any party requested any discovery. Thus, this factor
5 weighs heavily in favor of a stay.
6 B. A Stay of the Lawsuit as to Lowe’s and Fry’s, the
7 Downstream Defendants/Customers, Will Simplify the
8 Issues in Question and Trial
9 In its SAC, Plaintiff alleges claims of direct patent infringement against
10 Lowe’s and Fry’s (downstream defendants/customers) and Simple Products
11 (upstream defendant/manufacturer). Dkt. No. 18 ¶¶ 20-21. However, Lowe’s and
12 Fry’s are peripheral defendants with no independent knowledge of the design,
13 development, manufacture, or production of the Lux Headlamp. Christensen Dec.
14 ¶ 10. Since Plaintiff only alleges direct patent infringement against Defendants,
15 Lowe’s and Fry’s cannot be held liable as resellers unless Simple Products is also
16 held liable as the manufacturer of the Accused Product. Similarly, if Simple
17 Products is found not liable for infringement, Lowe’s and Fry’s also cannot be held
18 liable. Recongnizing the valididty of these issues, Huang initially agreed to stay the
19 litigation against Lowes and Fry’s—until she was informed that Simple Products
20 intended to seek to move the claims against it to Utah. Hansen Dec. ¶¶ 8-9. Only
21 then did Huang decide that she did not wish to stipulate to a stay. Further still,
22 Simple Products has agreed to indemnify and defend Lowe’s and Fry’s in this
23 lawsuit.
24 As fully detailed in its Motion to Dismiss or Transfer, venue is not proper in
25 the Central District of California as to Simple Products. Regardless of whether the
26 Court transfers the lawsuit against Simple Products to Utah, the Court should stay
27 the litigation against Lowe’s and Fry’s until such time as the claims between
28 Plaintiff and Simple Products have been resolved, as any remaining claims
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1 between Lowe’s, Fry’s, and Plaintiff will be greatly simplified—if not entirely
2 eliminated. Simple Products should be allowed to defend itself against these
3 claims in a court where venue is proper, the District of Utah. Simple Products
4 should not be required to defend and indemnify claims against its customer-
5 resellers Lowe’s and Fry’s in a court which clearly lacks jurisdiction over Simple
6 Products, nor should this court reward Huang for dragging Lowe’s and Fry’s into
7 this lawsuit uncessarily for the sole purpose of gaming the venue statutes and
8 keeping the lawsuit in this Court – a Court which clearly lacks jurisdiction over
9 Simple Products. This dispute belongs, instead, in a forum where jurisdiction and
10 venue lie without the need to drag customer-resellers Lowe’s and Fry’s into the
11 litigation.
12 C. Plaintiff Will Not Be Prejudiced or Disadvantaged by a Stay
13 Plaintiff has not provided the Court with any allegations that Plaintiff
14 produces or licenses any product using the ’793 Patent or any facts alleging that
15 Plaintiff produces a product that directly competes with the products sold at
16 Lowe’s or Fry’s. Accordingly, Plaintiff does not risk irreparable harm or being
17 prejudiced or disadvantaged by the entry of a stay.
18 Even if Plaintiff does produce or licenses another company to produce a
19 product that competes with products sold at Lowe’s or Fry’s, Plaintiff will be able
20 to fully litigate and enforce her case against Simple Products.
21 The Court Should Dismiss Plaintiff’s SAC Because Plaintiff Does Not
22 Properly Plead Its Claims
23 If a stay is not granted, then the Court should dismiss the complaint. While
24 Plaintiff appears to comply with some of the requirements to plead design patent
25 infringement, Plaintiff wholly fails to “state the means by which the defendant[s]
26 allegedly infringe[].” Puma SE, 2017 U.S. Dist. LEXIS 211140, at *5-6. In fact,
27 Plaintiff fails to describe its own patent, let alone describe Simple Products’ Lux
28 Headlamp with any details to show or aid the Court in determining how the Lux
10
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1 Headlamp allegedly infringes Plaintiff’s patent. Without additional descriptions

