DietGoal Innovations LLC v. Arby's Restaurant Group, Inc. et al

Filing 1

COMPLAINT Complaint for Patent Infringement against ABP Corporation d/b/a Au Bon Pain, Arby's Restaurant Group, Inc., Bojangle's Restaurants Inc., Burger King Holdings, Inc., CHICK-FIL-A, INC., CKE Restaurants, Inc. d/b/a Hardee's, Culver Franchising System, Inc., DineWise Inc., Doctor's Associates, Inc. d/b/a Subway, Dunkin' Brands Group, Inc., EPL Intermediate, Inc. d/b/a El Pollo Loco, Google Inc., International Dairy Queen,Inc., Jack in the Box Inc., Jimmy John's Franchise LLC, McDonald's Corporation, Panda Express, Inc., Panda Restaurant Group, Inc., Sonic Corp., TCBY Enterprises, Inc., Taco Bell Corp., The Television Food Network, G.P., d/b/a Food Network, Wawa, Inc., Wegmans Food Markets, Inc., Wendy's International, Inc., Whole Foods Market, Inc. ( Filing fee $ 350 receipt number 0540-3227498.), filed by DietGoal Innovations LLC. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet)(Joe, Christopher)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
DIETGOAL INNOVATIONS LLC,
Plaintiff,
v.
ARBY‟S RESTAURANT GROUP, INC.;
ABP CORPORATION
D/B/A AU BON PAIN;
BOJANGLE‟S RESTAURANTS INC.;
BURGER KING HOLDINGS, INC.;
CHICK-FIL-A, INC.;
CKE RESTAURANTS, INC.
D/B/A HARDEE‟S;
CULVER FRANCHISING SYSTEM, INC.;
DOCTOR‟S ASSOCIATES, INC.
D/B/A SUBWAY;
INTERNATIONAL DAIRY QUEEN, INC.;
DINEWISE INC.;
DUNKIN‟ BRANDS GROUP, INC.;
EPL INTERMEDIATE, INC.
D/B/A EL POLLO LOCO;
GOOGLE INC.;
JACK IN THE BOX INC.;
JIMMY JOHN‟S FRANCHISE LLC;
MCDONALD‟S CORPORATION;
PANDA RESTAURANT GROUP, INC.;
PANDA EXPRESS, INC.;
SONIC CORP.;
TACO BELL CORP.;
TCBY ENTERPRISES, INC.;
THE TELEVISION FOOD NETWORK, G.P.,
D/B/A FOOD NETWORK;
WAWA, INC.;
WEGMANS FOOD MARKETS, INC.;
WENDY‟S INTERNATIONAL, INC.; AND
WHOLE FOODS MARKET INC.,
Defendants.

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Civil Action No. 2:11-cv-______
Jury Trial Demanded

PLAINTIFF’S COMPLAINT FOR PATENT INFRINGEMENT

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

Page 1

Plaintiff DietGoal Innovations LLC files this Complaint against Arby‟s Restaurant
Group, Inc.; ABP Corporation d/b/a Au Bon Pain; Bojangle‟s Restaurants Inc.; Burger King
Holdings, Inc.; Chick-Fil-A, Inc.; CKE Restaurants, Inc. d/b/a Hardee‟s; Culver Franchising
System, Inc.; Doctor‟s Associates, Inc. d/b/a Subway; International Dairy Queen, Inc.; DineWise
Inc.; Dunkin‟ Brands Group, Inc.; EPL Intermediate, Inc. d/b/a El Pollo Loco; Google Inc.; Jack
in the Box Inc.; Jimmy John‟s Corporation; Panda Restaurant Group, Inc.; Panda Express, Inc.;
Sonic Corp.; Taco Bell Corp.; TCBY Enterprises, Inc.; The Television Food Network, G.P.,
d/b/a Food Network; Wawa, Inc.; Wegmans Food Markets, Inc.; Wendy‟s International, Inc.;
and Whole Foods Market Inc. (collectively the “Defendants”) and alleges as follows.

PARTIES
1.

