UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION LUCKY LITTER, LLC, Plaintiff,

vs. APPLICA CONSUMER PRODUCTS, INC., AND PETSMART, INC. Defendants.

Civil Action No.

JURY TRIAL DEMANDED

ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT AND DEMAND FOR JURY TRIAL Plaintiff Lucky Litter, LLC (hereinafter, Lucky Litter) files this Original Complaint for Patent Infringement and Demand for Jury Trial, complaining of Applica Consumer Products, Inc. (Applica) and Petsmart, Inc. (Petsmart), and would respectfully show the Court as follows: Parties 1. Plaintiff Lucky Litter is a limited liability company organized and existing under

the laws of Delaware, with an office located at 2 N. Riverside Plaza, Chicago, Illinois 60606. 2. On information and belief, defendant Applica is a corporation organized under the

laws of Florida with an office located at 3633 Flamingo Rd., Miramar, Florida 33027. Applica offers to sell disposable kitty litter-related products in the United States through its web site at www.littermaid.com and through certain retailers, including within this district.

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On information and belief, defendant Petsmart, Inc. is a corporation organized

under the laws of Delaware with an office located in Phoenix, Arizona. Petsmart offers to sell disposable kitty litter-related products in the United States through its web site at www.petsmart.com and through its retail stores, including within this district.

Jurisdiction and Venue 4. Jurisdiction is proper in this Court under 28 U.S.C. 1338(a) and 15 U.S.C.

1121 because these claims arise under the laws of the United States relating to patents, 35 U.S.C. 100, et seq. and/or the Lanham Act, 15 U.S.C. 1051, et seq. On information and belief, venue is proper in this judicial district under 28 U.S.C. 1391 and 28 U.S.C. 1400(b) because defendants reside in this district for purposes of jurisdiction. Count I: Patent Infringement (659 Patent) 5. On October 4, 2011, U.S. Patent No. 8,028,659 (the 659 Patent) was duly and

legally issued for an invention entitled Self-Cleaning Litter Box. A copy of the first page of the 659 Patent is attached hereto as Exhibit A. Lucky Litter is the assignee of all rights in the 659 Patent. 6. On information and belief, Applica is infringing, contributing to the infringement

of, and/or inducing infringement by its customers of, the 659 Patent in the State of Texas, in this judicial district, and elsewhere in the United States by making, using, importing, offering to sell, and/or selling in the United States self-cleaning litter boxes and/or litter trays that embody the inventions claimed in the 659 Patent, including but not limited to the ScoopMaid and CrystalMaid products.

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On information and belief, Petsmart is infringing, contributing to the infringement

of, and/or inducing infringement by its customers of, the 659 Patent in the State of Texas, in this judicial district, and elsewhere in the United States by offering to sell, and/or selling in the United States self-cleaning litter boxes and/or litter trays that embody the inventions claimed in the 659 Patent, including but not limited to the ScoopMaid and CrystalMaid products supplied to Petsmart by Applica. 8. Defendants infringement of the 659 Patent has been without license from Lucky

Litter and in violation of Lucky Litters patent rights. It is believed that Defendants will continue to infringe Lucky Litters patent rights unless enjoined by this Court. 9. As a result of Defendants infringement of the 659 Patent, Lucky Litter has been

damaged and will continue to be damaged in an amount to be determined at trial. Lucky Litter has suffered and will continue to suffer irreparable injury unless Defendants infringing activities are enjoined. Count II: Patent Infringement (213 Patent) 10. On July 27, 2010, U.S. Patent No. 7,762,213 (the 213 Patent) was duly and

legally issued for an invention entitled Self-Cleaning Litter Box. A copy of the 213 Patent is attached hereto as Exhibit B. Lucky Litter is the assignee of all rights in the 213 Patent. 11. On information and belief, Applica has been infringing, contributing to the

infringement of, and/or inducing infringement by its customers of, the 213 Patent in the State of Texas, in this judicial district, and elsewhere in the United States by making, using, importing, offering to sell, and/or selling in the United States self-cleaning litter boxes and/or litter trays that

