Glud & Marstrand A/S v. Viva Magnetics LTD Hong Kong Et. Al.

Case 2:12-cv-00465 Document 1
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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 1. Plaintiff Glud & Marstrand A/S (G&M), by and through its attorneys, alleges for its Complaint against Viva Magnetics Ltd. (Hong Kong), Viva USA, Inc. and Viva Magnetics (Canada) Ltd. (collectively, Viva) as follows: NATURE OF THE ACTION G&M brings this action to recover damages and obtain injunctive and other v. VIVA MAGNETICS LTD. (HONG KONG), VIVA USA, INC. and VIVA MAGNETICS (CANADA) LTD., Defendants. GLUD & MARSTRAND A/S, No. Plaintiff, COMPLAINT FOR PATENT INFRINGEMENT AND BREACH OF CONTRACT JURY DEMAND UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
relief arising from Vivas infringement of G&Ms patents and breach of a settlement agreement between G&M and Viva reached in a previous action before this Court (the January 2007 Settlement Agreement). G&M is the owner and developer of patented technology relating to metal storage containers for storage media such as Digital Video Discs (DVDs), Blu-ray Discs and Compact Discs (CDs). G&Ms claims arise out of COMPLAINT FOR PATENT INFRINGEMENT AND BREACH OF CONTRACT Page 1
818 STEW ART STREET, SUITE 1400 SEATTLE W ASHINGTON 98101 T 206.516.3800 F 206.516.3888
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Vivas breach of its agreement not to manufacture, cause to be manufactured, market or sell a metal storage container that infringes the claims of U.S. Patent No. 7,051,872 (the 872 Patent) or the claim of U.S. Design Patent No. D562,049 (the D049 Patent), and Vivas corresponding infringement of the 872 Patent and the D049 Patent. PARTIES 2. Plaintiff G&M is a limited liability entity organized and existing under the
laws of Denmark, with a principal place of business in Lsning, Denmark. 3. Upon information and belief, Defendant Viva Magnetics Ltd. (Hong Kong)
is a limited liability company organized and existing under the laws of Hong Kong, China, with a principal place of business in Hong Kong, China. 4. Upon information and belief, Defendant Viva USA, Inc. is a corporation
organized and existing under the laws of the State of California, with a principal place of business in Los Angeles, California. 5. Upon information and belief, Defendant Viva Magnetics (Canada), Ltd. is a
limited liability company organized and existing under the laws of Canada, with a principal place of business in Scarborough, Ontario, Canada. JURISDICTION AND VENUE 6. This Court has jurisdiction over G&Ms claims for infringement of the 872
Patent and the D049 Patent and for breach of the January 2007 Settlement Agreement by stipulation of the parties and order of the Court, dated April 17, 2007, in Glud & Marstrand A/S v. Microsoft Corp. and Viva Group Ltd., Civil Action No. 05-1563 (RSM) (the Stipulation and Order). As set forth in the Stipulation and Order: The Court shall retain jurisdiction over this matter for the purposes of enforcing the January 2007 Settlement Agreement, including, but not limited to, any relief sought for a breach or default under the January 2007 Agreement. A copy of the Stipulation and Order is attached as Exhibit 1.
COMPLAINT FOR PATENT INFRINGEMENT AND BREACH OF CONTRACT Page 2

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7.
This Court also has jurisdiction over G&Ms claims for infringement of the
872 Patent and the D049 Patent arising under the patent laws of the United States, 35 U.S.C. 1 et seq., pursuant to 28 U.S.C. 1331 and 1338(a). 8. This Court also has supplemental jurisdiction over G&Ms claim for breach
of the January 2007 Settlement Agreement pursuant to 28 U.S.C. 1367(a), because that claim is so related to G&Ms claims for infringement of the 872 Patent and the D049 Patent that it forms part of the same case or controversy and derives from a common nucleus of operative facts. 9. This Court has personal jurisdiction over Viva by agreement between the
parties. Viva consented to the jurisdiction of the Court pursuant to the Stipulation and Order and the January 2007 Settlement Agreement. 10. This Court also has personal jurisdiction over Viva because, on information
and belief, Viva has sufficient contacts with this judicial district and Viva regularly conducts business within this judicial district. Upon information and belief, Viva directly or through its agents distributes, offers for sale or license, sells or licenses, and advertises its products and services within the State of Washington and this judicial district, has purposefully availed itself of the privileges and benefits of the laws of the State of Washington, and committed acts of patent infringement during the course of its business in this judicial district. 11. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b), (c)
and (d) and 1400(b). Venue is also proper in this judicial district because Viva consented to venue in this judicial district pursuant to the Stipulation and Order and the January 2007 Settlement Agreement.