Plaintiff DietGoal Innovations LLC (“DietGoal Innovations”) is a Texas Limited

Liability Company based in Austin, Texas.
2.

Upon information and belief, Defendant Arby‟s Restaurant Group, Inc.

(“Arby‟s”) is a corporation organized and existing under the laws of the State of Georgia, with
its principal place of business located at 1155 Perimeter Center West, Suite 1200, Atlanta,
Georgia 30338. Arby‟s may be served with process through its registered agent Corporation
Service Company d/b/a CSC - Lawyers Incorporating Service Company, 211 East 7th Street,
Suite 620, Austin, Texas 78701-3218.
3.

Upon information and belief, Defendant ABP Corporation d/b/a Au Bon Pain

(“ABP”) is a corporation organized and existing under the laws of the State of Massachusetts,
with its principal place of business located at 1 Au Bon Pain Way, Boston, Massachusetts
02210. ABP may be served with process through its registered agent CT Corporation System,
9 Capital Street, Concord, New Hampshire 03301.

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

Page 2

4.

Upon

information

and

belief,

Defendant

Bojangle‟s

Restaurants

Inc.

(“Bojangle‟s”) is a corporation organized and existing under the laws of the State of North
Carolina, with its principal place of business located at 9432 Southern Pines Blvd, Charlotte,
North Carolina 28273. Bojangle‟s may be served with process through its registered agent
Eric M. Newman, 9432 Southern Pine Boulevard, Charlotte, North Carolina 28273.
5.

Upon information and belief, Defendant Burger King Holdings, Inc. (“Burger

King”) is a corporation organized and existing under the laws of the State of Florida, with its
principal place of business located at 5505 Blue Lagoon Drive, Miami, Florida 33126. Burger
King may be served with process through its registered agent Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
6.

Upon information and belief, Defendant Chick-Fil-A, Inc. (“Chick-Fil-A”) is a

corporation organized and existing under the laws of the State of Georgia, with its principal place
of business located at 5200 Buffington Road, Atlanta, Georgia 30349. Chick-Fil-A may be
served with process through its registered agent CT Corporation System, 350 N. St. Paul Street,
Suite 2900, Dallas, Texas 75201-4234.
7.

Upon information and belief, Defendant Culver Franchising System, Inc.

(“Culver”) is a corporation organized and existing under the laws of the State of Wisconsin, with
its principal place of business located at 1240 Water Street, Prairie du Sac, Wisconsin 53578.
Culver may be served with process through its registered agent Lea Culver, 1240 Water St.,
Prairie Du Sac, Wisconsin 53578.
8.

Upon information and belief, Defendant International Dairy Queen, Inc. (“Dairy

Queen”) is a corporation organized and existing under the laws of the State of Minnesota, with
its principal place of business located at 7505 Metro Boulevard, Minneapolis, Minnesota 55439.

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

Page 3

Dairy Queen may be served with process through its registered agent CT Corporation System,
350 N. St. Paul Street, Suite 2900, Dallas, Texas 75201.
9.

Upon information and belief, Defendant DineWise Inc. (“DineWise”) is a

corporation organized and existing under the laws of the State of New York, with its principal
place of business located at 500 Bi County Boulevard, Suite 400, Farmingdale, New York
11735. DineWise may be served with process through its President at 500 Bi County Boulevard,
Suite 400, Farmingdale, New York 11735.
10.

Upon information and belief, Defendant Dunkin‟ Brands Group, Inc. (“Dunkin‟

Brands”) is a corporation organized and existing under the laws of the State of Massachusetts,
with its principal place of business located at 130 Royall Street, Canton, Massachusetts 02021.
Dunkin‟ Brands may be served with process through its registered agent Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808.
11.

Upon information and belief, Defendant EPL Intermediate, Inc. d/b/a El Pollo

Loco (“El Pollo Loco”) is a corporation organized and existing under the laws of the State of
California, with its principal place of business located at 3535 Harbor Blvd. Suite 100, Costa
Mesa, California 92626-1494. El Pollo Loco may be served with process through its registered
agent Corporation Service Company dba CSC – Lawyers Incorporating Service, 2730 Gateway
Oaks Dr., Suite 100, Sacramento, CA 95833.
12.

