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Gary L. Eastman, Esq. (CSB #182518) Gary L. Eastman, APLC 401 West A Street, Suite 1785 San Diego, CA 92101 Attorney for Plaintiffs, TIMOTHY P. CURNUTT and DISTINCTIVE PLASTICS, INC.

UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

COMPLAINT FOR CORRECTION OF INVENTORSHIP UNDER 35 U.S.C. 256
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TIMOTHY P. CURNUTT, an Individual and DISTINCTIVE PLASTICS, INC., a California Corporation, Plaintiffs, vs. KIP CARTER, an Individual, Defendant.

Case No.:

'13CV0232 LAB KSC

COMPLAINT FOR CORRECTION OF INVENTORSHIP UNDER 35 U.S.C. 256

Plaintiffs TIMOTHY P. CURNUTT (hereinafter, CURNUTT), an individual, a resident of the State of California, and DISTINCTIVE PLASTICS, INC. (hereinafter, DPI), a California Corporation, for its Complaint against Defendant KIP CARTER, (hereinafter, CARTER), an individual, a resident of State of California, alleges as follows: /// /// ///

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NATURE OF THE CASE This is a civil action pursuant to 35 U.S.C. 256 for correction of inventorship

of United States Patent No. 8,360,590 (hereinafter, the 590 Patent), issued January 29, 2013, titled PLUMBING FIXTURE WITH LIGHT PIPE ILLUMINATION. A true and correct copy of the 590 Patent is attached hereto as Exhibit 1. 2. This action arises out of the failure of Defendant CARTER to name Plaintiff

CURNUTT, President of Plaintiff DPI, as an inventor of the inventions claimed in the 590 Patent.

THE PARTIES At all relevant times herein mentioned, Plaintiff CURNUTT, an individual, a

resident of the State of California, is and was President of Plaintiff DPI, with its principal place of business at 1385 Decision Street, Vista, California 92081. 4. At all relevant times herein mentioned, Plaintiff DPI is and was a corporation

organized and duly existing under and by virtue of the laws of the State of California, with its principal place of business at 1385 Decision Street, Vista, California 92081. 5. Plaintiff is informed and believes and based thereon alleges that CARTER is an

individual, having a residence address of 32565 Favara Drive, Temecula, California, 92592. 6. Plaintiff is informed and believes and based thereon alleges that CARTER owns

and manages LIQUID INNOVATIONS, LLC, a limited liability company organized and duly existing under and by virtue of the laws of the State of California, with its principal place of business at 32565 Favara Drive, Temecula, California, 92592. 7. Plaintiff is informed and believes and based thereon alleges that CARTER is an

individual who may be served with process at 32565 Favara Drive, Temecula, California, 92592 or wherever he may be found.

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JURISDICTION AND VENUE 8. This action arises under the Patent Laws of the United States, 35 U.S.C. 101 et

seq., and specifically under 35 U.S.C. 256. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331 and 1338. 9. Upon information and belief, CARTER has transacted and continues to transact

substantial business within this District in the State of California, by marketing and selling products within this District. CARTER is therefore subject to personal jurisdiction in this Court. 10. Upon information and belief, products marketed and sold by CARTER within

the District of California include products using the methods and apparatus that are within the scope of the inventions claimed in the 590 Patent. 11. Venue is proper in this District under 28 U.S.C. 1391(b) and (c), because

CARTER is subject to personal jurisdiction in this District.

FACTUAL BACKGROUND 12. Plaintiff DPI. 13. On or about December 20, 2002, Plaintiff DPI and CARTER entered into a On or about October 29, 2002, CARTER was hired as a full-time employee by

written Employment Agreement setting forth the terms of CARTERs employment, including CARTERs duties and obligations of employment. A true and correct copy of the Employment Agreement is attached hereto as Exhibit 2. 14. Under Article 3 of the Employment Agreement, CARTER expressly agreed to

refrain from engaging in certain courses of conduct, agreed to assign certain potential

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intellectual property rights to Plaintiff DPI, and further agreed to return to Plaintiffs any property owned by Plaintiffs upon termination of CARTERs employment. 15. Plaintiffs CURNUTT and DPI have fully performed all covenants, conditions

and promises to be performed by it under the Employment Agreement except those covenants, conditions and promises the performance of which were excused due to CARTERs material breaches of contract and related failure of conditions precedent to the performance of such covenants, conditions and promises. 16. Plaintiff DPI is a Unique Contract Manufacturer specializing in products and