2 and comparisons, the SAC fails to raise a plausible claim of design patent
3 infringement. See Johnson v. Levi Strauss, 2009 U.S. Dist. LEXIS 80630, at *19
4 (S.D. Ohio Aug. 5, 2009).
5 While Plaintiff attached her patent and exhibits allegedly showing the Lux
6 Headlamp for sale on Amazon and Lowe’s and Fry’s own websites, she provided
7 no clear photographs, or other written comparison, of her patent and the allegedly
8 ingringing Lux Headlamp. In contrast, courts have been supportive of other cases
9 where plaintiff provided comparison images in its complaint and plaintiff
10 “alleg[ed] how [defendant] [] ‘blatantly copied’ and offered for sale on its website”
11 the product that is substantially similar to the patent-at-issue and “an ordinary
12 observer would be deceived by the resemblance.” Puma SE, 2017 U.S. Dist.
13 LEXIS 211140, at *5-7.
14 Plaintiff further fails to explain how or why an “ordinary observer” would be
15 deceived as to the alleged similarity of designs of Plaintiff’s patent and the Lux
16 Headlamp. In contrast, courts have noted with approval that the plaintiff’s
17 “complaint identified the patent, showed the patented design, and described the
18 accused towel”, that the plaintiff “presented a lengthy complaint, stating that the
19 resemblance is such as to deceive an ordinary observer”, and that the plaintiff
20 asserted “that the accused towel is ‘virtually identical in design’ to [plaintiff’s]
21 Tote Towel”. Hall v. Bed Bath & Beyond, Inc., 705 F.3d 1357, 1363-64 (Fed. Cir.
22 2013).
23 Instead, Plaintiff focused its limited and brief arguments on where
24 Defendants sell the Lux Headlamp in an unsuccessful attempt to prove proper
25 venue as detailed in Simple Products’ Motion to Dismiss or Transfer. Because
26 Plaintiff fails to adequately allege a cognizable legal theory, fails to factually
27 support any legal theory it did attempt to allege, and fails to state a claim for relief
28 that is plausible on its face, the Court should dismiss Plaintiff’s SAC, in its
11
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1 entirety, as to Lowe’s and Fry’s.

2 CONCLUSION
3 For the foregoing reasons, Lowe’s and Fry’s respectfully request that the
4 Court sever the claims against them. Lowe’s and Fry’s further request that all
5 claims against them be stayed pending the final resolution of the claims against
6 Simple Products.
7 Alternatively, in the event the Court declines to sever and stay the claims
8 against the Retailer Defendants, they request the Court dismiss Plaintiff’s SAC, in
9 its entirety, for failure to adequately plead its claims.
10
DATED: March 26, 2019 VENABLE LLP
11
12
Daniel S. Silverman
13
14
Jed H. Hansen
16
Mark Bettilyon
17
18
Centers, LLC and Fry’s Electronics, Inc.
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EXHIBIT I
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CASE NO.: CV 18-10545 SJO (JEMx) DATE: May 1, 2019

TITLE: Chia-Ling Hung v. Lowe's Home Centers, et al.
========================================================================
PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE
Victor Paul Cruz Not Present

Courtroom Clerk Court Reporter
COUNSEL PRESENT FOR PLAINTIFF: COUNSEL PRESENT FOR DEFENDANT:
Not Present Not Present
========================================================================
PROCEEDINGS (in chambers): ORDER GRANTING MOTION TO DISMISS SIMPLE
PRODUCTS AS A DEFENDANT [ECF No. 26]
This matter is before the Court on Defendant Simple Products Corporation's ("Simple Products")
Motion To Dismiss for Improper Venue or In the Alternative, Motion To Transfer To The District
of Utah ("Motion"), filed March 26, 2019. Plaintiff Chia-Ling Hung opposed the Motion on April 15,
2019. Simple Products filed a Reply on April 22, 2019. The Court found this matter suitable for
disposition without oral argument and vacated the hearing set for May 6, 2019. See Fed. R. Civ.
P. 78(b). For the following reasons, the Court GRANTS the Motion and DISMISSES Simple
Products on improper venue grounds.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed the initial complaint for patent infringement against Lowe's Home Center, LLC on
December 20, 2018. The patent relates to Lowe's Home Center, Fry's Electronics, and Simple
Products' design and sale of flashlights and headlamps that purportedly infringe on a design
patent owned by Plaintiff. The infringing product is called the Lux-Pro 235 Lumen Headlamp.
On January 8, 2019, Plaintiff filed a First Amended Complaint ("FAC"), which added Simple
Products as a defendant. (FAC, ECF No. 9.) On February 19, 2019, Plaintiff filed a Second
Amended Complaint ("SAC"), which is the operative complaint in this action. (SAC, ECF No. 18.)
Because the instant Motion centers on whether the Central District is the appropriate venue for
the litigation against Simple Products, the Court focuses on the facts pertaining to Simple
Products. (See Mot., ECF No. 26.)
Simple Products is a Utah corporation. (SAC ¶ 3.) It specializes in the development,

