Bruder Healthcare Company v. Bigwall Enterprises et. al.

8/13/2019 Bruder Healthcare Company v. Bigwall Enterprises et. al.

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NATURE OF THE CASE

1. Plaintiff Bruder seeks legal and equitable remedies for infringement ofUnited States Patent No. 8,420,882 for a WOUND AND THERAPY

COMPRESS AND DRESSING (hereinafter the 882 Patent) resulting from the

actions and conduct of Defendants as set forth herein.

2. This action arises under the patent laws of the United States, 35 U.S.C. 1 etseq., and this Court has subject matter jurisdiction over all causes of action set

forth herein under 28 U.S.C. 1331, 1332, and 1338.

3. Venue is proper in this district pursuant to 28 U.S.C. 1391 and 1400.4. This Court has personal jurisdiction in this district pursuant to 28 U.S.C. 1400(b) and pursuant to Georgias long-arm statute, O.C.G.A. 9-10-91.

PARTIES

5. Plaintiff Bruder is a Georgia corporation having a regular and establishedplace of business at 3150 Engineering Parkway, Alpharetta, Georgia 30004.

6. Upon information and belief, Defendant Walgreens is an Illinois corporationwith offices located at 104 Wilmot Road, Deerfield, Illinois, 60015. Upon

information and belief, Defendant Walgreens operates stores in many locations

under the name Walgreens, including stores in Atlanta, Georgia.


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7. Upon information and belief, Defendant BigWall is a Texas corporation withoffices located at 5151 Belt Line Road Unit 878, Dallas, Texas 75254, and sells

products under the name BigWall and/or under private label house brands such

as Walgreens. Upon information and belief, Defendant BigWall sells products

throughout the United States, including Georgia.

FACTS

8. Upon information and belief, Defendants Walgreens and/or BigWall aredoing business in the United States including the State of Georgia and within the

judicial district of the United States District Court for the Northern District of

Georgia.

9. Upon information and belief, Defendant Walgreens has used and has beenand is offering to sell, making, selling, and/or importing wound and therapy

compresses and dressings within the United States, including selling through its

retail stores located in the United States.

10. Upon information and belief, Defendant BigWall has used and has been andis offering to sell, making, selling, and/or importing wound and therapy

compresses and dressings and is supplying the same to Defendant Walgreens in the

United States.

11. Defendants Walgreens and/or BigWall sell such wound and therapy


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compresses and dressings products to customers in the state of Georgia.

12. On April 16, 2013, United States Patent No. 8,420,882, entitled "WOUNDAND THERAPY COMPRESS AND DRESSING" was duly and legally issued,

naming Mark H. Bruder and Aaron N. Ingram as the inventors. The 882 Patent

sets forth a method of providing moisture therapy and/or heat therapy to a subject

by applying a moist therapy compress against a treated body portion. A true and

accurate copy of the 882 Patent is attached hereto as Exhibit A.

13. Plaintiff Bruder is the assignee of record of the 882 Patent. A true andaccurate copy of the assignment record for the 882 Patent is attached hereto as

Exhibit B. Therefore, Bruder has the right to sue on the 882 Patent, and Bruder is

entitled to collect damages arising from the infringement of the 882 Patent.

Plaintiff Bruder has been (and is) selling wound and therapy compresses and

dressings under the brand name Thermalon that are protected by the 882 Patent.

14. Upon information and belief, Defendants have been and are currentlymaking, using, offering for sale, selling and/or importing wound and therapy

compresses and dressings that infringe the 882 Patent, including, but not

necessarily limited to, the Moist Heat Back Wrap products and the Moist Heat

Neck Wrap products. Such infringing products include the following:

a. Walgreens Item Number 276655; and


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b. Walgreens Item Number 276656.

Attached as Exhibit C are photocopies of the product cards included in the

packages for Defendants wound and therapy compresses and dressings (Moist

Heat Back Wrap products and the Moist Heat Neck Wrap products).

15. The wound therapy compresses and dressings offered for sale and sold byDefendants are especially made and specifically adapted for use in a manner that

infringes the 882 Patent. The instructions provided along with these products

instruct the user to utilize the products in a manner that infringes the 882 Patent.

16. Defendant Walgreens previously bought Bruders now-patented wound andtherapy compresses and dressings sold under Bruders Thermalon brand, but

stopped purchasing the wound and therapy compresses and dressings from Bruder

and instead sourced a similar product from BigWall.