9 10 11 12 13 plastic parts, commonly referred to as a proprietary two-shot IMD process. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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services including but not limited to Custom Plastic Injection Molding, such as Multi-shot Molding, In-Mold Decorating (hereinafter, IMD), In-Mold Assembly, and Device Molding. 17. During the term of CARTERs employment, Plaintiffs CURNUTT and DPI

developed a proprietary method and process of injecting plastics in molding of decorative

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The proprietary two-shot IMD method and process developed by Plaintiffs

CURNUTT and DPI was kept confidential by Plaintiffs during its extended development period, and purposefully not made public by Plaintiffs to ensure its competitive advantage. 19. During CARTERs employment with Plaintiff DPI, CARTER was the only

outside sales person for DPI, and as a result, CARTER had access and was keenly familiar with Plaintiff DPIs current business, and anticipated business. 20. During CARTERs employment with Plaintiff DPI, Plaintiff CURNUTT would

often discuss current business, future business, current products, future products, and overall trends in the various markets that Plaintiff DPI provided products. 21. Plaintiff DPI has been and continues to be an active provider of products and

services to the pool and spa industry. 22. On or about 2007 and 2008, Plaintiff CURNUTT and Defendant CARTER had

discussions during which CURNUTT showed and described the benefits of an annular wall

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fitting for use in water environments which was made using Plaintiff DPIs proprietary method and process of injection molding. 23. During that same discussion, Plaintiff CURNUTT demonstrated the light-

transmission qualities of the overmolded clear layer of the annular wall fitting, and outlined his plans for creation of an underwater illuminated wall fitting having improved durability based on the method by which it was manufactured. 24. The proprietary two-shot IMD method and process, and various products made

using that method and process were becoming, or were anticipated to become, key aspects of Plaintiff DPIs operations and business dealings and would provide Plaintiff DPI with a substantial competitive advantage. 25. During the term of his employment with Plaintiff DPI, CARTER was provided

extensive, detailed, confidential information concerning Plaintiff DPI and its products, including information related to the proprietary two-shot IMD method and process set forth above and the various products to embody this process. 26. Paragraph 5 of the Employment Agreement (attached as Exhibit 2) clearly and

unequivocally sets forth an CARTERs obligations regarding assignment of any intellectual property by an employee to Plaintiff DPI. 27. Notwithstanding these clearly set forth and agreed upon obligations of

assignment, during the term of his employment with Plaintiffs, on or about August 22, 2008, CARTER filed a provisional patent application, Serial Number 61/091,260 (hereinafter, the 260 Provisional Patent Application), naming only CARTER as an inventor. This provisional patent application was filed without the knowledge or consent of Plaintiffs. 28. The 260 Provisional Patent Application included a significant amount of

disclosure created by Plaintiff CURNUTT; however CURNUTT was not listed as an inventor. 29. Pursuant to the Employment Agreement, all inventions created by employees

during their employment and not subject to labor code exclusions, shall be assigned to Plaintiff DPI so that DPI could prosecute the inventions through the United States and foreign patent offices for the benefit of DPI.
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30.

During the term of his employment with Plaintiff DPI, on or about September 30,

2008, CARTER formed LIQUID INNOVATIONS, LLC, without the knowledge or consent of Plaintiffs. 31. LIQUID INNOVATIONS, LLC is intended to provide plastic injection molded

products to the spa market, and is a direct competitor to Plaintiff DPI. 32. On or about August 18, 2009, the 260 Provisional Patent Application was

converted to a U.S. Utility Patent Application, Serial Number 12/543,055 (hereinafter, the 055 Patent Application), which claimed priority to the 260 Provisional Patent Application naming only CARTER as an inventor, improperly omitting Plaintiff CURNUTT. 33. On August 24, 2009, Plaintiff DPI provided an updated written employee

handbook to CARTER setting forth Plaintiff DPIs company policies and procedures as well as standards of employee conduct and operational considerations. CARTER acknowledged in writing receipt of the updated employee handbook and further expressly agreed that it was his responsibility to read and familiarize himself with the policies and procedures contained in the handbook. 34. The 055 Patent Application was subsequently published on February 25, 2010.