Upon information and belief, Defendant The Television Food Network, G.P.,

d/b/a Food Network (“Food Network”) is a corporation organized and existing under the laws of
the State of New York, with its principal place of business located at 75 Ninth Avenue, New
York, New York 10011. Food Network may be served with process through its President at 75
Ninth Avenue, New York, New York 10011.

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

Page 4

13.

Upon information and belief, Google Inc. (“Google”) is a corporation organized

and existing under the laws of the State of California, with its principal place of business located
at 1600 Amphitheatre Parkway, Mountain View, California 94043. Google may be served with
process through its registered agent Corporation Service Company d/b/a CSC – Lawyers Inc.,
211 East 7th Street, Suite 620, Austin, Texas 78701-3218.
14.

Upon information and belief, Defendant CKE Restaurants, Inc. d/b/a Hardee‟s

(“Hardee‟s”) is a corporation organized and existing under the laws of the State of California,
with its principal place of business located at 6307 Carpinteria Ave., Suite A, Carpinteria,
California 93013. Hardee‟s may be served with process through its registered agent Corporation
Service Company dba CSC – Lawyers Incorporating Service, 2730 Gateway Oaks Dr., Suite
100, Sacramento, CA 95833.
15.

Upon information and belief, Defendant Jack in the Box Inc. (“Jack in the Box”)

is a corporation organized and existing under the laws of the State of California, with its
principal place of business located at 9330 Balboa Avenue, San Diego, California 92123. Jack
in the Box may be served with process through its registered agent CT Corporation System,
350 N. St. Paul Street, Suite 2900, Dallas, Texas 75201.
16.

Upon information and belief, Defendant Jimmy John‟s Franchise LLC (“Jimmy

John‟s”) is a corporation organized and existing under the laws of the State of Illinois, with its
principal place of business located at 2212 Fox Drive, Champaign, Illinois 61820. Jimmy
John‟s may be served with process through its registered agent Jeffery B. Wampler, 411 W.
University Ave., Champaign, Illinois 61824.
17.

Upon

information

and

belief,

Defendant

McDonald‟s

Corporation

(“McDonald‟s”) is a corporation organized and existing under the laws of the State of Illinois,

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

Page 5

with its principal place of business located at 1 McDonald‟s Plaza, Oak Brooks, Illinois 60523.
McDonald‟s may be served with process through its registered agent Prentice Hall Corporation
System, 211 East 7th Street, Suite 620, Austin, Texas 78701.
18.

Upon information and belief, Defendant Panda Restaurant Group, Inc. and Panda

Express, Inc. (collectively “Panda Express”) are corporations organized and existing under the
laws of the State of California, with their principal place of business located at 1683 Walnut
Grove Avenue, Rosemead, California 91770. Panda Express may be served with process
through its registered agent David S. Chang, 1646 Rising Meadow, Arlington, Texas 76018.
19.

Upon information and belief, Defendant Sonic Corp. (“Sonic”) is a corporation

organized and existing under the laws of the State of Oklahoma, with its principal place of
business located at 300 Johnny Bench Drive, Oklahoma City, Oklahoma 73104. Sonic may be
served with process through its registered agent Paige S. Bass at 300 Johnny Bench Drive,
Oklahoma City, Oklahoma 73104.
20.

Upon information and belief, Defendant Doctor‟s Associates, Inc. d/b/a Subway

(“Subway”) is a corporation organized and existing under the laws of the State of Connecticut,
with its principal place of business located at 325 Bic Dr., Milford, Connecticut 06461-3072.
Subway may be served with process through its registered agent Corporation Service Company,
211 East 7th Street, Suite 620, Austin, Texas 78701.
21.

Upon information and belief, Defendant Taco Bell Corp. (“Taco Bell”) is a

corporation organized and existing under the laws of the State of California, with its principal
place of business located at 1 Glen Bell Way, Irvine, California 92618. Taco Bell may be
served with process through its registered agent CT Corporation System, 350 N. St. Paul Street,
Suite 2900, Dallas, Texas 75201.