manufacturing, and distribution of various products and product lines throughout the United States.
(Decl. of Brian Christensen ("Christensen Decl.) ¶ 2, ECF No. 26-1.) The Lux-Pro team with
Simple Products has been designing and engineering flashlights since 1999 and has helped to
design the Lux-Pro 235 Lumen Headlamp. (Christensen Decl. ¶ 6.)
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In the SAC, Plaintiff summarily contends that Simple Products imports and distributes the Lux-Pro
235 Lumen Headlamp in this district. (SAC ¶ 12.) Simple also purportedly sells the Lux Headlamp
directly to customers in this district through Amazon.com. (SAC ¶ 13.)
In arguing that the Central District is not the proper venue in which to sue Defendant Simple
Products, Simple Products responds with the following. Lowe's and Fry's, which have much more
significant connections to the Central District of California than Simple Products, do not control or
have any input in the design, manufacturing, or import of the Lux-Pro products, and act only as
customer-resellers of the Lux-Pro family of products. (Christensen Decl. ¶ 10.) Simple Products
operates its business and its warehouse and shipping operations in Utah. (Christensen Decl. ¶
15.) All of Simple Products contracts, sales agreements, or other business decisions are
maintained and/or executed in Utah. (Christensen Decl. ¶ 16.) Simple Products has no
employees, sales representatives or contractors that work out of California. (Christensen Decl.
¶ 19.) Simple Products also does not own or lease any property in California. (Christensen Decl.
¶ 20.)
These proceedings followed.
II. LEGAL STANDARDS
A. Venue in Patent Infringement Actions
Rule 12(b)(3) of the Federal Rules of Civil Procedure provides an avenue by which a party can
seek to dismiss a lawsuit for improper venue. See Fed. R. Civ. P. 12(b)(3). If the propriety of
venue is challenged under Rule 12(b)(3), the plaintiff bears the burden of proving that venue is
proper. See Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979).
When considering a motion to dismiss for improper venue, a court need not accept the pleadings
as true and may consider facts outside of the pleadings. See Doe 1 v. AOL, LLC, 552 F.3d 1077,
1081 (9th Cir. 2009) (citing Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996)).
The decision to dismiss for improper venue, or alternatively to transfer venue to a proper court,
is a matter within the sound discretion of the district court. See King v. Russell, 963 F.2d 1301,
1304 (9th Cir. 1992).
The exclusive patent venue statute, 28 U.S.C. section 1400(b), provides that "[a]ny civil action for
patent infringement may be brought in the judicial district where the defendant resides, or where
the defendant." 28 U.S.C. § 1400(b); see also Fourco Glass Co. V. Transmirra Prod. Corp., 353
U.S. 222, 229 (1957) (holding that Section 1400(b) "is the sole and exclusive provision controlling
venue in patent infringement actions."). Earlier this year, the United States Supreme Court in TC
Heartland LLC v. Kraft Foods Group Brands LLC clarified that, as applied to domestic
corporations, the term "resid[es] . . . refers only to the State of incorporation." 137 S. Ct. 1514,
1521 (2017). The Supreme Court in TC Heartland did not address the latter portion of Section
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1400(b), which makes venue proper in any judicial district "where the defendant has committed
acts of infringement and has a regular and established place of business." 28 U.S.C. § 1400(b).
III. DISCUSSION
A. Venue Is Not Proper In This District Because Simple Products Does Not Have A
Regular And Established Place of Business Here.
As a threshold matter, Plaintiff contends that Simple Products has waived the venue defense by