A true and correct copy of the published 055 Patent Application is attached hereto as Exhibit 3. 35. On May 3, 2010, months after the publication of the 055 Patent Application,

Plaintiff DPI provided another updated written employee handbook to CARTER setting forth Plaintiff DPIs company policies and procedures as well as standards of employee conduct and operational considerations and renewed his promises to read and familiarize himself with the policies and procedures contained in the handbook. 36. By signing the acknowledgement and receipt of the August 24, 2009 employee

handbook and the May 3, 2010 employee handbook, CARTER made promises to Plaintiffs that were important to Plaintiffs, including the following important promises:

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a. CARTER promised to Plaintiffs that CARTER would not commit a breach of trust; b. CARTER promised not to disclose or use Plaintiffs confidential information for non-work related purposes; c. CARTER promised to keep Plaintiffs confidential information confidential;

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 38. At the time each of these promises set forth above were made on August 24, 2009 and May 3, 2010, CARTER intended to induce Plaintiffs reliance on the same in order to cause Plaintiffs to continue to maintain CARTERs employment with Plaintiff DPI and continue to provide CARTER access to Plaintiffs confidential information and proprietary trade secrets and other assets of Plaintiffs, including its customers, employees, service providers, computers and database. 39. In reasonable reliance on the promises made on August 24, 2009 and May 3, 37. d. CARTER promised not to disclose Plaintiffs confidential information; and e. CARTER promised to return to Plaintiffs all confidential information in CARTERs possession immediately upon the termination of his employment with Plaintiffs. At the time each of these promises set forth above were made on August 24,

2009 and May 3, 2010, CARTER did not intend to perform these promises. In fact, CARTER had already filed for patent protection of Plaintiffs proprietary two-shot IMD method on August 22, 2008 and had already formed LIQUID INNOVATIONS, LLC, a direct competitor to Plaintiff DPI, on September 30, 2008.

2010, Plaintiffs continued to employ CARTER and further continued to allow CARTER access to Plaintiffs confidential information, including its proprietary trade secrets. 40. CARTER did not perform any of the promises set forth above and intentionally

disclosed Plaintiffs proprietary trade secrets in the published 055 Patent Application, disclosed Plaintiffs proprietary two-shot IMD method and process at trade shows, formed LIQUID
COMPLAINT FOR CORRECTION OF INVENTORSHIP UNDER 35 U.S.C. 256
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INNOVATIONS, LLC to compete with Plaintiff DPI, disclosed Plaintiffs proprietary and confidential customer list to LIQUID INNOVATIONS, LLC, caused LIQUID INNOVATIONS, LLC to use Plaintiff DPIs proprietary and confidential information in order to unfairly compete with Plaintiff DPI, and failed to return confidential information to Plaintiffs upon his termination, including original graphical depictions rendered by Plaintiff CURNUTT depicting the proprietary two-shot IMD method and embodying the process developed by Plaintiffs, customer list of Plaintiff DPI and other confidential documents belonging to Plaintiffs. These disclosures and uses of Plaintiffs confidential information were done without the knowledge or consent of Plaintiffs. 41. Plaintiff is informed and believes and based thereon alleges that beginning

shortly after publication of the 055 Patent Application and continuing thereafter, CARTER has marketed and continued to market products embodying the proprietary two-shot IMD process disclosed and claimed in the 055 Patent Application, invented by plaintiff CURNUTT and developed by Plaintiff DPI. 42. CARTERs failure to perform these promises was a substantial factor in causing

Plaintiffs damage, most particularly the loss of Plaintiffs trade secret rights which occurred February 25, 2010, as a direct result of the unauthorized publication of Plaintiff DPIs proprietary methods and devices disclosed in the 055 Patent Application as well as CARTERs use of Plaintiffs proprietary customer list in order to unfairly compete with Plaintiff DPI. 43. After over eight (8) years of continuous employment, CARTER voluntarily

terminated his employment with Plaintiff DPI on January 16, 2011. At no time prior to CARTERs voluntary termination of his employment with Plaintiffs, were Plaintiffs notified by CARTER, or otherwise made aware, of CARTERs activities as set forth above, nor did Plaintiffs ever provide any consent to said activities of CARTER. 44. Shortly after learning of the existence of the 055 Patent Application, Plaintiff

CURNUTT demanded that CARTER immediately cease all offerings for sale all products made with the two-shot IMD method and process and execute a patent assignment which would

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assign the 055 Patent Application and all rights associated therewith to Plaintiffs. A true and correct copy of the demand letter is attached hereto as Exhibit 4. 45. As a result of CARTERs refusal to honor his commitments made through the

Employee Agreement and Confidentiality Agreements, and his refusal to assign the 055 Patent Application to Plaintiff DPI as demanded, on April 20, 2011, Plaintiff DPI initiated a lawsuit for breach of written contracts, breach of fiduciary duty; misappropriation of trade secrets; fraud; intentional interference with economic relationships; intentional interference with prospective business advantage; conversion; unfair business practices under unfair competition law; injunctive relief; accounting; and declaratory relief in the San Diego Superior Court, North County Division, assigned Case No. 37-2011-00053748-CU-BC-NC (hereinafter, the Superior Court Case). A true and correct copy of the First Amended Complaint in the Superior Court Case is attached hereto as Exhibit 5. 46. Shortly after the filing of the Superior Court Case, Plaintiff DPI sought a