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

Page 6

22.

Upon information and belief, Defendant TCBY Enterprises, Inc. (“TCBY”) is a

corporation organized and existing under the laws of the State of Utah, with its principal place of
business located at 2855 E Cottonwood Pkwy, Suite 400, Salt Lake City, Utah 84121-7050.
TCBY may be served with process through its registered agent Michael R. Ward at 1141 W.
2400 S., Salt Lake City, Utah 84119.
23.

Upon information and belief, Defendant Wawa, Inc. (“Wawa”) is a corporation

organized and existing under the laws of the State of Pennsylvania, with its principal place of
business located at Red Rood, Baltimore Pike, Wawa, Pennsylvania 19063. Wawa may be
served with process through its registered agent CT Corporation System, 1635 Market Street,
Philadelphia, Pennsylvania 19103.
24.

Upon information and belief, Wegmans Food Markets, Inc. (“Wegmans”) is a

corporation organized and existing under the laws of the State of New York, with its principal
place of business located at 1500 Brooks Avenue, P.O. Box 30844, Rochester, New York 146030844. Wegmans may be served with process through its registered agent Paul S. Speranza, Jr. at
1500 Brooks Ave., Box 30844, Rochester, New York 14603-0844.
25.

Upon information and belief, Defendant Wendy‟s International, Inc. (“Wendy‟s”)

is a corporation organized and existing under the laws of the State of Ohio, with its principal
place of business located at 1 Dave Thomas Boulevard, Dublin, Ohio 43017. Wendy‟s may be
served with process through its registered agent Corporation Service Company d/b/a CSC Lawyers Incorporating Service Company, 211 East 7th Street, Suite 620, Austin, Texas 787013218.
26.

Upon information and belief, Whole Foods, Market Inc. (“Whole Foods”) is a

corporation organized and existing under the laws of the State of Texas, with its principal place

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

Page 7

of business located at 550 Bowie Street, Austin, Texas 78703. Whole Foods may be served with
process through its registered agent CT Corporation System, 350 N. St. Paul Street, Suite 2900,
Dallas, Texas 75201.
JURISDICTION AND VENUE
27.

This is an action for patent infringement arising under the patent laws of the

United States of America, Title 35, United States Code.
28.

This Court has original jurisdiction over the subject matter of this action pursuant

to 28 U.S.C. §§ 1331 and 1338(a).
29.

Upon information and belief, each of the Defendants is subject to this Court‟s

general and/or specific personal jurisdiction because it (a) is a resident of the State of Texas;
and/or (b) has designated an agent for service of process in the State of Texas; and/or (c) has
committed acts of infringement in the State of Texas as alleged below; and/or (d) is engaged in
continuous and systematic activities in the State of Texas. Therefore, this Court has personal
jurisdiction over each of the Defendants under the Texas long-arm statute, TEX. CIV. PRAC. &
REM. CODE §17.042.
30.

Venue is proper in this district under 28 U.S.C. §§ 1391(c) and 1400(b). On

information and belief, each Defendant has a regular and established place of business in this
district, and/or has transacted business in this district and has committed and/or induced acts of
patent infringement in this district.
THE PATENT-IN-SUIT
31.

On July 1, 2003, the United States Patent and Trademark Office issued United

States Patent No. 6,585,516 (the “ʻ516 patent”) entitled “Method and System for Computerized

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

Page 8

Visual Behavior Analysis, Training, and Planning,” a true copy of which is attached as
Exhibit A.
32.

DietGoal Innovations is the exclusive licensee of the „516 patent and possesses all

rights to sue for and recover all past, present and future damages for infringement of the „516
patent.
CLAIM 1 -- INFRINGEMENT OF U.S. PATENT NO. 6,585,516
33.

Defendant Arby‟s has been and now is directly infringing one or more claims of

the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United States the
computer implemented website www.arbys.com, which has a computerized meal planning
interface at http://www.arbys.com/food/build-a-meal-calculator.html.
34.

