Aker BioMarine Antarcitic, AS v. Luhua Biomarine (Shandong) Co., Ltd. et al

Filing 14

AMENDED ORDER granting Plaintiff's ECF No. 3 Emergency Motion for Temporary Restraining Order, re ECF No. 9 Order (see document for details). Signed by Judge Miranda M. Du on 10/6/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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AKER BIOMARINE ANTARCTIC, AS,

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Case No.: 2:16-cv-02314-MMD-PAL

Plaintiff,
v.

AMENDED ORDER GRANTING
PLAINTIFF’S EMERGENCY
MOTION FOR TEMPORARY
RESTRAINING ORDER

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LUHUA BIOMARINE (SHANDONG) CO.,
LTD., and INFINITI MARKETING
GROUP, INC. d/b/a INFINITI
NUTRACEUTICALS,

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Defendants.

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Plaintiff Aker BioMarine (“Aker”) has moved the Court ex parte for an Emergency

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Temporary Restraining Order, Seizure Order, and Preliminary Injunction, pursuant to Rule 65 of

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the Federal Rules of Civil Procedure, the Patent Act (35 U.S.C. § 283), and Local Rule 7-5.

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Aker alleges that Defendants Luhua Biomarine (Shandong) Co., Ltd. (“Luhua”) and

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Infiniti Marketing Group, Inc. d/b/a Infiniti Nutraceuticals (“Infiniti”) (collectively,

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“Defendants”) have manufactured abroad, imported into this District, and distributed krill oil

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products sold under the name “ICERUBY™ Krill Oil” that infringe Aker’s asserted patent, and

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have offered and/or will offer or distribute such products for sale in this District during the

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SupplySide West trade show (the “Trade Show”) in Las Vegas, Nevada during the period

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October 4 through 8, 2016.

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Aker seeks a temporary restraining order to enjoin the sale of those products, as well as

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an order permitting Aker to seize infringing products as well as related evidence of such

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infringing activity, including records of infringing product sales.
FINDINGS AND CONCLUSIONS

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The Court, having duly considered Aker’s Complaint, emergency motion, and the

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declarations and exhibits submitted therewith, hereby makes the following findings and

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conclusions:

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1.

An order other than an ex parte seizure order would not be adequate to achieve

the purposes of 35 U.S.C. § 271 because: (a) Luhua is a China-based manufacturer of krill oil;

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(b) with the exception of its temporary presence in Las Vegas, Nevada, during the SupplySide

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West trade show from October 4 through 8, 2016, Luhua does not have any known regular

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place of business or assets in the United States; and (c) there is a significant risk that

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Defendants will remove from the jurisdiction any evidence of its infringement (including

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documents in paper and electronic form) if an ex parte seizure order is not granted.

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2.

Aker has not publicized its application for an ex parte temporary restraining and

seizure order.

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3.

Aker is likely to succeed on the merits of its patent infringement claim under 35

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U.S.C. § 271. The United States Patent and Trademark Office duly and legally issued U.S.

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Patent No. 9,320,765 (“the ’765 patent”) for krill oil compositions with particular quantities of

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phospholipids, astaxanthin esters and/or omega-3 fatty acids. Aker is the lawful and sole owner

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of the ’765 patent by assignment and owns all rights, title and interest in that patent, including

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all rights needed to bring this action for patent infringement.

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4.

Luhua has manufactured, imported into the United States, and is currently

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offering for sale, krill oil products that infringe the ’765 patent at the SupplySide West trade

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show in Las Vegas, Nevada, which runs from October 4 through 8, 2016.

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5.

Infiniti has imported into the United States, sold, and distributed krill oil

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products that infringe the ’765 patent, and is currently offering these products for sale at the

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SupplySide West trade show in Las Vegas, Nevada, which runs from October 4 through 8,

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2016.

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6.

Absent an ex parte temporary restraining order and a seizure order, Defendants’

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manufacture, use, sales, offers to sell, and/or importation into the United States of its infringing

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krill oil products will result in immediate and irreparable injury to Aker in the form of: (a) lost

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krill oil revenue; (b) lost market share; (c) price erosion, and (d) harm to Aker’s reputation and

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goodwill. Further, because Luhua has no presence in the United States, it may be difficult or

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impossible for Aker to enforce a money judgment against Luhua.

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7.

The evidence of Luhua’s unlawful conduct are or may be in Luhua’s possession

at the SupplySide West trade show and would likely be destroyed, moved, hidden, taken

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outside of the United States, or otherwise made inaccessible to Aker if Luhua was to receive

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notice of Aker’s application for a seizure order or temporary restraining order in advance of

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service of this Order.

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8.

The harm to Aker in denying the requested temporary restraining order and

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seizure order outweighs the harm to the legitimate interests of Defendants from granting Aker

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such relief.

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The public interest weighs in favor of granting Aker the requested temporary

restraining order and seizure order.
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Aker is prepared to deposit $50,000 with the Clerk of the Court as security for

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payment of any damages Defendants may be entitled to recover as a result of a wrongful

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seizure or a wrongful attempted seizure.