voluntarily appearing in this Court and availing itself of this venue. This is not true. Simple
Products has filed very few pleadings, only agreeing to stipulations to allow filing of an amended
complaint and applying to have out-of-state attorneys appear pro hac vice before this Court.
District courts have held that even the filing a counterclaim does not waive a defense of improper
venue. See, e.g., Happy Mfg. Co. v. S. Air & Hydraulics, Inc., 572 F.Supp. 891, 893
(N.D.Tex.1982) ("[T]here [is] nothing in Rules 12(h) or 12(b) which suggests that a venue defense
is waived by filing a counterclaim.... Moreover, the policies behind Rule 12(b) strongly support the
conclusion that a defendant does not waive a venue defense by simultaneously filing a
counterclaim."); Rogen v. Memry Corp., 886 F.Supp. 393, 396 (S.D.N.Y.1995) ("[T]he fact that
[Defendant] filed a counterclaim and participated in discovery does not render its objections to
venue abandoned."). See also Hillis v. Heineman, 626 F.3d 1014, 1017 (9th Cir. 2010).
Accordingly, Simple Products has not waived the venue defense based on its appearance before
this Court, which is far less of a significant act than filing a counterclaim.
The Court therefore proceeds to adjudicate whether this district is the proper venue for Plaintiff
to sue Simple Products for patent infringement. Venue in patent litigations exclusively lies "in the
judicial district where the defendant resides, or where the defendant has committed acts of
infringement and has a regular and established place of business." 28 U.S.C. § 1400(b); see also
Fourco, 353 U.S. at 229.
In the instant case, Simple Products does not reside in California. It is a Utah corporation with a
principal place of business and corporate headquarters in Utah. Accordingly, the Court must
determine whether it has committed acts of infringement in this district and whether it has a regular
and established place of business here. The Court ultimately dismisses Simple Products because
it does not have a regular and established place of business in the Central District of California.
1. Regular and Established Place of Business
"In assessing whether a defendant has a regular and established place of business in a district,
the court determines whether the defendant does business in the district through a permanent and
continuous presence there." FastCap, LLC v. Snake River Tool Co., LLC, No. 15-cv-02764, 2015
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WL 6628196, at *4 (N.D. Cal. 2015) (quoting MTEC, LLC v. Nash, No. CV 08-563-AC, 2008 WL
4723483, at *7 (D. Or. Oct. 20, 2008). It is Plaintiff's's burden to make this showing. Piedmont
Label Co., 598 F.2d at 496.
Here, Plaintiff has not alleged that Simple Products has a regular and established place of
business in this district. The only facts alleged by Plaintiff are that Simple Products sells the
infringing products in this district through its retailers and that Simple Products sells the infringing
products in this district through Amazon.com. These facts are not enough. In fact, Simple
Products does not own or lease any property in California, nor does Simple Products have any
employees, sales representatives, or contractors in California. (Christensen Decl. ¶¶ 19-20.)
Accordingly, the Central District of California is not the appropriate venue for Plaintiff to sue Simple
Products.
IV. RULING
For the foregoing reasons, the Court GRANTS Defendant Simple Product's Motion to Dismiss
Defendant Simple Products on improper venue grounds. This dismissal is without prejudice.
IT IS SO ORDERED.
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TITLE: Chia-Ling Hung v. Lowe's Home Centers, et al.
========================================================================
PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE
Victor Paul Cruz Not Present

