Brandeis University et al v. East Side Ovens, Inc. et al
Filing
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COMPLAINT FOR PATENT INFRINGEMENT against Bremner Food Group, Inc., Conopco, Inc., Cookie Specialties, Inc., East Side Ovens, Inc., Famous Amos Chocolate Chip Cookie Company, LLC, Keebler Co., Murray Biscuit Co. LLC, Nestle USA, Inc., The Pillsbury Company, LLC, Topco Associates LLC, Unilever United States, Inc., Voortman Cookies Ltd., Wessanen U.S.A., Inc. (Filing Fee $350, receipt number 0758-832821) filed by GFA Brands, Inc. and Brandeis University. (Attachments: # 1 Exhibit A - US Patent No. 5,843,497, # 2 Exhibit B - US Patent No. 6,630,192, # 3 JS-44 Civil Cover Sheet, # 4 Report on Filing Patent/Trademark Action, # 5 Summons - Bremner Food Group, Inc., # 6 Summons - Conopco, Inc., # 7 Summons - Cookie Company, LLC, # 8 Summons - East Side Ovens, Inc., # 9 Summons - Famous Amos Chocalate Chip Cookie Company, Inc., # 10 Summons - Keebler Co., # 11 Summons - Murray Biscuit Co., LLC, # 12 Summons - Nestle USA, Inc., # 13 Summons - Pillsbury Company LLC, # 14 Summons - Topco Associates LLC, # 15 Summons - Unilever United States, Inc., # 16 Summons - Wessanen U.S.A., Inc.) (Tomaselli, Anthony)
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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN
BRANDEIS UNIVERSITY and
GFA BRANDS, INC.,
Plaintiffs,
v.
EAST SIDE OVENS, INC.;
KEEBLER CO.;
FAMOUS AMOS CHOCOLATE CHIP
COOKIE COMPANY, LLC;
MURRAY BISCUIT CO. LLC;
VOORTMAN COOKIES LTD.;
BREMNER FOOD GROUP, INC.;
WESSANEN U.S.A., INC.;
COOKIE SPECIALTIES, INC.;
TOPCO ASSOCIATES LLC;
THE PILLSBURY COMPANY, LLC;
UNILEVER UNITED STATES, INC;
CONOPCO, INC.; and
NESTLÉ USA, INC.,
Defendants.
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Civil Action No.: 11-cv-619
TRIAL BY JURY DEMANDED
COMPLAINT FOR PATENT INFRINGEMENT
Brandeis University and GFA Brands, Inc. (“Plaintiffs”), by their attorneys, Quarles &
Brady LLP, for their complaint against East Side Ovens, Inc., Keebler Co., Famous Amos
Chocolate Chip Cookie Company, LLC, Murray Biscuit Co. LLC, Voortman Cookies Ltd.,
Bremner Food Group, Inc., Wessanen U.S.A., Inc., Cookie Specialties, Inc., Topco Associates
LLC, The Pillsbury Company, LLC, Unilever United States, Inc., Conopco, Inc., and Nestlé
USA, Inc. (collectively “Defendants”), hereby allege as follows:
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THE PARTIES
1.
Plaintiff Brandeis University (“Brandeis”) is a University established in the
Commonwealth of Massachusetts with its principal place of business at 415 South Street,
Waltham, MA 02453.
2.
Plaintiff GFA Brands, Inc. (“GFA Brands”) is a Delaware corporation with its
principal place of business at 115 West Century Road, Suite 260, Paramus, NJ 07652.
3.
On information and belief, Defendant East Side Ovens, Inc. (“East Side Ovens”)
is a Wisconsin corporation with its principal place of business at 2899 South Kinnickinnic
Avenue, Milwaukee, WI 53207.
4.
On information and belief, Defendant Keebler Co. (“Keebler”) is a Delaware
corporation with its principal place of business at 633 Larch Avenue, Elmhurst, IL 60126.
5.
On information and belief, Defendant Famous Amos Chocolate Chip Cookie
Company, LLC (“Famous Amos”) is a Delaware limited liability company with its principal
place of business at 1 Kellogg Square, Battle Creek, MI 49016.