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 16. 12.
G&MS CLAIMS OF INFRINGEMENT AND BREACH The 872 Patent Founded over 125 years ago, G&M is Scandinavias largest supplier of
metal packaging. G&M develops and manufactures metal packaging for various food and consumer products and decorative tins for a wide variety of other products. 13. Several years ago, G&M originated the idea of a metal case for storage
media, such as CDs and DVDs, that could be filled with conventional loading equipment and, using proprietary technology, applying colored lacquering, embossing and hologram printing directly into the metal surface of the case. G&M believed that such packaging would be aesthetically pleasing, giving the packaged product a look of enhanced value, and also serve as a deterrent to counterfeiters, who would be unable to duplicate such packaging without considerable expense. 14. The innovative work of G&Ms engineers and developers has been rewarded
with several United States Patents, including the 872 Patent. 15. Each of the inventors of the 872 Patent has assigned the 872 Patent to
G&M, so that G&M is the sole owner of all right and title to the 872 Patent, including the right to recover damages for infringement. The D049 Patent Several years ago, a G&M engineer also invented a unique ornamental
design for a hard box for storage media disks. He was awarded the D049 Patent for his invention. 17. The inventor of the D049 Patent has assigned the D049 Patent to G&M, so
that G&M is the sole owner of all right and title to the D049 Patent, including the right to recover damages for infringement.

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 18.
The Prior Litigation On or about September 12, 2005, G&M filed a complaint in the Western
District of Washington, captioned Glud & Marstrand A/S v. Microsoft Corp. and Viva Group Ltd., Civil Action No. 05-1563 (RSM) (the Prior Litigation), which was amended on or about September 26, 2006 to include, inter alia, a claim against Viva for infringement of the 872 Patent. 19. On or about January 19, 2007, G&M and Viva agreed to settle the Prior
Litigation pursuant to the terms of the January 2007 Settlement Agreement. As part of the January 2007 Settlement Agreement, Viva agreed to (1) cease the manufacture and marketing of its current metal Digital Versatile Disk (DVD) case; and (2) not manufacture, cause to be manufactured, market or sell in the future any storage metal box in violation of any claim not previously held invalid of the 872 Patent and its progeny, and foreign counterparts, which are listed on Exhibit A. 20. One of the progeny to the 872 Patent listed on Exhibit A to the January
2007 Settlement Agreement is U.S. Patent Application No. 29/204,488, which later became the D049 Patent. 21. Viva further agreed that it will not challenge the validity of the 872 Patent,
its progeny, or counterpart patents. 22. On or about April 11, 2007, the parties signed and submitted a Stipulation
and Order of Dismissal with Prejudice, which was so ordered by the Court on April 17, 2007. The Stipulation and Order contained a provision stating that the Court shall retain jurisdiction over this matter for the purposes of enforcing the January 2007 Settlement Agreement, including, but not limited to, any relief sought for a breach or default under the January 2007 Agreement.

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 23.
Vivas Infringement Upon information and belief, Viva did cease manufacturing the products at
issue in the Prior Litigation. But notwithstanding its agreement not to manufacture any storage metal box that infringes any claim of either the 872 Patent or the D049 Patent, following the January 2007 Settlement Agreement, Viva has resumed manufacturing storage metal boxes that infringe claims of both the 872 Patent and theD049 Patent. 24. Upon information and belief, Viva is currently manufacturing and selling at
least the following infringing products under its Metal Box for Blu-ray and DVD product line: Metal Blu-ray Box 12.5mm, Metal Blu-ray Box 15mm, and Metal DVD Box. 25. Upon information and belief, Vivas Metal Box for Blu-ray and DVD
product line is being used and offered for sale in the United States and/or imported into the United States in connection with at least the following Blu-ray and/or DVD movie titles: The Lion King; Bambi: Diamond Edition; The Incredibles; and Pirates of the Caribbean: On Stranger Tides. 26. Upon information and belief, Viva intends to use and offer for sale in the
United States and/or import into the United States its Metal Box for Blu-ray and DVD product line in connection with additional Blu-ray and/or DVD movie titles in the near future. 27. G&M gave notice to Viva that its Metal Box for Blu-ray and DVD products
infringe claims of the 872 Patent on or about February 23, 2011 and again on or about April 28, 2011. 28. G&M gave notice to Viva that its Metal Box for Blu-ray and DVD products
infringe the claim of the D049 Patent on or about April 28, 2011.

