Case 1:18-Cv-01854-RGA Document 13 Filed 03/08/19 Page 1 of 13 Pageid #: 93
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Case 1:18-cv-01854-RGA Document 13 Filed 03/08/19 Page 1 of 13 PageID #: 93 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE GEMAK TRUST, Plaintiff, v. C.A. No. 18-1854-RGA CHURCH & DWIGHT CO., INC., JURY TRIAL DEMANDED Defendant. PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT Plaintiff GEMAK Trust (“GEMAK” or “Plaintiff”) files this First Amended Complaint for Patent Infringement against Church & Dwight Co., Inc. (“Church” or “Defendant”) and alleges as follows: THE NATURE OF THE ACTION 1. This is a civil action arising out of Church’s infringement of United States Patents Nos. 6,787,514 (“the ’514 Patent”) and 6,486,116 (“the ʼ116 Patent”) (collectively, “the Patents- in-Suit”) in violation of the Patent Laws of the United States, 35 U.S.C. § 1 et seq. THE PARTIES 2. Plaintiff GEMAK Trust is established under the laws of New Zealand, with an address at 7 California Drive, Wakefield Europort, Castleford, West Yorks, United Kingdom, WF10 5QH. 3. On information and belief, Defendant Church is a corporation organized and existing under the laws of Delaware, having a principal place of business at Princeton South Corporate Center, 500 Charles Ewing Blvd., Ewing, New Jersey 08628. Case 1:18-cv-01854-RGA Document 13 Filed 03/08/19 Page 2 of 13 PageID #: 94 JURISDICTION AND VENUE 4. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a). 5. This Court has personal jurisdiction over Church because Church is incorporated in the State of Delaware and is, thus, a resident of the State. On information and belief, Church also conducts business in this judicial district, including offering to sell, selling, and importing infringing products in this district. 6. Upon further information and belief, Church has waived any challenge to personal jurisdiction in this District under Federal Rule of Civil Procedure 12(h)(1). See D.I. 9 (failing to assert a lack of personal jurisdiction in its first 12(b)(6) motion). 7. Venue is proper in this Court under 28 U.S.C. § 1400(b) because, among other reasons, Church is incorporated in Delaware, and thus it resides in this District. 8. Upon further information and belief, Church has waived any challenge to improper venue in this District under Federal Rule of Civil Procedure 12(h)(1). See D.I. 9 (failing to assert an improper venue defense in its first 12(b)(6) motion). BACKGROUND 9. While working in the industrial chemical and laundry industry in the late 1990s, inventor Gerald Thomas Hinton conceived of, developed, and patented a new detergent composition and monodose presentation—a water-dissolvable sachet or packet that included detergent percarbonate beads encapsulated by a specific blend of chemical compounds. 10. Church is a manufacturer of automatic dishwasher detergent products and laundry products, including monodose detergent products. 11. Church is a dominant player in the detergent industry with its Arm & Hammer® line of monodose detergent products. In its 2017 annual report, Church claims that its “Power 2 Case 1:18-cv-01854-RGA Document 13 Filed 03/08/19 Page 3 of 13 PageID #: 95 Brands,” which “generate over 80% of our revenues and profits” and include “ARM & HAMMER, TROJAN, OXICLEAN, VMS (L’IL CRITTERS and VITAFUSION), XTRA, FIRST RESPONSE, SPINBRUSH, ORAJEL, NAIR, BATISTE and WATERPIK” are “brands that consumers love and consequently are market leaders.” See Ex. 1. Church also claims that its Arm & Hammer products are in “[m]ore aisles in the grocery store than any other brand; A&H products are in 86% of U.S. households in America.” Id. In its 2018 third quarter review, Church reported that its “Consumer Domestic” net sales were $784.9 million, and “growth was led by ARM & HAMMER liquid and unit dose laundry detergent […] OXICLEAN stain fighters, and XTRA laundry detergent.” See Ex. 2. 12. On information and belief, Church makes, uses, sells, offers for sale, and imports monodose laundry detergent and monodose dishwasher detergent products including those described in detail below. On the Product Ingredient Disclosure Forms and labels for certain monodose Arm & Hammer® laundry and OxiClean® dishwasher detergent products, Church is identified as the distributor. A. The Infringing Products 13. Church manufactures, sells, offers to sell, and imports monodose detergent products, marketed under various trade names, including Arm & Hammer® and OxiClean®, that infringe one or more claims of the Patents-in-Suit. Church’s Arm & Hammer® 2-in-1 Power Pak Laundry Detergent Paks and OxiClean® Dishwasher Detergent Paks (“Infringing Products”) are two representative examples of Church’s infringing products. 14. Attached as Exs. 3-4 and 5-6 are photographs that fairly and accurately depict the product labels for Arm & Hammer® 2-in-1 Power Pak Laundry Detergent Paks and OxiClean® Dishwasher Detergent Paks, respectively. 