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Boiling Point v. Fong Ware - Complaint
Boiling Point v. Fong Ware - Complaint
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COMPLAINT FOR
INFRINGEMENT OF UNITED
STATES DESIGN PATENT NO.
D680811
13 v.
14 FONG WARE CO. LTD,
Defendant.
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Case No.
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19 BPG), for its complaint against Fong Ware Co. LTD, (Defendant) hereby
20 demands a jury trial and alleges as follows:
I. INTRODUCTION
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23 D680811 (the 811 Patent) under the patent laws of the United States, 35 U.S.C.
24 1 et seq. A true and correct copy of the 811 Patent is attached hereto as Exhibit
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II. JURISDICTION AND VENUE
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This Court has original subject matter jurisdiction over the design
28 patent infringement claim in this action pursuant to 35 U.S.C. 271 and 281 and
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1 28 U.S.C. 1331 and 1338 as these claims arise under the laws of the United
2 States.
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8 selling infringing hot pot apparatuses Model No. FW-1308 (Fong Ware
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17 existing under the laws of the State of California, having its principal place of
18 business at 13668 Valley Blvd. #C-2, City of Industry, CA 91746.
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20 Fong Ware Co. LTD is a suspended corporation organized and existing under the
21 laws of the State of California, having its principal place of business at 6849
22 Morehouse St., Chino, CA 91710.
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24 Defendant regularly conducts business in, and has committed the acts alleged herein
25 within this judicial district.
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28 Soup specialty restaurants, under the name Boiling Point, that started in Southern
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4 providing high quality food and innovative customer service. The Boiling Point
5 experience includes Plaintiffs patented apparatus for holding and heating a hot pot
6 (BPG Apparatus). The BPG Apparatus is a crucial component of Plaintiffs
7 operations and is placed at every seat in its restaurants.
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On April 30, 2013, the United States Patent and Trademark Office duly
9 and lawfully issued United States Design Patent No. D680,811 (the 811 Patent),
10 entitled Apparatus for Holding and Heating a Hot Pot, for the design embodied in
11 the BPG Apparatus. The 811 Patent names Chi How Chou as the inventor.
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Plaintiff is the owner by assignment of all right, title, and interest in the
13 811 Patent. There are no prior owners by assignment. A true and correct copy of
14 the 811 Patent Assignment Abstract of Title is attached hereto as Exhibit 2.
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The 811 Patent represents a substantial advance over the prior art.
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Defendant manufactures, uses, sells, offers for sale, and/or imports into
19 the United States, the Fong Ware Apparatus that infringes on the 811 Patent.
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Plaintiff has provided the public and the Defendant with notice of its
21 patent rights pursuant to 35 U.S.C. 287 and by marking the BPG Apparatus with
22 the 811 Patent. Furthermore Plaintiffs website prominently displays information
23 regarding the 811 Patent.
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(Patent Infringement)
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3 continues to, knowingly, intentionally, and willfully directly infringe the 811 Patent
4 by making, using, selling, offering for sale, and/or importing the Fong Ware
5 Apparatus having a design that would deceive an ordinary observer familiar with the
6 prior art into believing that it is the same as the design patented in the 811 Patent.
7 The infringing Fong Ware Apparatus, which was sold and/or offered for sale by the
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First, the 811 Patent features a square top with a raised rim, as shown
10 below. The design of a raised rim around the top perimeter of the generally square
11 body is a distinguishing feature. As shown below, the Defendants infringing Fong
8 Defendant, shares at least six distinguishing features with the 811 Patent.
12 Ware Apparatus incorporates this limitation of the 811 Patent because it includes
13 among other things, a square top with raised rim look into its design and therefore
14 infringes on the 811 Patent.