Courtroom Clerk Court Reporter
COUNSEL PRESENT FOR PLAINTIFF: COUNSEL PRESENT FOR DEFENDANT:
Not Present Not Present
========================================================================
PROCEEDINGS (in chambers): ORDER GRANTING MOTION TO DISMISS [ECF No. 27]
This matter is before the Court on Defendants Lowe's Home Centers LLC and Fry's Electronic's
("Defendants") Motion To Stay or In The Alternative Motion To Dismiss ("Motion"), filed March 26,
2019. Plaintiff Chia-Ling Hung opposed the Motion on April 15, 2019. Defendants filed a Reply
on April 22, 2019. The Court found this matter suitable for disposition without oral argument and
vacated the hearing set for May 6, 2019. See Fed. R. Civ. P. 78(b). For the following reasons,
the Court GRANTS the Motion To Dismiss with leave to amend.1
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed the initial complaint for patent infringement against Lowe's Home Center, LLC on
December 20, 2018. The patent relates to Lowe's Home Center, Fry's Electronics, and Simple
Products' design and sale of flashlights and headlamps that purportedly infringe on a design
patent owned by Plaintiff. The infringing product is called the Lux-Pro 235 Lumen Headlamp.
On January 8, 2019, Plaintiff filed a First Amended Complaint ("FAC"), which added Simple
Products as a defendant. (FAC, ECF No. 9.) On February 19, 2019, Plaintiff filed a Second
Amended Complaint ("SAC"), which is the operative complaint in this action. (SAC, ECF No. 18.)
The SAC alleges as follows. Plaintiff is the lawful owner of all rights, title and interest in U.S.
Patent No. D812,793S ("'793 Patent'"). (SAC ¶ 11.) Defendants purportedly sell in this District
and in the United States the Lux Headlamp. (SAC ¶ 15.) According to Plaintiff, the Lux Headlamp
infringes the '793 Patent. (SAC ¶ 21.) The SAC does not allege anything more with respect to
the '793 Patent and how the actions of Defendants infringe this patent.
1
Concurrent with this Order, the Court has dismissed Simple Products from this action on
improper venue grounds. The Court therefore declines to address Defendants' request for
a stay because there is no parallel litigation taking place involving Simple Products.
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In this Motion, Defendants contend that "Plaintiff has not provided the Court with any allegations
that Plaintiff produces or licenses any product using the '793 Patent or any facts alleging that
Plaintiff proudces a product that directly competes with the product sold at Lowe's or Fry's." (Mot.
at 10, ECF No. 26.)
These proceedings followed.
II. LEGAL STANDARDS
A. Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) "tests the legal
sufficiency of the claims asserted in the complaint." Ileto v. Glock, Inc., 349 F.3d 1191, 1199-200
(9th Cir. 2003). In evaluating a motion to dismiss, a court accepts the plaintiff's factual allegations
in the complaint as true and construes them in the light most favorable to the plaintiff. Shwarz v.
United States, 234 F.3d 428, 435 (9th Cir. 2000). "Dismissal can be based on the lack of a
cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."
Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plain
statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); see