6.
On information and belief, Defendant Murray Biscuit Co. LLC (“Murray”) is a
Delaware limited liability company with its principal place of business at 1550 Marvin Griffin
Road, Atlanta, GA 30906.
7.
On information and belief, Defendant Voortman Cookies Ltd. (“Voortman”) is a
corporation organized and existing under the laws of Canada with its principal place of business
at 4475 North Service Road, Burlington, ON L7L4X7.
8.
On information and belief, Defendant Bremner Food Group, Inc. (“Bremner”) is a
Nevada corporation with its principal place of business at 800 Market Street, St. Louis, MO
63101.
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9.
On information and belief, Defendant Wessanen U.S.A., Inc. (“Wessanen”) is a
Delaware corporation with its principal place of business at One Daily Way, Verona, PA 15147.
10.
On information and belief, Defendant Cookie Specialties, Inc. (“Cookie
Specialties”) is an Illinois corporation with its principal place of business at 482 Milwaukee
Avenue, Wheeling, IL 60090.
11.
On information and belief, Defendant Topco Associates, LLC (“Topco”) is a
Delaware limited liability company with its principal place of business at 7711 Gross Point
Road, Skokie, IL 60077.
12.
On information and belief, Defendant The Pillsbury Company, LLC (“Pillsbury”)
is a Delaware limited liability company with its principal place of business at Number One
General Mills Boulevard, Minneapolis, MN 55426.
13.
On information and belief, Defendant Unilever United States, Inc. (“Unilever”) is
a Delaware corporation with its principal place of business at 700 Sylvan Avenue, Englewood
Cliffs, NJ 07632.
14.
On information and belief, Defendant Conopco, Inc. (“Conopco”) is a New York
corporation with its principal place of business at 700 Sylvan Avenue, Englewood Cliffs, NJ
07632.
15.
On information and belief, Defendant Nestlé USA, Inc. (“Nestlé”) is a Delaware
corporation with its principal place of business at 800 North Brand Boulevard, Glendale, CA
91203.
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JURISDICTION
16.
This is an action for patent infringement arising under the patent laws of the
United States, 35 U.S.C. § 1, et seq. This Court has subject matter jurisdiction under 28 U.S.C.
§§ 1331 and 1338(a).
17.
This Court has personal jurisdiction over Defendants because Defendants conduct
substantial business in the State of Wisconsin and within the Western District of Wisconsin.
Defendants make, import, sell, offer to sell, and/or induce the sale of various infringing products,
directly or through intermediaries, in or into Wisconsin and this judicial District, thereby causing
injury and damages in Wisconsin and this judicial District which may result from acts committed
outside Wisconsin or the District, including but not limited to utilizing their own established
distribution channels or distribution channels of an intermediary to market and sell infringing
products in Wisconsin and this District. In conducting their business in Wisconsin and this
judicial District, Defendants derive substantial revenue from infringing products being sold, used
or consumed in Wisconsin and this District, and will continue to do so unless enjoined by this
Court.
18.
Venue in this District is proper under 28 U.S.C. §§ 1391 and 1400(b) because, on
information and belief, the accused acts of direct infringement occur in this District, as
Defendants make or import infringing products in or into this District, and/or sell, offer to sell
and/or induce the sale of infringing products to customers in this District.
FACTS GIVING RISE TO THIS ACTION
19.
Paragraphs 1 - 18 are incorporated by reference as if set forth here in full.
20.
United States Patent No. 5,843,497 (“the ‘497 Patent”), entitled “Increasing the
HDL Level in the HDL/LDL Ratio in Human Serum by Balancing Saturated and
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Polyunsaturated Dietary Fatty Acids,” properly issued on December 1, 1998. A true and correct
copy of the ‘497 Patent is attached as Exhibit A hereto.
21.
Legal title to the ‘497 Patent is held by Brandeis. Brandeis has made significant
investment in researching and developing the ‘497 Patent.
22.
Brandeis granted a worldwide, sole and exclusive license under the ‘497 Patent,
with the right to sublicense, to GFA Brands. This license grants GFA Brands the right to sue for
infringement of the ‘497 Patent.