Defendant ABP has been and now is directly infringing one or more claims of the

„516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United States the
computer implemented website www.aubonpain.com, which has a computerized meal planning
interface at http://www.aubonpain.com/nutrition/smartmenu.aspx.
35.

Defendant Bojangle‟s has been and now is directly infringing one or more claims

of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United States
the computer implemented website www.bonjangles.com, which has a computerized meal
planning interface at http://bojangles.com/menu#sandwiches.
36.

Defendant Burger King has been and now is directly infringing one or more

claims of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United
States the computer implemented website www.bk.com, which has a computerized meal
planning interface at http://www.bk.com/en/us/menu-nutrition/index.html.

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

Page 9

37.

Defendant Chick-Fil-A has been and now is directly infringing one or more

claims of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United
States the computer implemented website www.chick-fil-a.com, which has a computerized meal
planning interface at http://www.chick-fil-a.com/Food/Meal.
38.

Defendant Culver has been and now is directly infringing one or more claims of

the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United States the
computer implemented website www.culvers.com, which has a computerized meal planning
interface at http://www.culvers.com/menu/nutrition_facts.aspx.
39.

Defendant Dairy Queen has been and now is directly infringing one or more

claims of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United
States the computer implemented website www.dairyqueen.com, which has a computerized meal
planning interface at http://www.dairyqueen.com/us-en/eats-and-treats/nutrition-calculator/.
40.

Defendant DineWise has been and now is directly infringing one or more claims

of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United States
the computer implemented website www.dinewise.com, which has a computerized meal
planning interface at http://www.dinewise.com/nutritional_mix_and_match_meals.php.
41.

Defendant Dunkin‟ Brands has been and now is directly infringing one or more

claims of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United
States the computer implemented website www.dunkindonuts.com, which has a computerized
meal planning interface at
http://www.dunkindonuts.com/content/dunkindonuts/en/menu/nutrition.html.
42.

Defendant El Pollo Loco has been and now is directly infringing one or more

claims of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

Page 10

States the computer implemented website www.elpolloloco.com, which has a computerized meal
planning interface at http://www.elpolloloco.com/nutrition.aspx.
43.

Defendant Food Network has been and now is directly infringing one or more

claims of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United
States the computer implemented website www.foodnetwork.com, which has a computerized
meal planning interface at
http://www.foodnetwork.com/search/delegate.do?fnMealType=dinner&fnIngredient=chicken&f
nTime=&fnChef=&fnSearchType=mealPlanner.
44.

Defendant Google has been and now is directly infringing one or more claims of

the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United States the
computer implemented website www.google.com, which has a computerized meal planning
interface at http://www.google.com/landing/recipes/.
45.

Defendant Hardee‟s has been and now is directly infringing one or more claims of

the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United States the
computer implemented website www.hardees.com, which has a computerized meal planning
interface at http://www.hardees.com/menu/alt-options.
46.

Defendant Jack in the Box has been and now is directly infringing one or more

claims of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United
States the computer implemented website www.jackinthebox.com, which has a computerized
meal planning interface at http://www.jackinthebox.com/nutrition/build-a-meal.php.
47.

Defendant Jimmy John‟s has been and now is directly infringing one or more

claims of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

Page 11

States the computer implemented website www.jimmyjohns.com, which has a computerized
meal planning interface at http://www.jimmyjohns.com/menu/nutrition.aspx.
48.

Defendant McDonald‟s has been and now is directly infringing one or more

claims of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United
States the computer implemented website www.mcdonalds.com, which has a computerized meal
planning interface at http://www.mcdonalds.com/us/en/food/full_menu/salads/premium_bacon
ranchsaladwithcrispychicken.html.
49.

Defendant Panda Express has been and now is directly infringing one or more

claims of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United
States the computer implemented website www.pandaexpress.com, which has a computerized
meal planning interface at http://www.pandaexpress.com/menu/menu-items_flash.aspx.
50.

Defendant Sonic has been and now is directly infringing one or more claims of

the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United States the
computer implemented website www.sonicdrivein.com, which has a computerized meal planning
interface at http://www.sonicdrivein.com/nutrition/.
51.

