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Eko Brands, LLC v. Adrian Rivera Maynez Enterprises Inc.

United States District Court, W.D. Washington

May 30, 2018

EKO BRANDS, LLC, Plaintiff,
v.
ADRIAN RIVERA MAYNEZ ENTERPRISES, INC.; and ADRIAN RIVERA, Defendants.

          RESPECTIVELY SUBMITTED DAVID A. LOWE TIMOTHY BILLICK JONES PLLC Attorneys for Plaintiff.

          SUDIP KUNDU MATTHEW CUNNINGHAM KUNDU PLLC Attorneys for Defendants.

          PROPOSED PRETRIAL ORDER

          James P. Donohue United States Magistrate Judge.

         Honorable James P. Donohue Pursuant to Local Civil Rule ("LCR") 16(h) and this Court's scheduling order (Dkt. 185), Plaintiff Eko Brands, LLC ("Eko") and Defendants Adrian Rivera Maynez Enterprises, Inc. and Adrian Rivera (collectively "ARM") respectively submit their Joint Pretrial Statement.

         I. JURISDICTION

         This court has subject matter jurisdiction over this dispute pursuant to 28 U.S.C. §§ 1331 (Federal Question), 1338(a) (Patent) and § 2201 (Declaratory Judgments). The Court also has subject matter jurisdiction over this dispute pursuant to 28 U.S.C. § 1332 as there is diversity of citizenship and the amount in controversy exceeds $75, 000, exclusive of costs.

         II. CLAIMS AND DEFENSES

         1. Eko seeks a determination that a number of products sold by ARM directly infringe claim 8 of U.S. Patent No. 8, 707, 855 ("the 855 patent") under 35 U.S.C. § 271(a), specifically the following ARM products: ECO-FILL DELUXE 2.0 (or ECO-FILL 2.0); ECO-FILL DELUXE (or ECO-FILL 2 PACK DELUXE), which was sold by ARM in packs of 2; and ECO-FLOW (Original) "vl" and ECO-FLOW (New) "v2" ("Accused Products"). As used herein, original claim 9 and amended claim 8 of the 855 patent are understood as being the same claim and are jointly referred to as "Amended claim 8." For purposes of this trial, the parties have stipulated that ARM's Accused Products directly infringe Amended claim 8. (See Dkt. 208 (Stipulation)).

         2. This matter also includes a claim for declaratory judgment of patent invalidity arising under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, et seq. and under the Patent Laws of the United States, 35 U.S.C § 1 et seq. Eko seeks a declaratory judgment that claims 8 and 19 of ARM's U.S. Patent No. 8, 720, 320 ("the 320 patent") patent are invalid as obvious under 35 U.S.C. §103.

         3. Eko seeks an award of damages adequate to compensate it for the infringement that has occurred, but in no event less than a reasonable royalty for the use made of the invention by ARM, together with the prejudgment interest from the date infringement of the 855 patent issued.

         4. Eko seeks increased damages as permitted under 35 U.S.C. § 284.

         5. Eko seeks a finding that this case is exceptional and a further award of its attorney's fees and costs as provided in 35 U.S.C. § 285.

         6. Eko seeks a permanent injunction prohibiting ARM's further infringement of the 855 patent as provided in 35 U.S.C. § 283.

         7. Eko seeks a determination that ARM's infringement of the 855 patent has been willful.

         8. As an affirmative defense, ARM seeks a determination that its Accused Products do not directly infringe Amended claim 8 of 855 patent.

         9. ARM disputes the reasonable royalty and the amount of damages including increased damages that Eko seeks under 35 U.S.C. § 284.

         10. ARM denies that this case is exceptional and denies that Eko is entitled to attorney's fees and costs under 35 U.S.C. § 285.

         11. ARM denies that Eko can establish that any direct infringement by ARM has been willful.

         12. ARM denies that Eko can satisfy the requirements applicable to its request for injunctive relief.

         13. ARM denies that Eko can satisfy the requirements for obtaining damages under 35 U.S.C. § 287.

         14. ARM denies that Eko can establish liability for direct infringement against Mr. Rivera.

         III. ADMITTED FACTS

         1. Provisional patent application U.S. App. No. 61/484, 150 was filed on May 9, 2011.

         2. U.S. App. No. 13/467, 792 was filed on May 9, 2012, claiming priority to U.S. App. No. 61/484, 150. This application later issued as U.S. Patent No. 8, 707, 855 on April 29, 2014, and lists Mr. Ronald DeMiglio as the first-named inventor.

         3. Eko is the owner of the 855 patent.

         4. U.S. Patent Application No. 11/777, 831, which led to the 320 patent was filed on July 13, 2007.

         5. U.S. Patent No. 8, 720, 320 issued on May 13, 2014 and names Mr. Adrian Rivera as the inventor.

         6. Mr. Rivera is the owner of the 320 patent.

         7. The Accused Products are designed to be used in single-serve brewing machines such as Keurig machines.

         8. On April 19, 2016 ARM filed for ex parte reexamination of original claims 8, 9, 12, and 13 of the 855 patent in an effort to invalidate those claims based on ARM's U.S. Patent No. 8, 720, 320 and U.S. Patent Application No. 2013/0017303.

         9. At the conclusion of the reexamination, claim 8 was amended to incorporate the content of claim 9 in order to be deemed patentable over ARM's 320 ...


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