23.
United States Patent No. 6,630,192 (“the ‘192 Patent”), entitled “Increasing the
HDL Level in the HDL/LDL Ratio in Human Serum by Balancing Saturated and
Polyunsaturated Dietary Fatty Acids,” properly issued on October 7, 2003 with a, Ex Parte
Reexamination Certificate issued September 19, 2006. A true and correct copy of the ‘192
Patent is attached as Exhibit B hereto. The ‘192 Patent is in the same patent family as the ‘497
Patent.
24.
Legal title to the ‘192 Patent is held by Brandeis. Brandeis has made significant
investment in researching and developing the ‘192 Patent.
25.
Brandeis granted a worldwide, sole and exclusive license of the ‘192 Patent, with
the right to sublicense, to GFA Brands. This license grants GFA Brands the right to sue for
infringement of the ‘192 Patent.
26.
The claimed inventions in the ‘497 and ‘192 Patents (collectively, the “Patents-in-
Suit”) are directed to fats and fat blends that decrease low-density lipoprotein cholesterol (LDL)
and increase high-density lipoprotein cholesterol (HDL) in the human serum. This adjustment of
the LDL/HDL ratio by the claimed inventions in the Patents-in-Suit results in significant health
benefits.
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27.
Since GFA Brands acquired sole exclusive licenses under the ‘497 and ‘192
Patents, GFA Brands has made significant investment in researching, developing, and marketing
products that embody the inventions of the ‘497 and ‘192 Patents.
28.
On information and belief, one or more Defendants make, use, sell, offer to sell,
import, have made, used, sold, offered to sell and/or imported products that infringe or have
infringed the ‘497 and/or ‘192 Patents.
29.
On information and belief, one or more Defendants buy products that infringe the
Patents-in-Suit from common sources and use these infringing products in the manufacture of
their products. All of these infringing acts severely undermine Plaintiffs’ significant investment
in the inventions of the Patents-in-Suit, all to Plaintiffs’ detriment.
30.
As a result, Plaintiffs bring this action to seek damages and injunctive relief
arising out of Defendants’ infringing acts.
COUNT I
Infringement of U.S. Patent No. 5,843,497
31.
Paragraphs 1 - 30 are incorporated by reference as if set forth here in full.
32.
On information and belief, East Side Ovens’ manufacture, use, sale, offer for sale
and/or importation into the United States of certain cookies and products used in making such
cookies, including, but not limited to, cookies sold as East Side Ovens Cranberry Orange
Cookies, constitutes infringement of at least Claim 7 of the ‘497 Patent, either directly or
indirectly, literally or under the doctrine of equivalents.
33.
On information and belief, Keebler’s manufacture, use, sale, offer for sale and/or
importation into the United States of certain cookies and products used in making such cookies,
including, but not limited to, cookies sold as Chips Deluxe Chocolate Lovers Cookies, Chips
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Deluxe Oatmeal Chocolate Chip Cookies, and Chips Deluxe Rainbow Cookies, constitutes
infringement of at least Claim 7 of the ‘497 Patent, either directly or indirectly, literally or under
the doctrine of equivalents.
34.
On information and belief, Famous Amos’ manufacture, use, sale, offer for sale
and/or importation into the United States of certain cookies and products used in making such
cookies, including, but not limited to, cookies sold as Bite Size Chocolate Chip & Pecans
Cookies and Chocolate Chip Cookies, constitutes infringement of at least Claim 7 of the ‘497
Patent, either directly or indirectly, literally or under the doctrine of equivalents.
35.
On information and belief, Murray’s manufacture, use, sale, offer for sale and/or
importation into the United States of certain cookies and products used in making such cookies,
including, but not limited to, cookies sold as Murray Sugar Free Chocolate Chip Cookies,
constitutes infringement of at least Claim 7 of the ‘497 Patent, either directly or indirectly,
literally or under the doctrine of equivalents.
36.
On information and belief, Voortman’s manufacture, use, sale, offer for sale
and/or importation into the United States of certain cookies and products used in making such
cookies, including, but not limited to, cookies sold as Fudge Striped Oatmeal Cookies,
constitutes infringement of at least Claim 7 of the ‘497 Patent, either directly or indirectly,
literally or under the doctrine of equivalents.