Preliminary Injunction against CARTER to be enjoined and restrained from engaging in, committing, or performing, directly or indirectly, by any means whatsoever, any of the following acts: a. From taking any action that would result in the express abandonment of the utility patent application entitled PLUMBING FIXTURE WITH LIGHT PIPE ILLUMINATION, Application Number 12/543,055 (the 055 Patent Application); b. From selling, assigning, transferring, conveying, licensing the 055 Patent Application, in whole or in part, to any individual, corporation, professional corporation, limited liability company, partnership, limited partnership, joint venture or any other legal entity or association; c. From making any substantive response to any communication or formal Office Action from a representative of the United States Patent and Trademark Office in any way relating to or claiming the benefit of priority to the 055 Patent Application;
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d. From taking any other act that could in any way encumber or affect ownership rights in the 055 Patent Application; and e. From taking any other act that would in any way affect the status quo relating to the 055 Patent Application and the rights and/or potential rights associated therewith. The Superior Court granted the Preliminary Injunction on June 21, 2011. A true

and correct copy of the Preliminary Injunction is attached hereto as Exhibit 6. 48. Despite the Preliminary Injunction, CARTER failed to abide by the terms of the

Preliminary Injunction, and as a result, Plaintiff DPI sought relief from the Court for violations of the Preliminary Injunction. The Court heard the Order to Show Cause In Re Contempt on March 29, 2012, and due to the Courts heavy docket, continued the hearing on the Contempt Motion until the time of Trial. 49. 50. Trial for the Superior Court Case is currently set for March 8, 2013. Plaintiffs are informed and believe and based thereon allege that CARTER has

continued his efforts to offer products for sale that embody and are made with the proprietary two-shot IMD method and process. 51. Plaintiffs are further informed and believe and based thereon allege that

CARTER has played and continues to play an active role in advertising the products made with the proprietary two-shot IMD method and process to independent third parties at industry tradeshows, through his company, LIQUID INNOVATIONS, LLC. 52. CARTERs material breaches of contract and failure of performance on the

covenants, conditions and promises with Plaintiffs have occurred through all of CARTERs conduct listed above. 53. In paragraph 1 of the Notice of Allowance issued October 1, 2012, by the United

States Patent and Trademark Office, the following is an examiners statement of reasons for allowance of claims 1-11 in the 055 Patent Application:

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The prior art of record does not suggest a continuously submerged illumination device comprising: a molded substrate forming an annular body adapted to be submerged in water, said molded substrate having an exposed surface formed as a curved surface and adapted to face a body of water and an inside surface sealed from said body of water; a translucent light transmitting layer molded so as to overlie a portion of said substrate, said light transmitting layer defining a complimentary annular portion matching a shape of said annular body and adapted to be submerged in water; a lighting element providing light to said light transmitting layer over said exposed surface of said molded substrate, said lighting element being mounted at said inside surface and providing light to said light piping element and over said exposed surface of said molded substrate.

A true and correct copy of the Notice of Allowance dated October 1, 2012 is attached hereto as Exhibit 7. 54. The reasons for allowance of claims 1-11 stated in the Notice of Allowance in

paragraph 1 exactly refer to the proprietary two-shot IMD method and process and the contemplated resulting products and apparatus developed by Plaintiffs CURNUTT and DPI and as embodied in the claimed submerged illumination device. 55. The proprietary two-shot IMD method and process, a key aspect of Plaintiff

DPIs operations and business dealings which was invented and developed by Plaintiffs are embodied in the apparatus claims in the CARTERs 055 Patent Application as allowed. 56. On January 29, 2013, the filing date of this Complaint, the 590 Patent issued

based on the 055 Patent Application and claiming priority to the 260 Provisional Patent Application, improperly listing CARTER as the only inventor, and omitting Plaintiff CURNUTT, the primary inventor. 57. This inventorship is in error because it does not include Plaintiff CURNUTT, the

primary inventor, as an inventor of the 590 Patent. 58. The 590 Patent disclosed and claimed DPIs proprietary products embodying

two-shot IMD method and process developed by Plaintiffs CURNUTT and DPI, and also
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included as artwork, near identical duplicates of original graphical depictions rendered by Plaintiff CURNUTT. 59. Plaintiffs CURNUTT and DPI developed a proprietary method and process of

injecting plastics in molding of decorative plastic parts, commonly referred to as the two-shot IMD process, the key aspect and the reason for allowance of claims disclosed in the invention in this 590 Patent. 60. Plaintiff CURNUTT has developed and significantly contributed to the

conception of the inventions claimed in the 590 Patent from the inception and is thus a joint inventor of all inventions disclosed and claimed in the 590 Patent. 61. The error in not listing Plaintiff CURNUTT as a joint inventor of the invention

claimed in the 590 Patent arose without any deceptive intent on the part of Plaintiffs CURNUTT and DPI. 62. Recently, Defendant CARTER filed a continuing Patent Application Serial

Number 13/749,806 (the 806 Patent Application) which claims the benefit of the 055 Patent Application, and which also suffers from the same incorrect inventorship issues as the 590 patent.

