P S Products v. Activision - Complaint

7/28/2019 P S Products v. Activision - Complaint

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' . IN THE UNITED STATES DISTRICT COURT

Frtr-oE A s H ~ , . P J ~ ~ IW1-, c ~ u , 11p' ' ' " ! ~ K n N S A SJUN 06 2013

FOR THE EASTERN DISTRICT OF R K A ~ W. M c f ~ ~ A C K , CLERKd!ficL.ERKP. S. PRODUCTS, INC., and

BILLY PENNINGTON, Individually PLAINTIFFS

v. Civil Action No.4. \3 w 7:>4a \ < ~ \ SACTIVISION BLIZZARD, INC.,ACTIVISION PUBLISHING, INC., andTREYARCH CORPORATION.

This case assigned to District u d g ~ \(and to Magistrate Judge . l , e w ~

DEFENDANT

COMPLAINT FOR PATENT INFRINGEMENTTO THE HONORABLE UNITED STATES DISTRICT COURT:

COMES NOW the Plaintiffs, P.S. Products, Inc., and Mr. Billy Pennington, individually,hereafter "Plaintiffs," by and through its attorney, Chris H. Stewart of the Stewart Law Firm,files this Complaint against the Defendants, Activision Blizzard, Inc., Activision Publishing,Inc., and Treyarch.Corporation, hereafter "Defendants," herein states:

JURISDICTION AND VENUE1. This Court retains subject matter jurisdiction as patent infringement raises a

federal question and is proper under 28 U.S.C. 1331.2. Pursuant to 28 U.S.C. 1391, venue in this suit lies in the Eastern District of

Arkansas because the actions which gave rise to the claims presented in this complaint occurredin Little Rock, Arkansas, within the Eastern District of Arkansas.

3. Additionally, the Eastern District of Arkansas has personal jurisdiction of theDefendants. Defendants have maintained substantial, continuous and systematic contacts withthe state of Arkansas through its business dealings with customers. Defendants marketed its

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products to retail customer in the state of Arkansas. Specifically, the Defendants havecommitted acts of infringement in violation of35 U.S.C. 271 by offering for sale and providingto customers in the state ofArkansas the video game Call ofDuty, Black Ops II., which containsillegal images of the Plaintiffs' United States Letters Patent No. US D561, 294 S. Call ofDuty,Black Ops II was the highest revenue producing video game in 2012 and the Defendants shouldreasonably expect to be subject to the Courts in the state of Arkansas. Moreover, ActivisionBlizzard, Inc., exercises sufficient control over Activision Publishing, Inc, and TreyarchCorporation.

4. Additionally, The Eastern District of California has personal jurisdiction of theDefendants because, among other things, Defendants is engaged in tortuous conduct within thestate of Arkansas and in this District, including placing into commerce products that containillegal images that embody the Plaintiffs' patent.

PARTIES RELEVANT TOPLAINTIFFS'COMPLAINT FOR PATENT INFRINGEMENT

5. This action is brought by P.S. Products, Inc., and its president, Mr. BillyPennington, manufacturers of stun guns and other personal security devices, organized within thestate ofArkansas with its principal headquarters at 3120 Joshua Street, Little Rock, AR 72204.

6. The Defendant, Activision Blizzard, Inc., is a corporation organized existing inthe state of Delaware with its principal place of business at 3100 Ocean Park Boulevard, SantaMonica, California with business activities throughout the United States, on the World WideWeb and specifically in the state of Arkansas.

7. The Defendant, Activision Publishing, Inc., is a corporation organized existing inthe state of Delaware with its principal place of business at 3100 Ocean Park Boulevard, Santa

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Monica, California with business activities throughout the United States, on the World WideWeb and specifically in the state ofArkansas.

8. The Defendant, Treyarch Corporation is a corporation organized existing in thestate of Delaware with its principal place of business at 3420 Ocean Park Boulevard, SantaMonica, California with business activities throughout the United States, on the World WideWeb and specifically in the state ofArkansas.

FACTS APPLICABLE TO CLAIMS INPLAINTIFFS'COMPLAINT FOR PATENT INFRINGEMENT

9. The Plaintiffs specialize in the manufacture and distribution of stun guns, stundevices, gun cleaning kits, and other personal protection devices.