17. Upon information and belief, Defendants are, and have been, infringing,contributing to infringement, and inducing infringement of the 882 Patent by

selling infringing wound and therapy compresses and dressings to customers in the

United States, including customers in the Northern District of Georgia. This

selling of the infringing wound and therapy compresses and dressings is conducted

at least in part through established distribution channels, and Defendants will

continue to do so unless enjoined by this Court. For example, Defendants are


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presently selling such infringing products through Walgreens stores and on-line, as

seen below (images from some of Walgreenss website pages directed to such).


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18. Upon information and belief, Defendant Walgreens has engaged in the past,and is presently engaging, in the active inducement of infringing activities in

violation of 35 U.S.C. 271. Namely, Defendant Walgreens is, and has been,

knowingly inducing purchasers of its wound and therapy compresses and dressings

to use the same in a manner that infringes the 882 Patent.

19. Upon information and belief, Defendant BigWall has engaged in the past,


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and is presently engaging, in the active inducement of infringing activities in

violation of 35 U.S.C. 271. Namely, Defendant BigWall is, and has been,

knowingly inducing purchasers of its wound and therapy compresses and dressings

to use the same in a manner that infringes the 882 Patent.

20. Neither Plaintiff nor the named inventors (the Patentees) of the 882 Patenthave granted a license or any other rights to Defendants to make, use, offer for

sale, or sell the invention covered by the 882 Patent. Therefore, the conduct of

Defendants Walgreens and BigWall is unlicensed.

21. Upon information and belief, the infringement of Defendants Walgreens andBigWall has been with knowledge of the 882 Patent.

22. Defendant Walgreens had actual knowledge of the 882 Patent at least asearly as October 3, 2013 when Defendant Walgreens was informed by letter that

Bruder had patents on such and requested that Walgreens cease its infringing

activities.

23. Although Defendant Walgreens had actual knowledge of the 882 Patent,Defendant Walgreens has not avoided, ceased or desisted making, using, selling,

and/or offering to sell products covered by the 882 Patent. Furthermore,

Defendant Walgreens has not avoided, ceased or desisted actively inducing

infringement of the 882 Patent.


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24. Defendant BigWall had actual knowledge of the 882 Patent at least as earlyas October 16, 2013 when Defendant BigWalls counsel wrote to Bruder about

Bruders patents on such.

25. Although Defendant BigWall had actual knowledge of the 882 Patent,Defendant BigWall has not avoided, ceased or desisted making, using, selling,

and/or offering to sell products covered by the 882 Patent. Furthermore,

Defendant BigWall has not avoided, ceased or desisted actively inducing

infringement of the 882 Patent.

26. Plaintiff Bruder markets and sells wound and therapy compresses anddressings covered by the 882 Patent though a variety of channels. Walgreens

Shops is just one of the many stores and channels in which the Plaintiffs wound

and therapy compresses and dressings are marketed and offered for sale.

27. Defendant Walgreens knew about the Plaintiffs patent and was aware of thePlaintiffs products in the marketplace. Indeed, Defendant Walgreens sold

Plaintiffs products since before Defendant Walgreens decided to market a similar

product.

28. Upon information and belief, Defendant BigWall also was aware of thePlaintiffs products in the marketplace.

29. Despite having knowledge of Plaintiffs products in the marketplace, the


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Defendants chose to infringe, continued to infringe, and/or induced infringement in

reckless disregard of the 882 Patent. Thus, the infringement by one or both of the

Defendants is willful.

30. Plaintiff Bruder has been damaged by the foregoing infringing acts of theDefendants in an amount to be determined at trial or upon an accounting.

31. By reason of said acts by Defendants, Plaintiff has been and will continue tobe seriously damaged and irreparably injured unless Defendants are enjoined by

this Court from the actions complained of herein, and thus, Plaintiff is without an

adequate remedy at law.

32. Joinder of defendants BigWall and Walgreens is appropriate under 35U.S.C. 299, as Plaintiff's right to relief is asserted against the parties jointly,

severally, or in the alternative with respect to or arising out of the same transaction,

occurrence, or series of transactions or occurrences relating to the making, using,

importing into the United States, offering for sale, or selling of the same accused

product or process; and questions of fact common to all defendants or counterclaim

defendants will arise in the action. For example, upon information and belief, the

infringing Walgreens Moist Heat Back Wrap and Moist Heat Neck Wrap products

are manufactured and/or imported by or for BigWall, sold by BigWall to

Walgreens, and distributed, offered and sold by Walgreens to end-users.


