Dyson Technology Limited et al v. Cornucopia Products LLC

Filing 1

COMPLAINT. Filing fee received: $350.00, receipt number PHX 0970-6718742, filed by Dyson Technology Limited, Dyson Incorporated (submitted by William Maledon). (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet)(REK)

OSBORN
MALEDON
A PROFESSIONAL ASSOCIATION
ATTORNEYS AT LAW

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______________________

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The Phoenix Plaza
21st Floor
2929 North Central Avenue
Phoenix, Arizona 85012-2793
P.O. Box 36379
Phoenix, Arizona 85067-6379
Telephone
Facsimile

602.640.9000
602.640.9050

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William J. Maledon, Atty. No. 003670
Eric M. Fraser, Atty. No. 027241
OSBORN MALEDON, P.A.
2929 North Central Avenue
Suite 2100
Phoenix, Arizona 85012-2794
602-640-9000
[e-mail]
[e-mail]
Robert S. Shwarts (pending Pro Hac Vice)
Robert A. Rosenfeld (pending Pro Hac Vice)
Russell P. Cohen (pending Pro Hac Vice)
ORRICK, HERRINGTON & SUTCLIFFE LLP
405 Howard Street
San Francisco, California 94105-2669
415-773-5700
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Dyson Technology Limited; Dyson,
Inc.,

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COMPLAINT FOR PATENT
INFRINGEMENT

Plaintiffs,
Demand for Jury Trial

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vs.

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Cornucopia Products, LLC,

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Defendant.

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Plaintiffs Dyson Technology Limited and Dyson, Inc. (collectively, “Dyson”)
hereby demand a jury trial and allege as follows for its complaint against Defendant
Cornucopia Products, LLC (“Cornucopia”):

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4176413

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PARTIES

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1.

Plaintiff Dyson Technology Limited is a Private Limited Company

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organized and existing under the laws of England and Wales, with its principal place of

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business in Malmesbury, United Kingdom.

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2.

Plaintiff Dyson, Inc. is an Illinois corporation with its principal place of

business in Chicago, Illinois.

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3.

Upon information and belief, Cornucopia is an Arizona limited liability

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company with its principal place of business in Maricopa County, Arizona. Cornucopia

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may be served with process by serving its registered agent, Alpha Legal Forms &

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Moreinc, 4500 E Speedway Blvd #31, Tucson, AZ 85712-5325.

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4.

Dyson is a leading innovator and provider of bladeless fan products

throughout the world.

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JURISDICTION AND VENUE

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5.

This is an action for patent infringement of U.S. Patents Nos. D602,143 (the

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“'143 Patent,” Exhibit A), D605,748 (the “'748 Patent,” Exhibit B), 8,052,379 (the “'379

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Patent,” Exhibit C), 8,092,166 (the “'166 Patent,” Exhibit D), under the patent laws of the

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United States, Title 35 of the United States Code, including (but not limited to) 35 U.S.C.

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§ 271.

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6.

This Court has subject matter jurisdiction over Dyson’s claims pursuant to

28 U.S.C. §§ 1331 and 1338(a).
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This Court has personal jurisdiction over Cornucopia. Cornucopia is

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incorporated in and resident of this district and has consented and submitted to this

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Court’s personal jurisdiction by suing Dyson, Inc. and Dyson Ltd. in this judicial district

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on February 2, 2012 (Case 2:12-cv-00234-NVW) (“Related Action”).

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8.

Venue is proper in this Court under 28 U.S.C §§ 1391 and 1400(b) because

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Cornucopia is a resident of this district, has its principal place of business in this district,

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and is subject to personal jurisdiction in this judicial district.

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BACKGROUND
9.

Cornucopia is willfully infringing Dyson’s intellectual property by selling

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blatant copies of Dyson’s innovative bladeless fans. A visual comparison of Cornucopia’s

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fan and Dyson’s fan, as shown below, demonstrates the degree of copying.

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Dyson 12 Inch Table Fan

Cornucopia 12 Inch Bladeless Fan

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10.

The copying of Dyson’s fan is so pervasive that many parts of Cornucopia’s

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fan are interchangeable with the corresponding parts of Dyson’s fan. For example,

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Cornucopia’s cylindrical air nozzle fits perfectly and locks into Dyson’s base. And

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Dyson’s cylindrical air nozzle fits perfectly and locks into Cornucopia’s base.

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Cornucopia’s copying of Dyson’s fan even extends to the number and

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position of screws for various parts, and the precise shapes of intricate internal

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components, which were designed by Dyson engineers.

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12.

Cornucopia’s copying of Dyson further extends to the figures of Dyson’s

operating manual and assembly guide, as shown below.