10. The Plaintiffs market and sell its patented products through trade specialty shows,sales associates, retail stores, catalogs and through internet distribution throughout the UnitedStates.

11. On February 5, 2008, United States Letters Patent No. US D561, 294 S, (hereafter"US D561, 294 S") was issued to the Plaintiffs for a design invention for a stun gun.

12. The Plaintiffs have owned the patent No. US D561, 294 S throughout the periodof the Defendants infringing acts and still owns the patent.

13. The Plaintiffs' products are one of a kind.14. The Plaintiffs' designs are its own intellectual property. No goods of this design

existed prior to the Plaintiffs' designs and patents.15. The Plaintiffs are the only holder of patents on products of this kind in the United

States.16. The Plaintiffs' product, the Zap Blast Knuckle embodies the US D561, 294 S

design patent.

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17. When the Zap Blast Knuckle is operated by a user it produces a 950,000 volt

electrical shock.18. A user holds the Zap Blast Knuckle as if holding a pair of brass knuckles.19. The Zap Blast Knuckle is one of the Plaintiffs most sought after and sold

products.20. The Plaintiffs have complied with the statutory requirement of placing a notice of

the Letters of Patent on all Stun Guns.21. On information and belief the Plaintiffs learned that the Defendants' video game,

Call of Duty, Black Ops IL for platforms, Xbox, PlayStation 3, Wii and MICROSOFTWINDOWS, contain illegal images that embody the Plaintiffs' US D561, 294 S patent.

22. On information and belief, Activision Blizzard, Inc., is a worldwide online, PC,console, handheld and mobile video game publisher and transacts substantial business, eitherdirectly or through their agents on an ongoing basis in this judicial district.

23. On information and belief, Activision Publishing, Inc., 1s a wholly ownedsubsidiary of Activision Blizzard, Inc., and transacts substantial business, either directly orthrough their agents on an ongoing basis in this judicial district.

24. On information and belief, Treyarch Corporation is a wholly owned subsidiary ofActivision Blizzard, Inc., and transacts substantial business, either directly or through theiragents on an ongoing basis in this judicial district.

25. On information and belief, Activision Publishing, Inc., has offered and sold, andcontinues to offer and sell, in this judicial district the video game Call ofDuty, Black Ops II.

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26. On information and belief, Activision Blizzard, Inc., is actively involved in the

management and control of Activision Publishing, Inc., pertaining to the offer for sale and sale ofthe video game Call ofDuty, Black Ops II.

27. On information and belief, Activision Publishing, Inc., holds itself out as theowner of the video game Call ofDuty, Black Ops II and its intellectual property.

28. On information and belief, Treyarch Corporation holds itself out as the developerof the video game Call ofDuty, Black Ops II and its intellectual property.

29. On information and belief, Activision Blizzard, Inc., represents ActivisionPublishing, Inc., to be one of its operating segments and that the Call of Duty, Black Ops IIfranchise has generated over $1 billion in revenues to date.

30. On information and belief, the Defendants' video game, Call ofDuty, Black OpsII was the highest grossing sold video game in 2012.

31. Activision Blizzard, Inc., Activision Publishing, Inc., and Treyarch Corporationare collectively referred to herein as "Defendants," and unless specifically stated otherwise, theacts complained of herein were committed by, and on behalf, and/or for the benefit of all of theDefendants.

32. The Defendants have sold and continue to sell Call of Duty, Black Ops IL forplatforms, Xbox, PlayStation 3, Wii and MICROSOFT WINDOWS, hereafter, ("platforms") thatcontain illegal images that embody the Plaintiffs' US D561, 294 S patent at retail locations andon the world wide web throughout the United States.

33. In the video game Call ofDuty, Black Ops II on and in all platforms a player, viaan avatar, may access weapons called the Combat Suppression Knuckles or Galvaknuckles viaicons that are illegal images that embody the Plaintiffs' US D561, 294 S patent.

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34. Additionally, the weapons, Combat Suppression Knuckles or Galvaknuckles, that

a player may access through the icons are an illegal copy of the Plaintiffs' US D561, 294 Spatent.

35. In the video game Call ofDuty, Black Ops II when a player via an avatar, uses theweapons called Combat Suppression Knuckles or Galvaknuckles it emits an electrical shockrepresenting in reality the shock volts produced by the Plaintiffs' product Zap Blast Knucklethat embodies the Plaintiffs' US D561, 294 S patent.

