Case 4:11-cv-04289 Document 1

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION NEW WORLD PASTA COMPANY Plaintiff, v.

Civil Action No. ________________

AMERICAN ITALIAN PASTA COMPANY Defendant.

JURY TRIAL DEMANDED

PLAINTIFF NEW WORLD PASTA COMPANYS ORIGINAL COMPLAINT Plaintiff NEW WORLD PASTA COMPANY files this Original Complaint against Defendant AMERICAN ITALIAN PASTA COMPANY, alleging as follows:

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NATURE OF THE ACTION 1. This is an action for patent infringement based on the Patent Laws of the United

States, 35 U.S.C. 1 et seq. 2. This action arises out of the Defendant making, using, selling, offering for sale

and/or importing calcium fortified pasta products which infringe upon at least one of Plaintiffs issued U.S. Patents.

JURISDICTION AND VENUE 3. This is an action for infringement of a United States patent, arising under the

patent laws of the United States of America, Title 35 of the United States Code, 271, et. seq. Jurisdiction of the Court is founded on Title 35 United States Code and on Title 28 United States Code, particularly 28 U.S.C. 1331 and 1338(a). 4. This Court has personal jurisdiction over the Parties, and venue is proper in this

District under 28 U.S.C. 1391(b) & (c) and 28 U.S.C. 1400(b).

THE PARTIES 5. Plaintiff NEW WORLD PASTA COMPANY (NEW WORLD) is a corporation

that is organized under the laws of the State of Delaware, with its principal place of business at 85 Shannon Road, Harrisburg, Pennsylvania 17112. NEW WORLD is a subsidiary of Ebro Foods, S.A. 6. Defendant AMERICAN ITALIAN PASTA COMPANY (AIPC) is a Delaware

corporation with its principal offices at 4100 N. Mulberry, Suite 200, Kansas City, Missouri 64116. 2

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7.

AIPC manufactures and distributes pasta and related products throughout the

United States under a variety of brands and trademarks. Defendant is currently doing business in this judicial district by selling its pasta products into this district, including at least some of the products that form the basis of Plaintiffs claims herein. Defendants pasta products compete directly with NEW WORLDs pasta products.

FACTUAL BASIS 8. NEW WORLD is a worldwide company that manufactures and distributes a wide

variety of food products, including pasta products. 9. On August 31, 1999, United States Patent No. 5,945,144 (the 144 Patent) was

duly and legally issued to David H. Hahn, Michael L. Nolt, and Frank P. Paris, for an invention entitled Calcium Fortified Pasta and Process of Making. Through assignments from the inventors, NEW WORLD PASTA COMPANY is the owner by assignment of all rights, title and interest in the 144 Patent, with the exclusive right to enforce the patent against infringers and to sue for and collect damages for all relevant times, including the right to assert the present cause of action. 10. Defendant AIPC manufactures, makes, has made, causes to be made, uses,

practices, imports, provides, supplies, distributes, sells and/or offers for sale pasta products that infringe, directly or indirectly, one or more claims in the 144 Patent. For example, and without limitation: 10.1. AIPC makes, uses, sells and/or offers for sale a product marketed as Wegmans

Super Pasta that includes calcium. Reproduced below is a photograph of an exemplary pasta product from AIPC. An annotation has been added to identify the Calcium

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reference on the package.

10.2.

AIPC makes, uses, sells and/or offers for sale a product marketed as

Wegmans Super Pasta that is promoted to incorporates super nutrition by providing 20% daily value of calcium (and vitamin D), as compared with traditional pasta which 4

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provides 0% daily value.

Reproduced below is a photograph of an exemplary pasta

product from AIPC. An annotation has been added to identify the 20% daily value reference on the package.

11.

One or more of these acts of infringement have been done with knowledge of the

144 Patent and without authorization from NEW WORLD. 5

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12.

The preceding allegations are likely to have additional evidentiary support after a

reasonable opportunity for further investigation and discovery.

COUNT I INFRINGEMENT OF U.S. PATENT NO. 5,945,144 13. The preceding paragraphs of this Complaint are incorporated herein by reference

as if fully set forth. 14. At all times relevant to this action, NEW WORLD has complied with the notice

provisions of 35 USC 287 as they concern the 144 patent. 15. A reasonable opportunity for further investigation and discovery will likely show

that the AIPC defendant has directly and/or indirectly infringed one or more claims of the 144 Patent and have induced and/or contributed to the infringement of one or more claims of the 144 Patent by others in the United States and within this District, and will continue to do so unless enjoined by this Court. 16. A reasonable opportunity for further investigation and discovery will likely show

that one or more of these acts of infringement have been willful and in deliberate disregard of the 144 Patent and that this is an exceptional case under 35 U.S.C. 285. 17. NEW WORLD has been damaged by Defendants infringement and will be

irreparably injured unless such infringement is enjoined by this Court as provided by 35 U.S.C. 283.

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PRAYER WHEREFORE, Plaintiff prays that: (a) AIPC be adjudged and decreed to have infringed the 144 Patent and that such

infringement has been willful and deliberate; (b) Defendant be ordered to pay actual damages to NEW WORLD, but not less than a

reasonable royalty, by reason of Defendants infringement and inducement of infringement of the 144 Patent together with prejudgment interest, costs and increased damages pursuant to 35 U.S.C. 284; (c) A preliminary injunction against the Defendant AIPC, its officers, agents,

servants and employees, and all entities and individuals acting in concert with them be entered to restrain any further infringement of the 144 Patent during the pendency of this case; (e) A permanent injunction against the Defendant AIPC, its officers, agents, servants

and employees, and all entities and individuals acting in concert with them be entered to permanently restrain any further infringement of the 144 Patent; (f) This case be declared an exceptional case within the meaning of 35 U.S.C.

285 and reasonable attorney fees and costs be awarded to NEW WORLD; (g) An award be granted of all reasonable attorney fees allowed by statute, costs, pre-

judgment interest, post-judgment interest and any other further relief as may be just and proper; and (h) NEW WORLD be granted such other and further relief as the Court may deem

proper under the circumstances.

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DEMAND FOR JURY TRIAL NEW WORLD, in accordance with Federal Rules of Civil Procedure Rule 38(b), demands a jury trial as to all issues properly triable by a jury.

Respectfully submitted, Date: December 9, 2011 By: /s/ Michael O. Sutton Michael O. Sutton Texas State Bar No. 19535300 Southern District No. 5941 LOCKE LORD LLP 600 Travis Street 2800 Chase Tower Houston, TX 77002-3095 Phone: (713) 226-1327 Facsimile: (713) 223-3717 ATTORNEY FOR PLAINTIFF NEW WORLD PASTA COMPANY

Of Counsel: Tanya L. Chaney State Bar No. 24036375 Southern District No. 33555 Monte R. Rhodes State Bar No. 24076643 LOCKE LORD LLP 600 Travis Street 2800 Chase Tower Houston, TX 77002-3095 Phone: (713) 226-1326 Facsimile: (713) 223-3717