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Figures from Dyson and Cornucopia Operating Manuals

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Dyson

Cornucopia

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Figures from Dyson and Cornucopia Operating Manuals

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Dyson

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Cornucopia

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13.

In the Related Action, Cornucopia attempts to justify its willful

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infringement of Dyson’s intellectual property by baselessly alleging antitrust violations

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and tortious interference with business expectancy. The Related Action also seeks a

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declaratory judgment of non-infringement and invalidity of four Dyson Technology

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Limited utility patents: U.S. Patent No. 7,931,449 (the “'449 Patent”); U.S. Patent No.

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7,972,111 (the “'111 Patent”); the '379 Patent; and the '166 Patent.

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14.

Dyson Technology Limited is not a party to the Related Action. When the

Related Action complaint was filed, Dyson Technology Limited was unaware of
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Cornucopia and no Dyson entity had possession of Cornucopia’s fan with which to

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conduct an infringement analysis. Dyson did not locate a distributor of Cornucopia’s fan

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until late March when it learned they were being sold by Bed Bath & Beyond. Dyson

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acquired sample Cornucopia fans shortly thereafter.

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The Related Action complaint contends that Dyson’s patents are invalid

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over a prior art reference, Japanese Application No. S56-167897 (“JP '897,” attached

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hereto as Ex. E). Cornucopia makes this allegation despite the fact that JP '897 was

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disclosed to the United States Patent and Trademark Office (“U.S. PTO”) in each of

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Dyson’s patent applications that issued as the '449, '111, '379, and '166 Patents.

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Significantly, the U.S. PTO issued Dyson’s patents in view of that reference.
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Cornucopia further alleges in paragraphs 20 and 21 of the Related Action

complaint that its fan is based on JP '897, stating:
Cornucopia developed its own bladeless fan inspired by the Japanese
invention.
Cornucopia spent significant time and money analyzing the Japanese patent
and creating its own bladeless fan.

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This allegation is completely rebutted by the fact that Cornucopia’s fan is so closely

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copied from Dyson’s fan that its parts are interchangeable. By comparison, as illustrated

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below, Cornucopia’s product bears little resemblance to the fan disclosed in JP '897.

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JP '897, Fig. 1

Dyson’s 12 Inch Table
Fan

Cornucopia 12 Inch
Bladeless Fan

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In the Related Action, Cornucopia fails to address the full scope of Dyson’s

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intellectual property rights with respect to bladeless fans. Cornucopia makes no

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allegations against the valid and enforceable design patents (the '143 Patent and the '748

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Patent) that it infringes.

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18.

Design patents protect the appearance of products as viewed by an ordinary

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observer. The U.S. PTO found Dyson’s designs patentable over the designs shown in the

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figures of JP '897. A simple visual comparison confirms that JP '897 has a substantially

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different appearance than Dyson’s design patents and products. For example, JP '897

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shows a narrow hula-hoop shaped nozzle whereas Dyson’s design patents disclose a much

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deeper cylindrically shaped nozzle:

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JP '897, Fig. 2

Dyson '143 Design Patent,
Fig. 5

Dyson '748 Design
Patent, Fig. 5

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Cornucopia’s knockoff fan has Dyson’s cylindrically shaped nozzle and

does not replicate the hula-hoop shaped nozzle of JP '897:

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JP '897, Fig. 2

Nozzle of Dyson’s 12 Inch
Table Fan

Nozzle of Cornucopia’s
12 Inch Bladeless Fan

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As a further example, the nozzle of JP '897 connects to a relatively narrow

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neck, which thereafter flares out half-way down the base into a section that is about as

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wide as the nozzle, whereas Dyson’s '143 design patent claims a fan base that is

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substantially cylindrical and that does not flare out at the mid-section of the base:

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Dyson '143 Design
Patent, Fig. 3

JP '897, Fig. 1

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Cornucopia’s knockoff fan misappropriates the combination of a

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cylindrically shaped nozzle on a substantially cylindrical base in the proportions of

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Dyson’s design. Cornucopia’s fan does not employ the proportions or shapes of JP '897

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with its narrow neck and flared-out base.

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Since filing the Related Action, Cornucopia has begun selling its knockoffs

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online and in a number of major retail outlets including Bed Bath & Beyond at less than

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half the price of a comparably sized Dyson fan.

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Cornucopia’s extensive intellectual property infringement is irreparably

harming Dyson and must be stopped.
COUNT 1: PATENT INFRINGEMENT BY CORNUCOPIA

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Dyson incorporates paragraphs 1-23 as if fully set forth herein.

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25.

United States Patent No. D602,143, entitled “Fan,” was duly and legally

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issued by the United States Patent and Trademark Office on October 13, 2009.