Ileto, 349 F.3d at 1200. "While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To plead
sufficiently, Plaintiff must proffer "enough facts to state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "All allegations and
reasonable inferences are taken as true, and the allegations are construed in the light most
favorable to the non-moving party, but conclusory allegations of law and unwarranted inferences
are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.
2004)(internal citations omitted).
III. DISCUSSION
Infringement of a design patent is evaluated in a two-step process similar to that of a utility patent.
"First, the court must construe the claims of the design patent to determine their meaning and
scope." OddzOn Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396, 1404–05 (Fed. Cir.1997). Design
patents typically are claimed as shown in drawings, though district courts have the discretion to
construe design patents with a detailed textual description. Goodyear Tire & Rubber Co. v.
Hercules Tire & Rubber Co., 162 F.3d 1186, 1116 (Fed Cir. 1998). Second, the Court compares
the construed claims to the accused design. Id. at 1320. The accused product infringes the design
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patent if "the designs have the same general visual appearance, such that it is likely that the
purchaser (or the ordinary observer) would be deceived into confusing" the two designs. Id.; see
also Crocs. Inc. v. Int'l Trade Comm'n, 598 F.3d 1294, 1303 (Fed. Cir.2010) (design patent is
infringed if "an ordinary observer, familiar with the prior art designs, would be deceived into
believing that the accused product is the same as the patented design.").
In the instant case, Plaintiff's SAC falls woefully short of the standard to be met under Federal
Rule of Civil Procedure 12(b)(6). Put simply, Plaintiff has not stated the manner in which
Defendants' products violate the patent that she purportedly owns. For example, Plaintiff has not
given the court exhibits or aids comparing the infringing products and Plaintiff's patented product.
Instead, Plaintiff provides a few poor quality photographs of the infringing products. Moreover,
although Plaintiff cites to the sale of the Lux Headlamp on Amazon.com, Plaintiff never provides
images comparing this product to Plaintiff's patent. Without a description of the purported
infringement taking place, the Court must dismiss the SAC.
IV. RULING
For the foregoing reasons, the Court GRANTS Defendants' Motion To Dismiss. Although Plaintiff
has amended the complaint twice, the Court grants Plaintiff one final chance to amend the
complaint and plead patent infringement. Plaintiff must file a Third Amended Complaint within
ten (10) days from the date of this order.
IT IS SO ORDERED.
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EXHIBIT K
(19)中华人民共和国国家知识产权局
(12)外观设计专利
(10)授权公告号 CN 303903479 S
(45)授权公告日 2016.11.02
(21)申请号 201630169537 .0
(22)申请日 2016 .05 .09
(73)专利权人宁海派对户外用品有限公司
地址 315313 浙江省宁波市宁海县西店镇
滨海西路191号
(72)设计人冯敏　
(74)专利代理机构杭州君度专利代理事务所
(特殊普通合伙) 33240
代理人徐敏灿
(51)LOC(10)Cl .
26-02
图片或照片 6 幅简要说明 1 页
(54)使用外观设计的产品名称
头灯
主视图
CN 303903479 S
CN 303903479 S 外观设计图片或照片 1/1 页
主视图右视图
后视图
俯视图
左视图
仰视图
2
CN 303903479 S 简　要　说　明 1/1 页
1．
本外观设计产品的名称：头灯；
2．
