Gallagher Et. Al. v. Funeral Source One Supply and Equipment Et. Al

8/12/2019 Gallagher Et. Al. v. Funeral Source One Supply and Equipment Et. Al.

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UNITED STATES DISTRICT C OURT FORTHE DISTRICT OF NEW HAMPSHIRE

Robert P. Gallagher andInstrument Design M fg. Co., LLC

Plaintiff

v.

Funeral Source One Supply andEquipment Co., Inc.andAffordable Funeral Supply, LLC

Defendants

Case No.

COMPLAINT AND PETITIONFO R PRELIMINARY ANDPERMANENT INJUNCTIVERELIEF

I INTRODUCTION

1. This action is commenced pursuant to 35 U.S.C. 271 et seq. through which

Plaintiff Robe rt P. G allagher ( Plaintiff') seeks recourse for infringemen t of his

patent under Federal, state, and common law.

2. Plaintiffs' claims arise out of Defendants' offers to sell and sales of infringing

products.

3. In order to seek redress for infringem ent of his patent, Plaintiff has filed this

action to enjoin the continued violation of its rights.

H PARTIES

4. Plaintiff R obert P. Gallagher is an individual residing at 15 Galloway Lan e,

Bedford, NH 03110.

C o m p l a i n t - 1


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23. Two of the counterfeit injector needle drivers were acquired by Plaintiffs

from Keller M ortuary Services in Lapel, Indiana when sent in to Plaintiffs

for repair.

24. AFS had listed the counterfeit product for sale on eCRATER.com, but the

listing was remo ved pur suan t to Plaintiffs' request.

25. Upon information and belief, AFS may also be operating as Buy All

Supply , selling counterfeit injector needle drivers on Amazon.com.

xhibits

COUNT I PATENT INFRINGEMENT

26. W herein Plaintiffs hereby ado pt and incorporate by reference the

paragraphs set forth above and those set forth below.

27. Plaintiff R obert P. Gallagher is the inventor of the Injector N eedle Driver

protected by the '174 Patent.

28. Plaintiffs have placed the required statutory marking and notice on all

products made and sold under the 174 Patent.

29. Plaintiffs' Injector Need le Driver bears the engraving Injector Needle M fg.

Co., New Ham pshire, Patented.

30. In addition, Plaintiffs' Injector Needle Drivers have a serial number

engraved on the bottom of the grip.

31. De fend ants' coun terfeit devices are substantially similar to the patented

design, therefo re an ordinary observer wo uld be deceived into thinking

Defendants' devices are the same as the patented design.

Complaint 4


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32. De fenda nts have infringed Plaintiffs rights by selling and offering to sell

Plaintiffs Injector Needle Driver without authorization from P laintiff in

violation of 35 U.S.C. 27 1.

33. Defendants have infringed P laintiffs rights b y selling, offering to sell, using,

and importing cou nterfeit injector needle drivers in this state and elsewhere

in the United States in violation of 5 U.S.C. 271.

34. Defendants have co ntinued to sell and offer fo r sale injector needle drivers

within the sco pe of the 174 patent after Plaintiffs asked them to stop.

35. The acts of infringement by Defendants have been intentional and willful.

36 . Plaintiffs are entitled to damages as a result of Defend ants infringement, as

provided by law.

37 . All to the damage of P laintiffs, including exemplary and compensatory

damages, within the jurisdictional limits of this Co urt.

COUNT H; VIOLATION OF THE CONSUMER PROTECTION

ACT/UNFAIR AND DECEPTIVE TRADE PRACTICES

38. Wherein Plaintiffs hereby adopt and incorporate by reference the

paragraphs se t forth above an d those set forth below.

39. The Consumer Protection Act, NH RSA 358-A:2, prohibits unfair or

deceptive acts in the conduct of any trade or com merce. A person engaging

in deceptive or misleading acts while conducting his business falls within the

scope of the statute. RSA 358-A:l, II.

40. Defendants have attempted to pass off goods and services of Plaintiffs as

their o wn in violation of RSA 358-A:2,1.

Complaint 5


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41. Defendants unfair and deceptive business practices were willful and

knowing violations of the statute entitling Plaintiffs to multiple damages

plus attorney fees.

42. All to the dam age of Plaintiffs, including exemplary and compensatory

damages and statutory m ultiple dam ages plus attorney fees, within the

jurisdictional limits of this Court.

COUNT m UNJUST ENRICHMENT



44. Defendants have benefitted from the offering for sale, sale, use, and

importation of products within the scope of the 174 Patent.

45. Defendants have not paid Plaintiffs for a license of the 174 Patent.

46. Defendants have no t paid their profits to P laintiffs.

47. D efendants have been u njustly enriched by selling injector needle drivers for

a profit without consideration to P laintiffs.