37.
On information and belief, Bremner’s manufacture, use, sale, offer for sale and/or
importation into the United States of certain cookies and products used in making such cookies,
including, but not limited to, cookies sold as Rippin’ Good® Vanilla Wafers and Rippin’ Good®
Animal Cookies, constitutes infringement of at least Claim 7 of the ‘497 Patent, either directly or
indirectly, literally or under the doctrine of equivalents.
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38.
On information and belief, Wessanen’s manufacture, use, sale, offer for sale
and/or importation into the United States of certain crackers and products used in making such
crackers, including, but not limited to, crackers sold as Baker’s Row Mini Oyster Crackers,
constitutes infringement of at least Claim 7 of the ‘497 Patent, either directly or indirectly,
literally or under the doctrine of equivalents.
39.
On information and belief, Cookie Specialties’ manufacture, use, sale, offer for
sale and/or importation into the United States of certain cookies and products used in making
such cookies, including, but not limited to, cookies sold as Matt’s® Oatmeal Raisin Cookies,
constitutes infringement of at least Claim 7 of the ‘497 Patent, either directly or indirectly,
literally or under the doctrine of equivalents.
40.
On information and belief, Topco’s manufacture, use, sale, offer for sale and/or
importation into the United States of certain cookies and products used in making such cookies,
including, but not limited to, cookies sold as ShurFine® Vanilla Wafers and ShurFine® Animal
Crackers, constitutes infringement of at least Claim 7 of the ‘497 Patent, either directly or
indirectly, literally or under the doctrine of equivalents.
41.
On information and belief, Pillsbury’s manufacture, use, sale, offer for sale and/or
importation into the United States of certain dough products and products used in making such
dough products, including, but not limited to, dough products sold as Grands Flaky Layers
Reduced Fat Biscuits and Reduced Fat Crescent Rolls, constitutes infringement of at least Claim
7 of the ‘497 Patent, either directly or indirectly, literally or under the doctrine of equivalents
42.
On information and belief, Nestlé’s manufacture, use, sale, offer for sale and/or
importation into the United States of certain cookies, cookie doughs, and products used in
making such cookies and doughs, including, but not limited to, cookie dough sold as Tollhouse
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Chocolate Chip Cookie Dough, constitutes infringement of at least Claim 7 of the ‘497 Patent,
either directly or indirectly, literally or under the doctrine of equivalents
43.
Plaintiffs complied with 35 U.S.C. § 287 by providing the defendants identified
above with actual and/or constructive notice of their infringement.
44.
The infringing activities described above violate one or more subsections of 35
U.S.C. § 271.
45.
If the activities by the defendants identified above are not enjoined, Plaintiffs will
suffer irreparable harm that cannot be adequately compensated by a monetary award.
46.
Plaintiffs have suffered economic harm as a result of the infringing activities
described above in an amount to be proven at trial.
COUNT II
Infringement of U.S. Patent No. 6,630,192
47.
Paragraphs 1 - 30 are incorporated by reference as if set forth here in full.
48.
On information and belief, Unilever’s and Conopco’s manufacture, use, sale, offer
for sale and/or importation into the United States of certain products, including, but not limited
to, spreads sold as Promise Buttery Spread, constitutes infringement of at least Claim 1 of the
‘192 Patent, either directly or indirectly, literally or under the doctrine of equivalents.
49.
On information and belief, Keebler’s manufacture, use, sale, offer for sale and/or
importation into the United States of certain cookies and products used in making such cookies,
including, but not limited to, cookies sold as Vanilla Wafers and Mini Vanilla Wafers,
constitutes infringement of at least Claims 1 and 46 of the ‘192 Patent, either directly or
indirectly, literally or under the doctrine of equivalents.
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50.
On information and belief, Bremner’s manufacture, use, sale, offer for sale and/or
importation into the United States of certain cookies and products used in making such cookies,
including, but not limited to, cookies sold as Rippin’ Good® Vanilla Wafers, constitutes
infringement of at least Claims 1 and 46 of the ‘192 Patent, either directly or indirectly, literally
or under the doctrine of equivalents.