本外观设计产品的用途：用于照明；
3．
本外观设计产品的设计要点：产品的形状；
4．
最能表明本外观设计设计要点的图片或照片：主视图。
3
EXHIBIT L
(19)中华人民共和国国家知识产权局
(12)实用新型专利
(10)授权公告号 CN 205640383 U
(45)授权公告日 2016.10.12
(21)申请号 201620454773 .1
(22)申请日 2016 .05 .18
(73)专利权人宁海派对户外用品有限公司
地址 315313 浙江省宁波市宁海县西店镇
滨海西路191号
(72)发明人冯敏　
(74)专利代理机构杭州君度专利代理事务所
(特殊普通合伙) 33240
代理人徐敏灿
(51)Int .Cl .
F21L 4/00(2006 .01)
权利要求书1页说明书2页附图2页
(54)实用新型名称
头灯
(57)摘要
本实用新型涉及灯具领域，尤其是头灯。头
灯，包括壳体，所述壳体内设有线路板，线路板上
设有灯珠，线路板前设有COB板，灯珠从COB板中
露出，线路板与电源结构连接。本实用新型的有
益之处：灯珠作为主灯使用，并有COB多光源，两
控适应不同需求，提高户外乐趣， COB多颜色光源
也可作为同伴距离信号灯，且遇到突发情况，可
使用口哨等求救，也可使用警示灯，增加野外求
生手段，安全实用。
CN 205640383 U
CN 205640383 U 权　利　要　求　书 1/1 页
1 .头灯，
包括壳体，其特征在于：所述壳体内设有线路板（6），线路板（6）上设有灯珠
（12），线路板（6）前设有COB板（3），灯珠（12）从COB板（3）中露出，线路板（6）与电源结构连
接。
2 .根据权利要求1所述的头灯，其特征在于：所述壳体包括前壳（1）和后盖（10），前壳
（1）和后盖（10）之间设有密封圈（9），后盖（10）下部转动设有底板（11），后盖（10）下部设有
齿体，底板（11）设有卡设齿体的卡边（13）。
3 .根据权利要求1所述的头灯，其特征在于：所述线路板（6）中间设有灯珠（12）， COB板
（3）中间镂空成圆形，壳体前部内壁设有COB板光杯（2）， COB板光杯（2）后面设有COB板（3），
COB板（3）镂空部位设有光杯（4），光杯（4）安装有固定圈（5），灯珠（12）位于光杯（4）中间位
置。
4 .根据权利要求1所述的头灯，其特征在于：所述电源结构包括COB按钮（14）和主灯按
钮（15），壳体顶部设有安装COB按钮（14）和主灯按钮（15）的安装口，壳体内设有电池仓（7），
电池仓（7）上设有电池接触片（16），电池接触片（16）之间设有干电池（8），电池接触片（16）
通过电线与线路板（6）连接， COB按钮（14）和主灯按钮（15）上设有与线路板（6）连接的金属
接触片。
5 .根据权利要求2所述的头灯，其特征在于：所述底板（11）上设有灯带（17），灯带（17）
上设有头带扣（20），头带扣（20）上设有口哨（18）和挂钩（19）。
6 .根据权利要求2所述的头灯，其特征在于：所述底板（11）上设有灯带（17），灯带（17）
上设有警示灯，警示灯包括底座（25），底座（25）上依次设有正极片（24）、电池（23）、功能板
（22）和盖子（21）。
2
CN 205640383 U 说　明　书 1/2 页
头灯
技术领域
[0001] 本实用新型涉及灯具领域，
尤其是头灯。
背景技术
[0002] 随着社会的发展，户外运动也越来越得到大家的喜爱，因此头灯也得到广泛关注，
对野营以及探险等，头灯的作用十分明显，但是目前头灯设计单一，灯源也单一，
对于有更
多需要的场景，无法满足。
发明内容
[0003] 为了解决上述单一光源的技术问题，本实用新型提供头灯。
[0004] 本实用新型的技术方案如下：
[0005] 头灯，包括壳体，所述壳体内设有线路板，线路板上设有灯珠，线路板前设有COB
板，灯珠从COB板中露出，线路板与电源结构连接。
[0006] 所述壳体包括前壳和后盖，前壳和后盖之间设有密封圈，后盖下部转动设有底板，
后盖下部设有齿体，底板设有卡设齿体的卡边。
[0007] 所述线路板中间设有灯珠， COB板中间镂空成圆形，壳体前部内壁设有COB板光杯，
COB板光杯后面设有COB板， COB板镂空部位设有光杯，光杯安装有固定圈，灯珠位于光杯中
间位置。
[0008] 所述电源结构包括COB按钮和主灯按钮，壳体顶部设有安装COB按钮和主灯按钮的
安装口，壳体内设有电池仓，电池仓上设有电池接触片，电池接触片之间设有干电池，电池
接触片通过电线与线路板连接， COB按钮和主灯按钮上设有与线路板连接的金属接触片。
[0009] 所述底板上设有灯带，灯带上设有头带扣，头带扣上设有口哨和挂钩。
[0010] 所述底板上设有灯带，灯带上设有警示灯，警示灯包括底座，底座上依次设有正极
片、电池、功能板和盖子。
[0011] 使用本实用新型的技术方案，灯珠作为主灯使用，并有COB多光源，两控适应不同
需求，提高户外乐趣，COB多颜色光源也可作为同伴距离信号灯，且遇到突发情况，可使用口
哨等求救，也可使用警示灯，增加野外求生手段，安全实用。
附图说明
[0012] 图1是本实用新型的结构示意图；
[0013] 图2是本实用新型壳体的爆炸状态的结构示意图；
[0014] 图3是本实用新型头带扣的结构示意图；
[0015] 图4是本实用新型警示灯的结构示意图。
具体实施方式
[0016] 下面结合附图和实施例对本实用新型作进一步说明。
3
CN 205640383 U 说　明　书 2/2 页
实施例
[0017] 如图1、2、3、4所示的头灯，包括壳体，所述壳体内设有线路板6，线路板6上设有灯
珠12，线路板6前设有COB板3，灯珠12从COB板3中露出，线路板6与电源结构连接。
[0018] 所述壳体包括前壳1和后盖10，前壳1和后盖10之间设有密封圈9，后盖10下部转动
设有底板11，后盖10下部设有齿体，底板11设有卡设齿体的卡边13。
[0019] 所述线路板6中间设有灯珠12， COB板3中间镂空成圆形，壳体前部内壁设有COB板
光杯2， COB板光杯2后面设有COB板3， COB板3镂空部位设有光杯4，光杯4安装有固定圈5，灯
珠12位于光杯4中间位置。
[0020] 所述电源结构包括COB按钮14和主灯按钮15，壳体顶部设有安装COB按钮14和主灯
按钮15的安装口，壳体内设有电池仓7，电池仓7上设有电池接触片16，电池接触片16之间设
有干电池8，电池接触片16通过电线与线路板6连接， COB按钮14和主灯按钮15上设有与线路
板6连接的金属接触片。
[0021] 所述底板11上设有灯带17，灯带17上设有头带扣20，头带扣20上设有口哨18和挂
钩19。
[0022] 所述底板11上设有灯带17，灯带17上设有警示灯，警示灯包括底座25，底座25上依
次设有正极片24、电池23、功能板22和盖子21。
[0023] 使用时，按钮各自控制灯珠12和COB光源，根据需要选择使用，齿体和卡边13可以
调整底板11和后盖10的角度，用以调整灯的角度，在户外帐篷等，可以使用挂钩19挂在帐篷
上，作为照明灯具使用，遇到突发情况，可吹口哨18呼救，也可使用警示灯。
[0024] 应当理解的是，以上所述仅为本实用新型的较佳实施例而已，并不足以限制本实
用新型的技术方案，对本领域普通技术人员来说，在本实用新型的精神和原则之内，可以根
据上述说明加以增减、替换、变换或改进，而所有这些增减、替换、变换或改进后的技术方
案，都应属于本实用新型所附权利要求的保护范围。
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EXHIBIT M