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2 frusto-conical bowl in the middle of a boxy frame. This was not disclosed in prior
3 art and is very unique in its ratio in relation to the boxy frame. Defendants
4 infringing Fong Ware Apparatus also includes a boxy frame with a frusto-conical
5 bowl, with a frame-to-bowl ratio very similar to that depicted in the 811 Patent. As
6 shown below, the Defendant Fong Wares Apparatus infringes on the 811 Patent
7 because it satisfies this limitation of the 811 Patent.
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Third, the 811 Patent has four equally-spaced upwardly extending and
2 protruding prongs along the top rim of the frusto-conical bowl, each with two
3 tentacles. The design feature of four such prongs was not disclosed in any prior
4 art. Defendants infringing Fong Ware Apparatus also contains four equally-spaced
5 and upwardly extending and protruding prongs along the top rim of the frusto6 conical bowl, each with two tentacles, as taught by the 811 Patent. As shown
7 below, the Defendant Fong Wares Apparatus infringes on the 811 Patent because
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Fourth, the 811 Patent has two opposing gaps around the top rim of the
2 frusto-conical bowl such that the complete circular perimeter is separated into two
3 half circles by these two gaps. This design is not in the prior art. As shown below,
4 the Defendants Fong Ware Apparatus clearly shows a frusto-conical bowl having a
5 circular perimeter separated into two half circles by two gaps. The Defendants
6 infringing Fong Ware Apparatus has clearly incorporated the two gap element
7 into its design and therefore infringes because it satisfies this limitation of the 811
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811 Patented Design
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2 bowl. Some of the prior art designs have concentric circles, but they are limited to
3 flat, planar, circular heating elements sitting within or on top of a boxy body. The
4 prior art has no design of a three-dimensional bowl comprised of concentric circular
5 frames. The Defendants infringing Fong Ware Apparatus has a frusto-conical bowl
6 which includes concentric circles and contains the general design concept of the
7 concentric circles as is taught in the 811 Patent. As shown below, the Defendant
9 limitation of the 811 Patent.
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811 Patented Design
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8 Fong Wares Apparatus infringes on the 811 Patent because it satisfies this
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Sixth, the 811 Patent has a boxy frame with side walls containing
2 horizontal windows located approximately half way down the wall. This is a
3 distinguishing feature from the prior art because none of the prior art has side
4 windows. The 811 Patents generally-horizontal window is approximately centered
5 halfway down the side wall, such that the vertical height of the window is
6 approximately one-third of the total vertical height of the Apparatus shown in the
7 811 Patented Design. As shown below, the Defendant Fong Wares Apparatus
9 approximately centered halfway down the side wall, such that the vertical height of
10 the window is approximately one-third of the total vertical height of the Apparatus.
11 Defendants infringing Fong Ware Apparatus therefore infringes the 811 Patent
8 infringes on the 811 Patent because it also contains a generally horizontal window,
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14 Defendant has derived and received gains, profits, and advantages in an amount that
15 is not presently known to Plaintiff.
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17 Defendants infringing acts and treble damages together with interests and costs as
18 fixed by this Court.
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Due to the aforesaid infringing acts, Plaintiff has suffered great and
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26 patent rights to the great and irreparable injury of Plaintiff, unless enjoined by this
27 Court.
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7 respective officers, directors, agents, servants, employees, and attorneys, and those
9 infringing the 811 Patent in violation of 35 U.S.C. 271;
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That Defendant accounts for all gains, profits, and advantages derived
12 that Defendant pays to Boiling Point Group, Inc., all damages suffered by Plaintiff
13 and/or Defendants total profit from such infringement pursuant to 35 U.S.C. 289;
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17 the exceptional nature of this case resulting from Defendants deliberate infringing
18 actions, this Court award to Boiling Point Group, Inc. all reasonable attorneys fees,
19 costs, and disbursements incurred as a result of this action, pursuant to 35 U.S.C.
20 285;
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Such other and further relief as this Court may deem just and proper.
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DEMAND FOR JURY TRIAL
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In accordance with Local Rule 38-1, Plaintiff Boiling Point Group, Inc.
Respectfully submitted,
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