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 29.
FIRST CAUSE OF ACTION Patent Infringement G&M hereby realleges and incorporates by reference each and every
allegation set forth in paragraphs 1 through 28 above. 30. On May 30, 2006, the 872 Patent entitled Metal Packaging was duly and
legally issued to G&M by the United States Patent and Trademark Office. G&M is the owner, by valid assignment, of all right, title and interest in and to the 872 Patent. A true and correct copy of the 872 Patent is attached as Exhibit 2. 31. G&M has not licensed or otherwise authorized Viva to make, use, offer for
sale, sell or import into the United States any products that embody the inventions of the 872 Patent. 32. On information and belief, Viva has directly infringed and continues to
directly infringe claims of the 872 Patent by making, using, offering for sale and/or selling in the United States and/or importing into the United States one or more products including, but not limited to, Metal Blu-ray Box 12.5mm, Metal Blu-ray Box 15mm, and Metal DVD Box. 33. 26, 2006. 34. On information and belief, Viva has indirectly infringed and continues to Viva has had actual knowledge of the 872 Patent since at least September
indirectly infringe claims of the 872 Patent by inducing end-users to infringe claims of the 872 Patent by using in the United States one or more products including, but not limited to, Metal Blu-ray Box 12.5mm, Metal Blu-ray Box 15mm, and Metal DVD Box. Viva intentionally took action that induced end-users to infringe claims of the 872 Patent by marketing, selling, and supporting the infringing products. Viva has awareness of the 872 Patent and knew or was willfully blind to the fact that its actions would cause direct infringement by end-users.

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35.
Upon information and belief, Vivas infringement of claims of G&Ms 872
Patent has been and will continue to be willful, wanton and deliberate. 36. G&M is damaged and irreparably injured by Vivas infringing activities and
will continue to be so damaged and irreparably injured unless and until Vivas infringing activities are enjoined by this Court. SECOND CAUSE OF ACTION Patent Infringement 37. G&M hereby realleges and incorporates by reference each and every
allegation set forth in paragraphs 1 through 36 above. 38. On February 19, 2008, the D049 Patent entitled Hard Box for Media Disk
was duly and legally issued to G&M by the United States Patent and Trademark Office. G&M is the owner, by valid assignment, of all right, title and interest in and to the D049 Patent. A true and correct copy of the D049 Patent is attached as Exhibit 3. 39. G&M has not licensed or otherwise authorized Viva to make, use, offer for
sale, sell or import into the United States any products that embody the invention of the D049 Patent. 40. On information and belief, Viva has directly infringed and continues to
directly infringe the claim of the D049 Patent by making, using, offering for sale and/or selling in the United States and/or importing into the United States one or more products including, but not limited to, Metal Blu-ray Box 12.5mm, Metal Blu-ray Box 15mm, and Metal DVD Box. 41. Viva has had actual knowledge of the application for the D049 Patent since
at least January 19, 2007. Viva has had constructive notice of the D049 Patent since it issued, and actual notice of the D049 Patent since on or about April 28, 2011. 42. On information and belief, Viva has indirectly infringed and continues to
indirectly infringe the claim of the D049 Patent by inducing end-users to infringe the claim