Simple Products v. Huang - Complaint

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Case 2:19-cv-00317-DBP Document 2 Filed 05/09/19 Page 1 of 13

Mark Bettilyon (4798)

Attorneys for Simple Products Corp.

IN THE UNITED STATES DISTRICT COURT

SIMPLE PRODUCTS CORPORATION, a

CHIA-LING HUANG, an individual;

Defendant Chia-Ling Huang and alleges as follows:

NATURE OF THE ACTION

1. This is a civil action seeking a declaratory judgment of non-infringement,

Bluffdale, Utah 84020.

JURISDICTION AND VENUE

Arm Statute, Utah Code Ann. § 78B-3-205.

6. Specifically, Ms. Huang has directly or indirectly introduced the allegedly

by the patent-at-issue throughout the United States, including Utah.

Products is also in Utah.

10. Simple Products is a corporation which specializes in the development, design,

line of Lux-Pro flashlights.

flashlights since 1999, including work lights and headlamps.

and affordable cost.

Patent”) entitled “Headlamp,” a copy of which is attached as Exhibit A.

sell the Lux Pro Headlamp. See Exhibit B.

to a written contract between Lowe’s and Simple Products. See Exhibit C.

directed to Simple Products’ counsel in Utah.

patent infringement of the ‘793 Patent.

No. 2:18-cv-10545, Dkt. No. 1 attached as Exhibit D.

real Defendant-in-interest in the lawsuit.

Central District of California.

negotiations have been unsuccessful.

filed the patents listing himself as the inventor.

state a claim pursuant to Fed. R. Civ. P. 12(b)(6). See Exhibit H.

parties, it was determined that a mediation on those dates was premature.

California Action Allegations

the ʼ793 Patent.

Patent by selling or offering to sell the Lux Pro Headlamp.

Chinese Design Patent Filings

inventor on this Patent.

The inventor for these design patents is listed as Feng Min.

Patent show similar designs.

Huang’s claims of infringement relating to the Lux Pro Headlamp.

43. There is an actual, substantial, and continuing justiciable controversy between

non-infringement, invalidity, and unenforceability of the ’793 Patent.

FIRST CLAIM – DECLARATION OF NON-INFRINGEMENT

forth in the paragraphs above.

Huang as to Simple Products’ non-infringement of the ’793 Patent.

SECOND CLAIM – DECLARATION OF INVALIDITY

forth in the paragraphs above.

of §§ 102, 103, and 112.

allegedly patented invention.

Huang as to the validity of the ’793 Patent.

Simple Products seeks a declaration that the ’793 Patent is invalid.

THIRD CLAIM – UNENFORCEABILITY

forth in the paragraphs above.

design patents filed in China by a different inventor than Ms. Huang.

application filing date, May 5, 2016.

Huang as to the enforceability of the ’793 Patent.

Simple Products seeks a declaration that the ’793 Patent is unenforceable.

PRAYER FOR RELIEF

Ms. Huang as follows:

indirectly, or contributorily, any valid claims of the patent-in-suit;

action alleging that any Simple Products method, product, or technology, or

C. A declaration that the ʼ793 Patent is invalid;

D. A declaration that the ʼ793 Patent is unenforceable;

an award of reasonable attorneys’ fees pursuant to 35 U.S.C. § 285; and

Dated: May 9, 2019 THORPE NORTH & WESTERN LLP

9 Origin. Place an "X" in one of the seven boxes.