48. All to the damage of Plaintiffs, including exemplary and compensatory

damages, within the jurisdic tional limits of this Co urt.

COUNT IV PRELIMIN RY AND PERM NENT INJUNCTION



50. Plaintiffs have suffered irreparable harm as a result of Defenda nts patent

infringement, unfair and deceptive trade practices, an d un just enrichment.

Complaint 6


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51. Defendan ts misconduct, if not enjoined, will continue to cause immediate

and irreparable harm to P laintiffs for which P laintiffs have no adequate

remedy at law.

PR YERS FOR RELIEF

WHEREF OR E, Plaintiffs respectfully pray for a judgment against Defendants as

follows:

A. That U.S. Design Patent No. D460 174 is valid and enforceable;

B. That Defendants have infringed U.S. Design P atent N o. D 460,174 and

that such infringement w as willful;

C. An award of damages to P laintiffs against Defenda nts for infringem ent

of U.S. Design Patent No. D460 174 under 35 U.S.C 284 or 289;

D. In the event P laintiffs elect to recover damages under 3 5 U.S.C. 284,

an increase of the sums awarded to Plaintiffs to three times the actual

damages, pursuant to 3 5 U.S.C. 284;

E. That Defendants be permanently enjoined from infringing U.S. Design

Patent No. D460,174;

F. That this case be deemed as exceptional under 35 U.S.C. 285 due to

the intentional and willful nature of Defendants infringement, and an

award to P laintiffs of attorney fees under 35 U.S.C . 285;

G. An award of prejudgment and post judgm ent interest and costs of suit

to P laintiffs; and

H. Such other and further relief as the C ourt deems property and just.

Complaint 7


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EM N FO R JURY TRI L

Pursuant to Rule 38(b) o f the Federal Rules of C ivil Procedure, Plaintiffs

demand a trial by jury on all issues triable by jury.

Respectfully submitted,Robert P. GallagherInstrument Design & M fg. Co.By their attorneys,MESMER DELEAULT, PLLC

Date: March j : j . 2014 /s/ Frank B. Mesmer, Jr., Esq.Frank B . Mesmer, Jr., Esq.41 Brook StreetManchester, N H [email protected] ar No. 1743

I hereby certify that I have read the paragrap hs contained within the foregoingCom plaint and Petition for Preliminary and P erma nent Injunctive Relief and that thefactual allegations app earing therein are true/to'jfene best of my knowledge and belief.

Date: t?-/9-Robert P. Gallagher

STATE OF NEW HAMPSHIRECOUNTY OF HILLSBOROUGH

Personally appeared the above-named Robert P . G allagher, who took oathand acknowledged the foregoing statements to be true to the best o f his knowledgeand belief.

Dated:Public/ Justice o

Complaint 8


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USOOD460174S

1 2United States Design Patent u .) P a t e n t N O . : us D460,174 sGallagher 45) Date of Patent: ** Jul . 9 2002

54) INJECTO R N K E D L E DRIVER

(76) I nven to r : Robert P. Gallagher, 15 Gal loway La.,B e d f o r d , NH (US) 03110

(**) Term: 14 Years

(21) Appl. No. : 29/129,597

(22) Filed: Sep. 18, 2000

(51) LOG 7) Cl 24-02 52) U.S. Cl D24/113(58) Field of Search 024/113,112,

1)24/133; 604/203, 227 , 211, 207 , 208,93, 92, 187; 222/79

56) Refere nces Cited

U.S . PATENT DO CUM ENTS

3,141,583 A * 7 .1 4 Mapel et al D24/1134 ,472 ,141 A * 9/1984 Dragan 604/232D319,697 S * 9,1991 Pr indle et al D24/1135,052,243 A * 10/1991 Tcpic 606 /92

5,408,919 A * 4/1995 Hu tz le r et al 222/79D383.839 S * 9/1997 Sullivan D 2 4 / 11 3

* cited by examine r

Primary ExaminerIan Simmons(74) Attorney Agent or FirmSamuels , ( i au th i e r &Stevens

(57) CLAIM

The o rnamen ta l design for an injector needle dr iver, asshown and described.

DESCRIPTION

FIG. 1 is a perspective view of an in jector need le dr iver ;FIG. 2 is a top view of FIG. 1;FIG. 3 is a left side view of FIG. 1 , the r ight side v iew beinga m irror image thereof;FIG. 4 is a f ront view of FIG. 1;FIG. 5 is a left side view of FIG. 1;FIG. 6 is an end view of FIG. 1; and,

FIG. 7 is a top view of FIG. 1.

1 Claim, 2 Drawing Sheets


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U atent Jul. 9 2002 Sheet 1 of 2 US 0460 174 S

0


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U atent Jul. 9 2002 Sheet 2 of 2 US D460 174 S

F J


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Gallagher Et. Al. v. Funeral Source One Supply and Equipment Et. Al