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of the D049 Patent by using in the United States one or more products including, but not limited to, Metal Blu-ray Box 12.5mm, Metal Blu-ray Box 15mm, and Metal DVD Box. Viva intentionally took action that induced end-users to infringe the claim of the D049 Patent by marketing, selling, and supporting the infringing products. Viva has awareness of the D049 Patent and knew or was willfully blind to the fact that its actions would cause direct infringement by end-users. 43. Upon information and belief, Vivas infringement of the claim of G&Ms
D049 Patent has been and will continue to be willful, wanton and deliberate. 44. G&M is damaged and irreparably injured by Vivas infringing activities and
will continue to be so damaged and irreparably injured unless and until Vivas infringing activities are enjoined by this Court. THIRD CAUSE OF ACTION Breach of Contract 45. G&M hereby realleges and incorporates by reference each and every
allegation set forth in paragraphs 1 through 44 above. 46. G&M and Viva entered into a written contract referred to as the January
2007 Settlement Agreement that, inter alia, resulted in the dismissal of the Prior Litigation. 47. 48. Agreement. 49. As set forth above, by its actions infringing claims of the 872 Patent and the The January 2007 Settlement Agreement is a valid and enforceable contract. G&M has performed its obligations under the January 2007 Settlement
D049 Patent, Viva has breached its obligations under the January 2007 Settlement Agreement. 50. As a direct result of Vivas breaches of the January 2007 Settlement
Agreement, G&M has suffered damages and other harm.

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51.
G&M has suffered, and will continue to suffer, substantial and irreparable
damage to its position in the market, business reputation and goodwill for which G&M has no adequate remedy at law, as well as losses in an amount to be determined. 52. G&M is also entitled to recover its attorneys fees and costs pursuant to the
terms of the January 2007 Settlement Agreement. PRAYER FOR RELIEF WHEREFORE, G&M prays for judgment as follows: A. An entry of judgment that the 872 Patent and the D049 Patent are each
valid and enforceable; B. An entry of judgment holding Viva liable for infringement of one or more
claims of each of the 872 Patent and the D049 Patent and for breach of the January 2007 Settlement Agreement; C. An order permanently enjoining Viva, its officers, agents, representatives,
employees, attorneys and affiliated companies, their assigns and successors in interest, and those persons in active concert or participation with them, from continued acts of infringement of the 872 Patent and the D049 Patent; D. An order awarding G&M all damages adequate to compensate for Vivas
infringement of the 872 Patent and the D049 Patent, and in no event less than a reasonable royalty for Vivas acts of infringement, and for breach of the January 2007 Settlement Agreement, together with prejudgment and post-judgment interest; E. Trebling of damages under 35 U.S.C. 284 in view of the willful and
deliberate nature of Vivas infringement of the 872 Patent and the D049 Patent, together with prejudgment and post-judgment interest; F. An order awarding G&M all of Vivas profits, pursuant to 35 U.S.C. 289,
together with prejudgment and post-judgment interest;

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G.
Actual damages suffered by G&M as a result of Vivas unlawful conduct, in
an amount to be proven at trial, together with prejudgment and post-judgment interest; H. An order awarding G&M its costs and attorneys fees pursuant to the
January 2007 Settlement Agreement and/or 35 U.S.C. 285; and I. Any and all other legal and equitable relief as may be available under the
law and which the Court may deem proper. DEMAND FOR A JURY TRIAL G&M hereby demands a jury trial on all issues so triable under the law as provided by Rule 38(b) of the Federal Rules of Civil Procedure. Dated: March 16, 2012 YARMUTH WILSDON CALFO PLLC By: /s/ Jeremy Roller Angelo J. Calfo, WSBA No. 27079 Jeremy E. Roller, WSBA No. 32021 818 Stewart Street, Suite 1400 Seattle, WA 98101 Telephone: (206) 516-3800 Facsimile: (206) 516-3888 acalfo@yarmuth.com jroller@yarmuth.com Patricia A. Martone (pro hac vice application to be filed) Craig B. Whitney (pro hac vice application to be filed) MORRISON & FOERSTER LLP 1290 Avenue of the Americas New York, NY 10104 Telephone: (212) 468-8000 Facsimile: (212) 468-7900 pmartone@mofo.com cwhitney@mofo.com Attorneys for Plaintiff GLUD & MARSTRAND A/S