36. In the campaign mode of Call ofDuty, Black Ops II, these knuckles appear in thelevels "Karma" and "Odysseus."

37. In the campaign mode of Call ofDuty, Black Ops II, a player may use the accesskit perk on these levels, an icon will appear indicating there is a weapons cache available. Afteropening the case, the player will immediately see illegal images that embody the Plaintiffs' USD561, 294 S patent.

38. The Combat Suppression Knuckles also appear in the "strike force" portions ofthe campaign.

39. Galvaknuckles must be purchased in zombie mode. In the game play a playermay acquire the Galvaknuckles by an access through icons that are an illegal copy of thePlaintiffs' product Zap Blast Knuckle that embodies the Plaintiffs' US D561, 294 S patent.

40. The icons that are an illegal copy of the Plaintiffs' product Zap Blast Knucklethat embodies the Plaintiffs' US D561, 294 S patent are found in each of the zombie levels:Tranzit, Farm, Town, Nuketown Zombies, and Die Rise.

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' ' 41. Illegal images that embody the Plaintiffs' US D561, 294 S are contained in the

Defendants' video game Call of Duty, Black Ops II for platform Xbox stock-keeping unitnumber 511997 5

42. Illegal images that embody the Plaintiffs' US D561, 294 S are contained in theDefendants' video game Call of Duty, Black Ops II for platform PlayStation 3 stock-keepingunit number 5119939 .

43. Illegal images that embody the Plaintiffs' US D561, 294 S are contained in theDefendants' video game Call ofDuty, Black Ops II for platform Wii stock-keeping unit number6847331.

44. Illegal images that embody the Plaintiffs' US D561, 294 S are contained in theDefendants' video game Call of Duty, Black Ops II for platform MICROSOFT WINDOWSstock-keeping unit number 5120025.

45. The Defendants' actions have violated 35 U.S.C. 271.46. The Defendants, intentionally, willfully, and wantonly violated 35 U.S.C. 271.47. The Defendants without authority placed in the stream of commerce and offered

to sell, the video game Call ofDuty, Black Ops II which contains illegal images that embody thePlaintiffs' US D561, 294 S patent at retail locations and on the world wide web throughout theUnited States.

48. The Defendants without a licensed from the Plaintiffs placed in the stream ofcommerce and offered to sell, the video game Call ofDuty, Black Ops II which contains illegalimages that embody the Plaintiffs' US D561, 294 S patent at retail locations and on the worldwide web throughout the United States.

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49. The Defendants have infringed and are still infringing the Letters of Patents Nos.

US D561, 294 S by selling the video game Call of Duty, Black Ops II which contains illegalimages that embody the Plaintiffs' US D561, 294 S patent at retail locations and on the worldwide web throughout the United States and the Defendants will continue to do so unless enjoinedby this Court.

50. The Defendants have been on constructive notice No. US D561, 294 S patent byat least as early as February 5, 2008 when the patent was issued. Nevertheless, the Defendantshave infringed and continues to infringe the US D561, 294 S patent.

COUNT IPATENT INFRINGEMENT51. Plaintiffs incorporate by reference each and every averment contained m

paragraphs 1 through 53 of the Plaintiffs' Complaint, inclusive.52. On February 5, 2008 United States Patent No. US D561, 294 S was duly and

legally issued to the Plaintiffs for a design invention for a "Stun Gun." The Plaintiffs are the soleand exclusive owner of the US D561, 294 S patent and holds all rights and interests in the USD561, 294 S patent. Among other things, the Plaintiffs holds the sole and exclusive rights tomanufacture, use, sell, import and offer to sell under the US D561, 294 S patent and the right toenforce the US D561, 294 S patent against alleged infringers.

53. The Plaintiffs have complied with any applicable statutory notice requirements byposting notice of the US D561, 294 S patent on its product, the Zap Blast Knuckle, thatembodies the US D561, 294 S patent.