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TEMPORARY RESTRAINING ORDER

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IT IS HEREBY ORDERED that, pending a decision by the Court on Aker’s

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application for a preliminary injunction, Defendants, as well as their officers, agents, servants,

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employees, confederates, distributors, and attorneys, (the “Restrained Parties”) are hereby

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temporarily enjoined and restrained from:

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a. Manufacturing, using, selling, offering to sell, or importing into the United

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States, krill oil products that infringe the ’765 patent, including, without limitation, by

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distributing to, offering to sell or by selling such products at the SupplySide West trade show in

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Las Vegas, Nevada during the period of October 4 through 8, 2016; and

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b. Transferring, moving, destroying, or otherwise disposing of: (i) any of Luhua’s

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accused krill oil products; or (ii) any evidence of Defendants’ unlawful activities, including,

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without limitation, any documents in any form or format and any portable media or device

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(such as CDs, DVDs, flash drives, cell phones, PDAs, hard disk drives, laptop computers,

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memory cards, etc.), relating to the infringement of the ’765 patent, except in accordance with

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the below Seizure Order (collectively, “Evidence”).

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IT IS HEREBY FURTHER ORDERED, that upon two (2) business days’ written

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notice to the Court and Aker’s counsel, or as otherwise permitted by leave of Court, Defendants

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may, upon proper showing, appear and move for the dissolution or modification of the

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provisions of this Order.

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SEIZURE ORDER

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IT IS HEREBY ORDERED that Evidence (as defined above but for clarity including

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laptops and media that electronically stores documents or any information concerning

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Defendants’ accused krill oil products) may be seized from only Defendant Luhua by a Federal

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law enforcement officer (such as a United States marshal or an officer or agent of the United

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States Customs Service, Secret Service, Federal Bureau of Investigation, or Post Office) or may

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be seized by a State or local law enforcement officer (“Law Enforcement”) assisted by one or

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more attorneys or representatives of Aker, at the respective booths rented or occupied by

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Defendants at the SupplySide West trade show in Las Vegas, Nevada during the period of

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October 4 through 8, 2016.

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Law Enforcement may use all reasonable force in conducting the seizure and may open

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doors, locks, boxes, brief cases, and containers of any type or nature to locate and identify

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Evidence to be seized. Attorneys and other representatives of Aker shall accompany Law

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Enforcement during the seizure to identify the Evidence to be seized. Aker’s counsel shall

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itemize and take possession of the seized Evidence, provide a copy of the inventory to the Law

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Enforcement agency assisting with the seizure, and file the inventory with the Court. In addition,

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Aker’s counsel may record the contents of Defendant Luhua’s booths and Evidence by

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photographic, audio, and/or videographic means during the seizure action. Law Enforcement

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shall not retain custody of seized Evidence but shall ensure that they are placed in the custody of

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Aker’s counsel. Aker agrees to indemnify Law Enforcement agency (including all of its

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employees, contractors, or agents) who may assist with the seizure and shall hold them harmless

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from any suit, claim, cause of action, damage, loss, or injury arising from the execution of the

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seizure described in this Order.

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IT IS HEREBY FURTHER ORDERED that Defendant Luhua shall provide any
passwords necessary to access any electronically stored documents or electronic devices.
IT IS HEREBY FURTHER ORDERED, that the Summons, Complaint, Plaintiff’s

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Emergency Ex Parte Motion for Temporary Restraining and Seizure Order and for Preliminary

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Injunction, and all accompanying exhibits, declarations, and papers must be served upon

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Defendants, if found, at the time of the seizure, and by other means reasonably calculated to give

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Defendants reasonable notice of this action, which shall include personal delivery of the

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aforementioned papers by Plaintiff’s counsel to the Defendants at the Trade Show, email, and

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Federal Express. If Plaintiff’s counsel learns that the email notice or Federal Express package

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has not been delivered due to technical or other reasons, Plaintiff’s counsel shall promptly notify

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the court.

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IT IS HEREBY FURTHER ORDERED, that Aker shall deposit with the Clerk of the

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Court the amount of FIFTY THOUSAND UNITED STATES DOLLARS ($50,000) to serve as

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sufficient security for the payment of any damages Defendants may be entitled to recover as a

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result of a wrongful seizure or a wrongful attempted seizure. To the extent Defendants believe

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that additional security is necessary pursuant to Rule 65(c) of the Federal Rules of Civil

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Procedure, Defendants shall so move the Court and shall provide notice to Aker’s counsel of

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such motion.

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IT IS HEREBY FURTHER ORDERED, that a preliminary injunction hearing is set
for October 18, 2016 at 10:00 a.m.
Defendants shall file and serve any opposition to Aker’s motion for a preliminary
injunction on or before October 13, 2016; and
Aker shall file and serve any reply in support of its motion for a preliminary injunction
on or before October 17, 2016 by 12:00 p.m.

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__________________________________
UNITED STATES DISTRICT JUDGE

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October 6, 2016
Entered _________________, at __ 2:30 pm

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