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Dyson Technology Limited is the owner by valid assignment of the entire

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right, title, and interest in and to the '143 Patent and possesses all rights of recovery under

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the '143 Patent, including the right to recover damages for past infringement.

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Cornucopia has been and is now making, using, selling, and offering for sale

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within the United States, or importing into the United States, bladeless fans, including the

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Cornucopia 12 Inch Bladeless Fan, that infringes the '143 Patent.

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'143 Patent, Fig. 1

Dyson 12 Inch Table Fan

Cornucopia 12 Inch
Bladeless Fan

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Cornucopia has been contributing to the infringement of and/or actively

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inducing the infringement of the '143 Patent by others by, among other things, distributing

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or offering for sale products, including the Cornucopia 12 Inch Bladeless Fan, that teaches

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third parties to assemble and use said products in a manner that directly infringes the '143

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Patent.

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29.

Dyson has no adequate remedy at law against Cornucopia’s acts of

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infringement and Dyson will suffer irreparable harm unless Cornucopia is preliminarily

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and permanently enjoined from its infringement of the '143 Patent.

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On information and belief, Cornucopia has had knowledge of the '143 Patent

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since at least February 2, 2012 and has not ceased its infringing activity. Cornucopia’s

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infringement of the '143 Patent has been and continues to be willful and deliberate.

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31.

Cornucopia, by way of its infringing activity, has caused and continues to

cause Dyson to suffer damages in an amount to be determined at trial.

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COUNT 2: PATENT INFRINGEMENT BY CORNUCOPIA

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32.

Dyson incorporates paragraphs 1-31 as if fully set forth herein.

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33.

United States Patent No. D605,748, entitled “Fan,” was duly and legally

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issued by the United States Patent and Trademark Office on December 8, 2009.
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Dyson Technology Limited is the owner by valid assignment of the entire

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right, title, and interest in and to the '748 Patent and possesses all rights of recovery under

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the '748 Patent, including the right to recover damages for past infringement.

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35.

Cornucopia has been and is now making, using, selling, and offering for sale

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within the United States, or importing into the United States, products, including the

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Cornucopia 12 Inch Bladeless Fan, that infringes the '748 Patent.

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'748 Patent, Fig. 3.

Nozzle from Dyson’s 12
Inch Table Fan

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Nozzle from Cornucopia’s
12 Inch Bladeless Fan

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36.

Cornucopia has been contributing to the infringement of and/or actively

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inducing the infringement of the '748 Patent by others by, among other things, distributing

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or offering for sale products, including the Cornucopia 12 Inch Bladeless Fan, that teaches

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third parties to assemble and use said products in a manner that directly infringes the '748

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Patent.

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37.

Dyson has no adequate remedy at law against Cornucopia’s acts of

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infringement and Dyson will suffer irreparable harm unless Cornucopia is preliminarily

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and permanently enjoined from its infringement of the '748 Patent.

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38.

On information and belief, Cornucopia has had knowledge of the '748 Patent

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since at least February 2, 2012 and has not ceased its infringing activity. Cornucopia’s

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infringement of the '748 Patent has been and continues to be willful and deliberate.

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39.

Cornucopia, by way of its infringing activity, has caused and continues to

cause Dyson to suffer damages in an amount to be determined at trial.

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COUNT 3: PATENT INFRINGEMENT BY CORNUCOPIA

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40.

Dyson incorporates paragraphs 1-39 as if fully set forth herein.

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41.

United States Patent No. 8,052,379, entitled “Fan Assembly,” was duly and

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legally issued by the United States Patent and Trademark Office on November 8, 2011.
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Dyson Technology Limited is the owner by valid assignment of the entire

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right, title, and interest in and to the '379 Patent and possesses all rights of recovery under

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the '379 Patent, including the right to recover damages for past infringement.

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Cornucopia has been and is now making, using, selling, and offering for sale

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within the United States, or importing into the United States, products, including the

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Cornucopia 12 Inch Bladeless Fan, that infringe claims of the '379 Patent. In particular,

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the Cornucopia 12 Inch Bladeless Fan has a base, a body tiltable relative to the base. It

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emits air flow from a nozzle, which comprises a Coanda surface.

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Cornucopia has been contributing to the infringement of and/or actively

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inducing the infringement of the '379 Patent by others by, among other things, distributing

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or offering for sale products, including the Cornucopia 12 Inch Bladeless Fan, that teaches
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third parties to assemble and use said products in a manner that directly infringes the '379

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Patent.

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Dyson has no adequate remedy at law against Cornucopia’s acts of

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infringement and Dyson will suffer irreparable harm unless Cornucopia is preliminarily

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and permanently enjoined from its infringement of the '379 Patent.