51.
Plaintiffs complied with 35 U.S.C. § 287 by providing Unilever, Conopco,
Keebler and Bremner with actual and/or constructive notice of their infringement.
52.
Unilever’s, Conopco’s, Keebler’s and Bremner’s activities violate one or more
subsections of 35 U.S.C. § 271.
53.
If Unilever’s, Conopco’s, Keebler’s and Bremner’s infringing activities are not
enjoined, Plaintiffs will suffer irreparable harm that cannot be adequately compensated by a
monetary award.
54.
Plaintiffs have suffered economic harm as a result of Unilever’s, Conopco’s,
Keebler’s and Bremner’s infringing activities in an amount to be proven at trial.
PRAYER FOR RELIEF
WHEREFORE Plaintiffs seek the following relief from this Court:
1.
A judgment that East Side Ovens, Keebler, Famous Amos, Murray, Voortman,
Bremner, Wessanen, Cookie Specialties, Topco, Pillsbury and Nestlé have infringed and are
infringing the ‘497 Patent;
2.
A judgment that Unilever, Conopco, Keebler and Bremner have infringed and are
infringing the ‘192 Patent;
3.
A judgment that East Side Ovens’, Keebler’s, Famous Amos’, Murray’s,
Voortman’s, Bremner’s, Wessanen’s, Cookie Specialties’, Topco’s, Pillsbury’s and Nestlé’s
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infringement of the ‘497 Patent has been willful;
4.
A judgment that Unilever’s, Conopco’s, Keebler’s and Bremner’s infringement of
the ‘192 Patent has been willful;
5.
A preliminary and permanent injunction issued pursuant to 35 U.S.C. § 283,
restraining and enjoining East Side Ovens, Keebler, Famous Amos, Murray, Voortman,
Bremner, Wessanen, Cookie Specialties, Topco, Pillsbury and Nestlé and their officers, agents,
attorneys and employees, and those acting in privity or concert with them, from infringement of
the ‘497 Patent for the full term thereof and from inducing infringement of the ‘497 Patent;
6.
A preliminary and permanent injunction issued pursuant to 35 U.S.C. § 283,
restraining and enjoining Unilever, Conopco, Keebler and Bremner and their officers, agents,
attorneys and employees, and those acting in privity or concert with them, from infringement of
the ‘192 Patent for the full term thereof and from inducing infringement of the ‘192 Patent;
7.
An award of damages to Plaintiffs including pre-judgment and post-judgment
interest, in an amount adequate to compensate for East Side Ovens’, Keebler’s, Famous Amos’,
Murray’s, Voortman’s, Bremner’s, Wessanen’s, Cookie Specialties’, Topco’s, Pillsbury’s and
Nestlé’s infringement of the ‘497 Patent, and that the damages be trebled pursuant to 35 U.S.C. §
284;
8.
An award of damages to Plaintiffs including pre-judgment and post-judgment
interest, in an amount adequate to compensate for Unilever’s, Conopco’s, Keebler’s and
Bremner’s infringement of the ‘192 Patent, and that the damages be trebled pursuant to 35
U.S.C. § 284;
9.
Costs and expenses in this action;
10.
A declaration that this is an exceptional case and an award of attorneys’ fees,
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disbursements, and costs of this action pursuant to 35 U.S.C. § 285; and
11.
Such other and further relief as the Court may deem just and proper.
JURY DEMAND
Plaintiffs demand a trial by jury on all issues properly tried to a jury.
Dated this 7th day of September, 2011.
/s/ Anthony A. Tomaselli
Anthony A. Tomaselli
aat@quarles.com
Kristin Graham Noel
kgn@quarles.com
Martha Jahn Snyder
martha.snyder@quarles.com
Stephen J. Gardner
stephen.gardner@quarles.com
QUARLES & BRADY LLP
33 East Main Street, Suite 900
Madison, Wisconsin 53703-3095
Tel.: 608.251.5000
Fax: 608.251.9166
Attorneys for Plaintiffs
Brandeis University and GFA Brands, Inc.
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