54. The Defendants have infringed and continues to infringe on the US D561, 294 Spatent by its manufacture, use, sale, importation, licensing and/or offer for sale of its Defendants'video game Call ofDuty, Black Ops II for platforms, Xbox, Wii, MICROSOFT WINDOWS and

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Playstation 3, that contain illegal images that embody the Plaintiffs' US D561, 294 S patent. TheDefendants also have infringed and continues to infringe one or more claims of the US D561,294 S patent by contributing to and actively inducing others to use, sell, import, and/or offer forsale its video game Call of Duty, Black Ops II for platforms, Xbox, Wii, MICROSOFTWINDOWS and Playstation 3, that contain illegal images that embody the Plaintiffs' US D561,294 S patent. The Defendants are liable for its infringement of the US D561, 294 S patentpursuant to 35 U.S.C. 271.

55. The Defendants acts of infringement have caused damage to the Plaintiffs, and thePlaintiffs are entitled to recover from the Defendants the damages they have sustained as a resultof the Defendants' wrongful acts in an amount subject to proof at trial. The Plaintiffs haveowned the US D561, 294 S patent throughout the period of the Defendants' infringing acts. TheDefendants' infringement of the Plaintiffs' exclusive rights will continue to damage thePlaintiffs, causing irreparable harm for which there is no adequate remedy at law, unlessenjoined by this Court.

56. The Defendants have been on constructive notice No. US D561, 294 S patent byat least as early as February 5, 2008 when the patent was issued. Nevertheless, the Defendantshave infringed and continues to infringe the US D561, 294 S patent.

57. Each such infringement by Defendants constitutes a separate and distinct act ofinfringement. Defendants' acts of infringement are willful, in disregard of and with indifference

to the rights of the Plaintiffs.58. As a direct and proximate cause of the infringement by Defendants, the Plaintiffs

are entitled to reasonable royalties that may be proper under 35 U.S.C. 284 in amounts to beproven at trial, entitlement to the Defendants' profits that may be proper under 35 U.S.C. 289

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in amounts to be proven at trial, enhanced damages as may be proper under 35 U.S.C. 284 anda reasonable attorney's fee pursuant to 35 U.S.C. 285.Therefore, the Plaintiffs demand:

PRAYER FOR RELIEFWHEREFORE, Plaintiffs prays for judgment against Defendants, as follows:A. Judgment against the Defendants declaring that the Defendants' actions directly

infringe on the Plaintiffs' patents No. US D561, 294 S;B. Plaintiffs' reasonable royalties that may be proper under 35 U.S.C. 284 in

amounts to be proven at trial;C. Plaintiffs entitlement to the Defendants' profits with respect to each patent

infringement in amounts to be proven at trial;D. Enhanced damages that may be proper under 35 U.S.C. 284 with respect to each

patent infringement for the Defendants' willful infringement;E. A declaration that the Plaintiffs' case against the Defendants is an exceptional

case pursuant to 35 U.S.C. 285 and therefore subject to attorneys' fees;F. An award of costs and attorneys' fee to the Plaintiffs; and,G. Such other relief as the Court deems just and reasonable.

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. DEMAND FOR A JURY TRIAL

Plaintiffs demand a trial by jury as to all claims averred he n that are triable by jury.JbDated: June5, 2013

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sBy: Chris H. StewArk. Bar No. 03-222Attorney for Plaintiffs904 Garland StreetLittle Rock, AR 72201Phone: 501-353-1364Fax: 501-353-1263Email: [email protected]



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CIVIL COVER SHEET S 44 (Rev. 12/12)The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleading;s or other papers as required by law, except asprovided by local rules of cour t Thts form, approved by the Judtctal Conference of the Umted States m September 1974, IS requtred for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM)I. (a) PLAINTIFFSP.S. Products, Inc., & Billy Pennington, Individually. DEFENDANTSActivision Blizzard, Inc., Activision Publishing, Inc. & TreyarchCorporation

(b) County of Residence of First Listed Plaintiff ,_P_.,.u,_.la.,s,k,_i_______ County of Residence of First Listed Defendant(EXCEPT IN US PLAINTIFF CASES)

(c) Attorneys (Firm Name, Address, and Telephone Number)Stewart Law Firm904 Garland StreetLittle Rock, AR 72201 PH: 501-353-1364

(IN U.S PLAINTIFF CASES ONLY)NOTE: IN LAND CONDEMNAT ION CASES, USE THE LOCATION OFTHE TRACT OF LAND INVOLVED.Attorneys (I fKnown)