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COUNT I INDUCED PATENT INFRINGEMENT

33. The preceding sections are incorporated herein by reference.34. This count is an action at law and in equity for patent infringement andPlaintiff Bruder seeks legal and equitable remedies against Defendants Walgreens

and BigWall for infringement of United States Patent No. 8,420,882. In particular,

Defendants Walgreens and BigWall have infringed this issued patent of Bruder.

35. Plaintiff Bruder has complied in all respects with the provisions of 35 U.S.C.1 et seq., and all other laws governing patents to secure exclusive rights and

privileges in and to the patented invention.

36. Upon information and belief, for some time now Defendants Walgreens andBigWall have been offering infringing wound and therapy compresses and

dressings products in violation of Bruders United States Patent No. 8,420,882.

37. In selling the wound and therapy compresses and dressings of Defendants,the Defendants actively induce infringement of the 882 Patent by instructing

purchasers of the wound and therapy compresses and dressings products to use the

products in a method which infringes the 882 Patent. Such instructions are

included in the materials sold with the wound and therapy compresses and

dressings products sold by Defendants.

38. Such instructions by Defendants have been and continue to be given to


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purchasers of Defendants wound and therapy compresses and dressings products

with full knowledge of the 882 Patent.

39. Use of the wound and therapy compresses and dressings products bypurchasers of Defendants wound and therapy compresses and dressings products,

alone or together with the instructions provided by Defendants, satisfies every

feature of at least one claim of Bruders United States Patent No. 8,420,882, such

that the Defendants products and the customers use thereof infringe the 882

Patent.

40. Defendants are liable for actively inducing infringement of the 882 Patentby advertising, marketing, and selling products and/or methods on Walgreens

website, BigWalls catalog, and Walgreens stores with the specific intent that the

ultimate customer will infringe the 882 Patent.

41. Defendants above acts have been without the permission, license, orconsent of Plaintiff Bruder.

COUNT II DIRECT PATENT INFRINGEMENT

42. The preceding sections 1-32 are incorporated herein by reference.43. This count is an action at law and in equity for patent infringement andPlaintiff Bruder seeks legal and equitable remedies against Defendants Walgreens



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45. Upon information and belief, for some time now Defendants Walgreens andBigWall have been using wound and therapy compresses and dressings products in

violation of Bruders United States Patent No. 8,420,882, in support of their sales

efforts for such products. For example, upon information and belief, Defendants

have used such products in an infringing manner in testing the products in support

of their sales and in making printed product materials (including the product cards

of Exhibit C).

46. In using the wound and therapy compresses and dressings of Defendants, theDefendants have directly infringed the 882 Patent by using the products in a

method which infringes the 882 Patent. Such use by Defendants have been and

continue to be with full knowledge of the 882 Patent.

47. Use of the wound and therapy compresses and dressings products byDefendants, alone or together with the provision of the wound and therapy

compresses and dressings products by Defendants, satisfies every feature of at least

one claim of Bruders United States Patent No. 8,420,882, such that the


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Defendants use thereof infringes the 882 Patent.


COUNT III CONTRIBUTORY PATENT INFRINGEMENT

49. The preceding sections 1-32 are incorporated herein by reference.50. This count is an action at law and in equity for patent infringement andPlaintiff Bruder seeks legal and equitable remedies against Defendants Walgreens





52. Upon information and belief, for some time now Defendants Walgreens andBigWall have been offering for sale and selling infringing wound and therapy

compresses and dressings products for use in a manner that infringes the 882

Patent.

53. The wound therapy compresses and dressings sold by Defendants areespecially made and adapted for use in a manner that is consistent with the method

protected by the 882 Patent.


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54. The Defendants are actively engaging in contributory patent infringementby offering for sale and selling such products for use in practicing the method of

the 882 Patent. Moreover, the Defendants are contributing to the infringement of

the 882 Patent by specifically instructing purchasers of the wound and therapy

compresses and dressings products to use the products in a manner that is

consistent with the method protected by the 882 Patent. Such instructions are

included in the materials sold with the wound and therapy compresses and

dressings products sold by Defendants.

55. Such instructions by Defendants have been and continue to be given topurchasers of Defendants wound and therapy compresses and dressings products

with full knowledge of the 882 Patent and of the Defendants infringement

thereof, or in the alternative, Defendants are willfully blind as to the 882 Patent

and their infringement of the same.

56. Use of the wound and therapy compresses and dressings products bypurchasers of Defendants wound and therapy compresses and dressings products,

alone or together with the instructions provided by Defendants, satisfies every

feature of at least one claim of Bruders United States Patent No. 8,420,882, such

that the Defendants products and the customers use thereof infringe the 882

Patent.