691.01 mc163501 3/16/12
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EXHIBIT 1
Case 2:05-cv-01563-RSM Document 122 Filed 04/17/07 Page 1 of 3 Case 2:12-cv-00465 Document 1 Filed 03/16/12 Page 13 of 56 Hon. Ricardo S. Martinez
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON GLUD & MARSTRAND A/S, Plaintiff, vs. MICROSOFT CORP. and VIVA GROUP LTD., Defendants. STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE Note On Motion Calendar: April 11, 2007 CIVIL ACTION NO. 05-1563 (RSM)
The matter in difference between Plaintiff Glud & Marstrand A/S and Defendants Viva Magnetics Ltd. Hong Kong, and Viva Magnetics (Canada) Ltd. having been settled pursuant to an agreement entered into among those parties in January 2007 (hereinafter, the January 2007 Settlement Agreement); IT IS HEREBY STIPULATED that: 1. The claims asserted by Plaintiff Glud & Marstrand A/S against Defendants Viva
Group, Viva Magnetics Ltd. Hong Kong, Viva Magnetics (Europe) N.V., Viva Magnetics (Canada) Ltd., Viva USA, Inc. and Encore Holdings, Ltd. are hereby dismissed with prejudice and with each party bearing its own attorneys fees and costs.
STIPULATION AND [PROPOSED] ORDER OF DISMISSAL WITH PREJUDICE - 1
Civil Action No. 05-1563 (RSM)
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2.
The claims asserted by Defendants Viva Magnetics Ltd. Hong Kong and Viva
Magnetics (Canada) Ltd. against Plaintiff Glud & Marstrand A/S are hereby dismissed with prejudice and with each party bearing its own attorneys fees and costs. 3. The Court shall retain jurisdiction over this matter for the purposes of enforcing
the January 2007 Settlement Agreement, including, but not limited to, any relief sought for a breach or default under the January 2007 Agreement. We concur to the form of and entry of this Order. For Defendants Viva Magnetics Ltd. Hong Kong and Viva Magnetics (Canada) Ltd. Robert C. Faber Lawrence A. Hoffman Douglas Q. Hahn OSTERLENK, FABER, GERB & SOFFEN LLP 1180 Avenue of the Americas New York, NY 10036 P: 212.382.0700 Paul T. Meiklejohn, WSBA No. 17,477 Alexander A. Baehr, WSBA No. 25,320 DORSEY & WHITNEY LLP U.S. Bank Centre 1420 Fifth Avenue, Suite 3400 Seattle, WA 98101 P: 206.903.8800
For Plaintiff Glud & Marstrand A/S: Gerald Levy Richard H. Brown PITNEY HARDIN LLP 7 Times Square, 20th Floor New York, NY 10036 P: 212.297.5854 Lawrence D. Graham, WSBA No. 25,402 Douglas A. Grady, WSBA No. 36,100 BLACK LOWE & GRAHAM PLLC 701 Fifth Avenue, Suite 4800 Seattle, WA 98104 P: 206.381.3300
By: s/ Richard H. Brown Date: April 11, 2007
By: s/ Paul T. Meiklejohn Date: April 11, 2007
STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE - 2

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For Defendant Microsoft Corporation: Warren J. Rheaume, WSBA No. 13,627 Rima J. Alaily, WSBA No. 29,225 HELLER EHRMAN LLP 701 Fifth Avenue, Suite 6100 Seattle, WA 98104 P: 206.447.0900
By: s/ Rima J. Alaily Date: April 11, 2007
ORDER
IT IS SO ORDERED this _17__ day of April , 2007.
RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE
STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE - 3

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EXHIBIT 2
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EXHIBIT 3
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Glud & Marstrand A/S v. Viva Magnetics LTD Hong Kong Et. Al.

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Upon information and belief, Vivas infringement of claims of G&Ms 872

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Agreement, G&M has suffered damages and other harm.

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together with prejudgment and post-judgment interest;

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Actual damages suffered by G&M as a result of Vivas unlawful conduct, in

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By: s/ Richard H. Brown Date: April 11, 2007

By: s/ Paul T. Meiklejohn Date: April 11, 2007

STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE - 2

By: s/ Rima J. Alaily Date: April 11, 2007

IT IS SO ORDERED this _17__ day of April , 2007.

RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE

STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE - 3

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