II . BASIS OF JURISDICTION (Place an "X"tnOneBoxonty) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaint0 I US . Govenunent

Plaintiff

0 2 US . GovenunentDefendant

~ 3 Federal Question(U S Government Not a Party)

0 4 Diversity(Indicate Citizenship o(Parties in Item Ill)

IV NATURE OF SUIT (Place an "X" in One Box Only)[fD '. , .>&: .... :>li- i!E J#-Mi ' t .. ,>! ; l f /0 II 0 Insurance PERSONAL INJURY PERSONAL INJURY0 120 Marine 0 310 Airplane 0 365 Persona! Injury 0 130 Miller Act 0 315 Airplane Product Product Liability0 140 Negotiable Instrument Liability 0 367 Health Care/0 150 Recovery of Overpayment 0 320 A s s a u l ~ Libel & Phammceutical& Enforcement of Judgment Slander Personal Injwy0 151 Medicare Act 0 330 Federal Employers' Product Liability0 152 Recovery of Defaulted Liability 0 368 Asbestos Personal

Student Loans 0 340 Marine Injury Product(Excludes Veterans) 0 345 Marine Product Liability

(For Diversity Cases Only) and One Box for Defendant)PTF DEF PTF DEF

Citizen of This State 0 I 0 I Incorporated or Principal Place 0 4 0 4

Citizen of Another State 0 2

Citizen or Subject of a 0 3

of Business In This State0 2 Incorporated and Principal Place

of Business In Another State0 3 Foreign Nation

0 5 0 5

0 6 0 6

ALTYL. . ... .;,, - m r ~0 625 Drug Related Seizure 0 422 Appeal 28 USC 158 0 375 False Claims Act

ofProperty 21 USC 881 0 423 Withdrawal 0 400 State Reapportionment0 690 Other 28 usc 157 0 41 0 Antitrust0 430 Banks and Banking0 450 Commerce0 820 Copyrights 0 460 Deportation830 Patent 0 470 Racketeer Influenced and0 840 Trademark Corrupt Organizations0 480 Consumer Credit

, ' i , : IiA:BOR. . . ~ 0 ; e : 0 490 Cable/Sat TV0 153 Recovery of Overpayment Liability PERSONAL PROPERTY 0 710 Fair Labor Standards 0 861 HIA (!395ft) 0 850 Securities/Commodities!ofVeteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud Act 0 862 Black Lung (923)0 160 Stockholders' Suits 0 355 Motor Vehicle 0 371 Truth in Lending 0 720 Labor/Management 0 863 DIWC/DIWW (405(g)) 00 190 Other Contract Product Liability 0 3 80 Other Personal Relations 0 864 SSID Title XVI 00 195 Contract Product Liability 0 360 Other Personal Property Damage 0 740 Railway Labor Act 0 865 RSI (405(g)) 00 196 Franchise Injury 0 385 Property Damage 0 751 Family and Medical 00 362 Personal Injury- Product Liability Leave Act

Medical Malpractice 0 790 Other Labor Litigation 0'."'" ' ' 0 791 Employee Retirement " :filfc!ITS 00 210 Land Condemnation 0 440 Other Civil Rights Habeas Corpus: Income Security Act 0 870 Taxes (U.S. Plaintiff0 220 Foreclosure 0 441 Voting 0 463 Alien Detainee or Defendant)0 230 Rent Lease & Ejectment 0 442 Employment 0 510 Motions to Vacate 0 871 IRS-Third Party 00 240 Torts to Land 0 443 Housing! Sentence 26 usc 76090 245 Tort Product Liability Accommodations 0 530 General0 290 All Other Real Property 0 445 An1er. w/Disabilities- 0 535 Death Penalty BJi#.:L. .:2$1!:

Employment Other: 0 462 Naturalization Application0 446 Amer. w/Disabilities- 0 540 Mandamus & Other 0 465 Other ImmigrationOther 0 550 Civil Rights Actions0 448 Education 0 555 Prison ConditionD 560 Civil Detain ee-

Conditions ofConfinement

V. ORIGIN (Place an "X"inOneBoxOnly))ii( l Original 0 2 Removed from

Proceeding State Court0 3 Remanded from

Appellate Court0 4 Reinstated or

Reopened0 5 Transferred from

Another District(

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P S Products v. Activision - Complaint