Defendant Subway has been and now is directly infringing one or more claims of

the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United States the
computer implemented website www.subway.com, which has a computerized meal planning
interface at http://www.subway.com/menu/MealBuilder/MealBuilder.aspx.
52.

Defendant Taco Bell has been and now is directly infringing one or more claims

of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United States
the computer implemented website www.tacobell.com, which has a computerized meal planning
interface at http://www.tacobell.com/nutrition/calculator.

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

Page 12

53.

Defendant TCBY has been and now is directly infringing one or more claims of

the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United States the
computer implemented website www.tcby.com, which has a computerized meal planning
interface at http://tcby.com/menu-nutrition/soft-serve/.
54.

Defendant Wawa has been and now is directly infringing one or more claims of

the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United States the
computer implemented website www.wawa.com, which has a computerized meal planning
interface at http://www.wawa.com/wawaweb/Nutrition/Default.aspx.
55.

Defendant Wegmans has been and now is directly infringing one or more claims

of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United States
the computer implemented website www.wegmans.com, which has a computerized meal
planning interface at
http://www.wegmans.com/webapp/wcs/stores/servlet/MealBuilderView?storeId=10052&catalog
Id=&langId=-1.
56.

Defendant Wendy‟s has been and now is directly infringing one or more claims of

the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United States the
computer implemented website www.wendys.com, which has a computerized meal planning
interface at http://www.wendys.com/food/Nutrition.jsp.
57.

Defendant Whole Foods has been and now is directly infringing one or more

claims of the „516 patent, in violation of 35 U.S.C. § 271, by making and/or using in the United
States the computer implemented website www.wholefoodsmarket.com, which has a
computerized meal planning interface at http://www.wholefoodsmarket.com/recipes/advancedsearch.php.

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

Page 13

58.

As a direct and proximate consequence of the acts and practices of the Defendants

in infringing, directly and/or indirectly, one or more claims of the „516 patent, DietGoal
Innovations has suffered, is suffering, and will continue to suffer injury and damages for which it
is entitled to relief under 35 U.S.C. § 284 in an amount to be determined at trial.
59.

The limitation of damages provision of 35 U.S.C. § 287(a) is not applicable to

DietGoal Innovations.
60.

This case presents exceptional circumstances within the meaning of 35 U.S.C.

§ 285 and DietGoal Innovations is thus entitled to an award of its reasonable attorneys‟ fees.
DEMAND FOR JURY TRIAL
61.

DietGoal Innovations, under Rule 38 of the Federal Rules of Civil Procedure,

requests a trial by jury of any issues so triable.
PRAYER FOR RELIEF
WHEREFORE, DietGoal Innovations requests entry of judgment that:
1.

Defendants have infringed the patent-in-suit;

2.

Defendants account for and pay to Plaintiff all damages caused by their respective

infringement of the patent-in-suit; and
3.

Plaintiff be granted pre-judgment and post-judgment interest on the damages

caused to it by reason of one or more of Defendants‟ patent infringement;
4.

The Court declare this an exceptional case and that Plaintiff be granted reasonable

attorneys‟ fees in accordance with 35 U.S.C. § 285;
5.

Costs be awarded to Plaintiff; and

6.

Plaintiff be granted such other and further relief as the Court may deem just and

proper under the circumstances.

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

Page 14

Dated: September 15, 2011

Respectfully submitted,
BUETHER JOE & CARPENTER, LLC

By:

/s/ Christopher M. Joe
Christopher M. Joe (Lead Counsel)
State Bar No. 00787770
[e-mail]
Eric W. Buether
State Bar No. 03316880
[e-mail]
Brian A. Carpenter
State Bar No. 03840600
[e-mail]
Niky Bukovcan
Washington State Bar No. 39403
[e-mail]
Mark D. Perantie
State Bar No. 24053647
[e-mail]
1700 Pacific Avenue
Suite 2390
Dallas, Texas 75201
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR PLAINTIFF
DIETGOAL INNOVATIONS LLC

PLAINTIFF‟S COMPLAINT FOR PATENT INFRINGEMENT

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