3 Case 1:18-cv-01854-RGA Document 13 Filed 03/08/19 Page 4 of 13 PageID #: 96 15. Attached as Ex. 7 is the Product Ingredient Disclosure Form for Arm & Hammer® 2-in-1 Power Pak Laundry Detergent Paks. On information and belief, Church is not required to, and does not, list every chemical compound present in its product on the product’s Product Ingredient Disclosure Form. 16. The Infringing Products are laundry detergent products or dishwashing detergent products. See, e.g., Exs. 3-6. 17. The Infringing Products comprise a granulated percarbonate compound, specifically sodium percarbonate. See, e.g., Exs. 4, 6, and 7. 18. Certain of the Infringing Products are in tablet form. See, e.g., Exs. 3-6. 19. On information and belief, the Infringing Products comprise a percarbonate, specifically sodium percarbonate, and a blend encapsulating the percarbonate. On information and belief, the existence of a percarbonate and a blend encapsulating the percarbonate will be demonstrated by either documents in Church’s possession, custody, or control, or testing of the Infringing Products, or both. 20. On information and belief, the blend encapsulating the percarbonate in the Infringing Products contains a nonionic surfactant. Exhibit 7 shows that one representative Infringing Product contains C12-15 alcohols ethoxylated, a nonionic surfactant. See, e.g., Exs. 5 and 7. On information and belief, the existence of a nonionic surfactant in the blend encapsulating the percarbonate will be demonstrated by either documents in Church’s possession, custody, or control, or testing of the Infringing Products, or both. 21. On information and belief, the blend encapsulating the percarbonate in the Infringing Products also contains a sulfate, specifically sodium sulfate. On information and belief, the existence of a sulfate in the blend encapsulating the percarbonate will be demonstrated 4 Case 1:18-cv-01854-RGA Document 13 Filed 03/08/19 Page 5 of 13 PageID #: 97 by either documents in Church’s possession, custody, or control, or testing of the Infringing Products, or both. 22. On information and belief, the blend encapsulating the percarbonate in the Infringing Products also contains carboxymethyl cellulose. On information and belief, the existence of carboxymethyl cellulose in the blend encapsulating the percarbonate will be demonstrated by either documents in Church’s possession, custody, or control, or testing of the Infringing Products, or both. 23. On information and belief, the Infringing Products also contain sodium metasilicate. On information and belief, the existence of sodium metasilicate in the Infringing Products will be demonstrated by either documents in Church’s possession, custody, or control, or testing of the Infringing Products, or both. 24. On information and belief, at least one of the Infringing Products does not contain a zeolite. On information and belief, the lack of a zeolite in the Infringing Products will be demonstrated by either documents in Church’s possession, custody, or control, or testing of the Infringing Products, or both. 25. On information and belief, the Infringing Products do not contain a perborate. On information and belief, the lack of a perborate in the Infringing Products will be demonstrated by either documents in Church’s possession, custody, or control, or testing of the Infringing Products, or both. 26. On information and belief, the Infringing Products do not contain a phosphate. See, e.g., Exs. 4 and 6. On information and belief, the lack of a phosphate in the Infringing Products will be demonstrated by either documents in Church’s possession, custody, or control, or testing of the Infringing Products, or both. 5 Case 1:18-cv-01854-RGA Document 13 Filed 03/08/19 Page 6 of 13 PageID #: 98 27. On information and believe, the Infringing Products comprise 1% to 15% percarbonate. On information and belief, the Infringing Products will be demonstrated to comprise 1% to 15% percarbonate by either documents in Church’s possession, custody, or control, or testing of the Infringing Products, or both. 28. On information and belief, the Infringing Products are capable of being stored in a water-soluble PVA film packaging for at least nine months, and, when stored in PVA film, the PVA film is 20-80 microns thick. 29. The Infringing Products also contain a perfume. See, e.g., Ex. 7. 30. The Infringing Products also contain an enzyme. See, e.g., Exs. 4, 6, and 7. B. The Patents-In-Suit 31. On September 7, 2004, the ’514 Patent, titled “Detergent compositions comprising an encapsulated percarbonate compound,” was duly and legally issued by the United States Patent Office (“USPTO”) to inventor Gerald Thomas Hinton. A true and correct copy of the ’514 Patent is attached to this complaint as Exhibit 8. 32. On November 26, 2002, the ʼ116 Patent, titled “Detergent,” was duly and legally issued by the USPTO to inventor Gerald Thomas Hinton. A true and correct copy of the ʼ116 Patent is attached to this complaint as Exhibit 9.