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57. The wound therapy compresses and dressings sold by Defendants are notstaple articles or commodities of commerce suitable for substantial non-infringing

use.

58. By offering to sell and selling their wound therapy compresses and dressingswithin the United states, knowing these items to be especially made or specifically

adapted for use in a manner that is consistent with the method claimed in the 882

Patent, Defendants have engaged in contributory infringement in violation of 35

U.S.C. 271(c).

59. Defendants are liable for engaging in contributory infringement of the 882Patent by knowingly advertising, marketing, and selling products and/or methods

on Walgreens website, BigWalls catalog, and Walgreens stores with the specific

intent that the ultimate customer will use such products in a manner that infringes

the 882 Patent.

60. Defendants conduct in offering for sale and selling the infringing productshas been willful, negligent and/or reckless, and in knowing disregard for Plaintiffs

rights.



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PRAYER FOR RELIEF

62. Upon information and belief, the acts of direct patent infringement, inducedpatent infringement and/or contributory patent infringement of one or both of the

Defendants, according to Counts I, II and/or III, have been willful, with the

knowledge that its acts were unlawful, and for the purpose of deriving revenue or

other financial gain.

63. Defendants have infringed and will continue to infringe the 882 Patent ofPlaintiff Bruder unless enjoined by this Court.

64. The acts of Defendants constitute patent infringement in violation of the 35U.S.C. 271 et seq.

65. Plaintiff Bruder is entitled to an injunction, pursuant to 35 U.S.C. 283,restraining Defendants Walgreens and/or BigWall, their officers, agents,

employees, and all persons acting in concert with them from engaging in further

patent infringement of Plaintiffs 882 Patent.

66. Plaintiff Bruder, pursuant to 35 U.S.C. 284, is further entitled to recover (1)the damages sustained by the Plaintiff (but in any event not less than a reasonable

royalty), and (2) the costs, expenses and reasonable attorneys fees incurred in

bringing the present action.


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67. The circumstances of this case, including Defendants conduct of copyingBruders product, justifies an enhancement of the damages under 35 U.S.C. 284,

up to three times the actual damages.

68. The circumstances of this case, including the willful infringement ofDefendants, render this case an exceptional case under 35 U.S.C. 285.

WHEREFORE, Plaintiff prays for an Order of this Court, entering judgment:

A. Holding that Defendants Walgreens and BigWall have infringed the 882Patent;

B. Permanently enjoining Defendants, their officers, agents, employees,representatives, subsidiaries, successors, assigns, and all others acting in concert

therewith, from making, selling or offering for sale any product using a method

that infringes the 882 Patent, and from otherwise infringing, contributing to, or

inducing infringement of the 882 Patent;

C. Requiring Defendants to account to Plaintiff for all sales and purchases thathave occurred to date of products using a method that infringes the 882 Patent;

D. Providing an accounting for damages resulting from Defendants patentinfringement, induced infringement and/or contributory infringement;

E. Awarding damages to Plaintiff pursuant to 35 U.S.C. 284 in an amount


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adequate to compensate Plaintiff for the patent infringement (in no event less than

a reasonable royalty), and finding that, in light of the knowing, willful, and wanton

nature of the Defendants infringement, such award be increased to three times the

amount of the damages found or assessed;

F. Providing an assessment of interest on the damages so computed;G. Finding this to be an exceptional case and awarding Plaintiff all of its costsand reasonable attorneys fees in respect thereto in accordance with 35 U.S.C.

284-285;

H. The destruction or surrender of all infringing products within the possessionor control of Defendants, at Bruders election;

I. Requiring Defendants to provide full disclosure of any and all informationrelating to their suppliers, retailers, distributors and/or affiliates of infringing

products or component parts thereof; and

J. Awarding such further and other relief as this Court deems just and proper.


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JURY DEMAND

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

Respectfully Submitted,

/s/ Arthur A. Gardner

Arthur A. Gardner

[email protected] GROFF GREENWALD &

VILLANUEVA, PC

2018 Powers Ferry Road, Suite 800

Atlanta, Georgia 30339

770.984.2300 (ph)

770.984.0098 (fax)

[email protected]

Georgia Bar No. 283995

Attorneys for Plaintiff, Bruder Healthcare

Company

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing and the attached documents comply with

LR 7.1(D) and LR 5.1, ND Ga. The font and point size used in preparing the

foregoing document are Times New Roman, 14 pt.

/s/ Arthur A. Gardner

Arthur A. Gardner

Attorney for Plaintiff

Date post:	04-Jun-2018
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Bruder Healthcare Company v. Bigwall Enterprises et. al.

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