FIRST CAUSE OF ACTION Correction of Inventorship of U.S. Patent No. 8,360,590, Pursuant to 35 U.S.C. 256 63. Plaintiff DPI repeats and realleges each and every allegation of paragraphs 1

through 62 as if recited herein. 64. The inventorship of the 590 Patent is incorrect because Plaintiff CURNUTT is

not listed as an inventor on the 590 Patent, through CARTERs omission, inadvertence, or error.

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65.

Plaintiff CURNUTT made independent conceptual contributions to the invention

claimed in the 590 Patent, by conceiving of, solely as President of Plaintiff DPI, and with collaboration with other employees of Plaintiff DPI, every aspect of the claimed invention. 66. The omission of Plaintiff CURNUTT as an inventor on the 590 Patent occurred

without any prior knowledge or consent by Plaintiffs. 67. Plaintiff CURNUTT has standing to request a correction of inventorship of the

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590 Patent because Plaintiff CURNUTT should have been a listed inventor on an issued United States Patent. 68. Plaintiff DPI has standing to request correction of inventorship as CARTER and

CURNUTT have affirmative obligations to assign all interests in any inventions to DPI which will act as beneficial owner of the invention and has sufficient financial interest for the correction of inventorship. 69. Plaintiff CURNUTT has suffered substantial damages, most particularly the loss

of Plaintiffs trade secret rights which occurred February 25, 2010, as a direct result of the unauthorized publication of Plaintiffs proprietary methods disclosed in the 055 Patent Application as well as CARTERs use of Plaintiffs proprietary customer list in order to unfairly compete with Plaintiff DPI. 70. Now, as a direct result of the unauthorized issuance of Plaintiffs proprietary

methods disclosed in the 590 Patent, without any proper correction of inventorship for the inventions that Plaintiffs invented, Plaintiff CURNUTT will continue to suffer financial damages and be precluded from enjoying the rights to his invention. 71. By failing to name Plaintiff CURNUTT as a joint inventor in the declaration

filed on August 18, 2009, in support of the 055 Patent Application, CARTER violated 35 U.S.C. 115 and 116, which requires the identification of each inventor in the oath or declaration supporting a patent application.

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72.

Without correction of the named inventor under 35 U.S.C. 256, CARTERs

violation of these federal statutes will continue unabated to the detriment of Plaintiffs CURNUTT and DPI and the public at large. 73. Plaintiffs therefore, request correction of the inventor named in the 590 Patent to

insure compliance with the federal requirements for filing patent applications, to preserve Plaintiffs good name and reputation, and to properly identify the inventors for the benefit of the public. 74. Upon information and belief, all parties concerned with the inventorship of the

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590 Patent for which correction of inventorship is sought have been put on notice or will be put on notice pursuant to filing and service of this Complaint.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs CURNUTT and DPI pray for the following relief: A. Judgment that Plaintiff TIMOTHY P. CURNUTT is a joint inventor of the invention claimed in U.S. Patent No. 8,360,590; B. Issuance of an order pursuant to 35 U.S.C. 256, requiring the Director of the United States Patent and Trademark Office to correct inventorship of U.S. Patent No. 8,360,590 by adding Plaintiff TIMOTHY P. CURNUTT as a co-inventor; C. Judgment that Plaintiffs be awarded their attorneys fees and costs of this suit in bringing this action; D. Should the Court determine that the omission of Plaintiff CURNUTT was intentional and with deceptive intent, then an award of punitive damages against Defendant CARTER; and

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E. Any additional relief that the Court deems just and proper.

Respectfully Submitted, Dated: January 29, 2013 Gary L. Eastman, APLC

By_/s/ Gary L. Eastman Gary L. Eastman, Esq. Attorney for Plaintiff

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: January 29, 2013

DEMAND FOR JURY

Plaintiffs hereby demand a trial by jury in this matter.

Respectfully Submitted, Gary L. Eastman, APLC

By_/s/ Gary L. Eastman Gary L. Eastman, Esq. Attorney for Plaintiff

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