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Cornucopia has had knowledge of the '379 Patent since at least February 2,

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2012 and has not ceased its infringing activity. Cornucopia’s infringement of the '379

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Patent has been and continues to be willful and deliberate.

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Cornucopia, by way of its infringing activity, has caused and continues to

cause Dyson to suffer damages in an amount to be determined at trial.

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COUNT 4: PATENT INFRINGEMENT BY CORNUCOPIA

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48.

Dyson incorporates paragraphs 1-47 as if fully set forth herein.

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United States Patent No. 8,092,166, entitled “Fan,” was duly and legally

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issued by the United States Patent and Trademark Office on January 10, 2012.

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50.

Dyson Technology Limited is the owner by valid assignment of the entire

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right, title, and interest in and to the '166 Patent and possesses all rights of recovery under

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the '166 Patent, including the right to recover damages for past infringement.

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Cornucopia has been and is now making, using, selling, and offering for sale

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within the United States, or importing into the United States, products, including the

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Cornucopia 12 Inch Bladeless Fan, that infringe claims of the '166 Patent. In particular,

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the Cornucopia 12 Inch Bladeless Fan has a nozzle with two facing surfaces, with one

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biased towards the other, and spacers that space apart the facing surfaces.

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Cornucopia has been contributing to the infringement of and/or actively

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inducing the infringement of the '166 Patent by others by, among other things, distributing

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or offering for sale products, including the Cornucopia 12 Inch Bladeless Fan, that teaches

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third parties to assemble and use said products in a manner that directly infringes the '166

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Patent.

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53.

Dyson has no adequate remedy at law against Cornucopia’s acts of

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infringement and Dyson will suffer irreparable harm unless Cornucopia is preliminarily

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and permanently enjoined from its infringement of the '166 Patent.

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Cornucopia has had knowledge of the '166 Patent since at least February 2,

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2012 and has not ceased its infringing activity. Cornucopia’s infringement of the '166

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Patent has been and continues to be willful and deliberate.

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Cornucopia, by way of its infringing activity, has caused and continues to

cause Dyson to suffer damages in an amount to be determined at trial.

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PRAYER FOR RELIEF
WHEREFORE, Dyson prays for the following relief:
A.

A judgment in favor of Dyson that Cornucopia has infringed

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literally and/or under the doctrine of equivalents, claims of the

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'143 Patent;

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B.

A judgment in favor of Dyson that Cornucopia has infringed

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literally and/or under the doctrine of equivalents, claims of the

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'748 Patent;

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C.

A judgment in favor of Dyson that Cornucopia has infringed

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literally and/or under the doctrine of equivalents, claims of the

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'379 Patent;

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D.

A judgment in favor of Dyson that Cornucopia has infringed

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literally and/or under the doctrine of equivalents, claims of the

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'166 Patent;

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E.

A preliminary and permanent injunction, enjoining

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Cornucopia and its officers, directors, agents, servants,

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employees, affiliates, divisions, branches, subsidiaries, parents

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and all others acting in concert or privity with any of them

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from infringing, inducing the infringement of, or contributing

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to the infringement of the '143, '748, '379, and '166 Patents;
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F.

An award to Dyson of the damages to which it is entitled

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under 35 U.S.C. § 284 for Cornucopia’s past infringement and

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any continuing or future infringement up until the date

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Cornucopia is finally and permanently enjoined from further

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infringement, including both compensatory damages and

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treble damages for willful infringement;

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G.

A declaration that this is an “exceptional” case within the

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meaning of 35 U.S.C. § 285, entitling Dyson to an award of its

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attorney’s fees, expenses, and costs;

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H.

A judgment and order requiring Cornucopia to pay Dyson the

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costs incurred in bringing this action (including all

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disbursements), as well as attorney’s fees as provided by 35

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U.S.C. § 285;

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I.

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interest on damages; and

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J.

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Such other and further relief in law or in equity to which
Dyson may be justly entitled.

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An award to Dyson of pre-judgment and post-judgment

JURY TRIAL DEMAND
Dyson respectfully demands a trial by jury of any and all issues triable of right
before a jury.
DATED this 2nd day of May, 2012.
OSBORN MALEDON, P.A.

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By___s/William J. Maledon_____________
William J. Maledon
Eric M. Fraser
2929 North Central Avenue
Suite 2100
Phoenix, Arizona 85012-2794
Attorneys for Plaintiffs

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Of Counsel:

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Robert S. Shwarts (pending Pro Hac Vice)
Robert A. Rosenfeld (pending Pro Hac Vice)
Russell P. Cohen (pending Pro Hac Vice)
ORRICK, HERRINGTON & SUTCLIFFE LLP
405 Howard Street
San Francisco, California 94105-2669
415-773-5700
[e-mail]
[e-mail]
[e-mail]

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