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embody the inventions claimed in the 213 Patent, including but not limited to the ScoopMaid and CrystalMaid products. Applicas infringement is continuing. 12. On information and belief, Petsmart has been infringing, contributing to the

infringement of, and/or inducing infringement by its customers of, the 213 Patent in the State of Texas, in this judicial district, and elsewhere in the United States by offering to sell, and or selling in the United States self-cleaning litter boxes and/or litter trays that embody the inventions claimed in the 213 Patent, including but not limited to the ScoopMaid and CrystalMaid products supplied to Petsmart by Applica. Petsmarts infringement is continuing. 13. Defendants infringement of the 213 Patent has been without license from Lucky

Litter and in violation of Lucky Litters patent rights. Petsmart received notice from counsel for Lucky Litter by letter delivered on August 10, 2010 informing Petsmart of its infringement of the 213 Patent. Such infringement by Petsmart has thus been willful. It is believed that Defendants will continue to infringe Lucky Litters patent rights unless enjoined by this Court. 14. As a result of Defendants infringement of the 213 Patent, Lucky Litter has been

damaged and will continue to be damaged in an amount to be determined at trial. Lucky Litter has suffered and will continue to suffer irreparable injury unless Defendants infringing activities are enjoined. Count III: False Advertising (Lanham Act 1125) 15. On information and belief, Petsmart managers and/or employees have made the

following statements when discussing Lucky Litter and its kitty litter products with visitors to Petsmart retail stores:

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Lucky Litter is going or has gone out of business; ScoopFree litter cartridges are no longer being produced; ScoopFree is having difficulties shipping products; The ScoopMaid litter cartridge is merely a packaging change from the ScoopFree litter cartridge; The ScoopMaid litter cartridge is an improved version of the ScoopFree cartridge; and Something happened to ScoopFree and Littermaid took over.

16.

Petsmarts statements referenced above constitute false and/or misleading

representations of fact in violation of 15 U.S.C. 1125(a)(1). Such conduct by Petsmart has been willful. 17. Lucky Litter has been and will continue to be irreparably harmed by Petsmarts

aforementioned acts of unfair competition, and, unless enjoined by the Court, Petsmarts wrongful acts will continue. There is no adequate remedy at law for the harm caused by the acts of unfair competition alleged herein. Prayer WHEREFORE, Plaintiff Lucky Litter, LLC prays that this Court: a. Enter judgment for Lucky Litter that Defendants infringe the 659 Patent and 213 Patent; b. Enter a preliminary and permanent injunction enjoining Defendants, and their respective officers, directors, agents, representatives, employees, attorneys, and all those in active concert or participation with them who receive actual notice of the judgment by personal service or otherwise, against further infringement of the 659 Patent and 213 Patent, and further false or misleading statements by Petsmart;

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c.

Award damages to Lucky Litter suffered as a result of the infringement of the 659 Patent and 213 Patent by Defendants including but not limited to the lost profits of Lucky Litter, but in no event less than a reasonable royalty; and lost profit damages for Petsmarts false and misleading statements;

d.

Award damages to Lucky Litter in an amount equal to three times the amount of damages found to compensate Lucky Litter for any act of infringement by Defendants that is determined to be willful pursuant to 35 U.S.C. 284 or any act of unfair competition determined to be willful pursuant to 15 U.S.C. 1117;

e.

Award Lucky Litter its reasonable attorney fees in prosecuting this action should this case be determined to be exceptional due to Defendants conduct pursuant to 35 U.S.C. 285, and on the basis of 15 U.S.C. 1117;

f.

Award prejudgment and post judgment interest against Defendants as allowed by law;

g.

Award Lucky Litter its costs and expenses in bringing and prosecuting this action; and

h.

Award Lucky Litter such other and further relief that this Court may deem just and proper.

PLAINTIFF DEMANDS A TRIAL BY JURY.

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Dated: October 4, 2011 Respectfully submitted,

/s/ Theodore G. Baroody David H. Harper State Bar No. 09025540 David.Harper@haynesboone.com John R. Emerson State Bar No. 24002053 Russ.Emerson@haynesboone.com Theodore G. Baroody State Bar No. 01797550 Ted.Baroody@haynesboone.com HAYNES AND BOONE, L.L.P. 2323 VICTORY AVENUE, SUITE 700 DALLAS, TEXAS 75219 TEL: 214-651-5000 FAX: 214-651-5940 ATTORNEYS FOR PLAINTIFF LUCKY LITTER, LLC

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