Case: 1:16-cv-06097 Document #: 10 Filed: 06/10/16 Page 1 of 13 PageID #:105
`
`
`THE CHAMBERLAIN GROUP INC.,
`
`
`
`
`
`TECHTRONIC INDUSTRIES CO. LTD.,
`TECHTRONIC INDUSTRIES NORTH
`AMERICA, INC., ONE WORLD
`TECHNOLOGIES INC., OWT
`INDUSTRIES, INC., ET TECHNOLOGY
`(WUXI) CO. LTD., and RYOBI
`TECHNOLOGIES, INC.,
`
`
`
`
`
`
`v.
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`
`
`
`
`Civil Action No. 1:16-cv-06097
`
`The Honorable Thomas M. Durkin
`
`Magistrate Judge Sidney Schenkier
`
`
`
`
`
`
`
`Plaintiff,
`
`Defendants,
`
`
`
`
`
`
`DECLARATION OF MARIA ELENA STITELER IN SUPPORT OF PLAINTIFF’S
`MEMORANDUM IN SUPPORT OF ITS MOTION FOR PRELIMINARY INJUNCTION
`
`I, Maria Elena Stiteler, declare as follows:
`1.
`
`I am an attorney at the law firm of Fish & Richardson P.C., counsel of record in
`
`this action for Plaintiff, The Chamberlain Group, Inc. (“CGI”). I am a member of the Bar of the
`
`State of California and have been admitted Pro Hac Vice in this case. I have personal knowledge
`
`of the matters stated in this declaration and would testify truthfully to them if called upon to do
`
`so.
`
`2.
`
`I submit this declaration in support of CGI’s Motion for Preliminary Injunction
`
`barring the defendants from making, using, selling, offering for sale, or importing to the United
`
`States garage door openers that infringe U.S. Patent Nos. 7,635,966 (“the ’966 patent”) and
`
`7,224,275 (“the ’275 patent”).
`
`
`
`
`THE CHAMBERLAIN GROUP INC.,
`
`
`
`
`
`TECHTRONIC INDUSTRIES CO. LTD.,
`TECHTRONIC INDUSTRIES NORTH
`AMERICA, INC., ONE WORLD
`TECHNOLOGIES INC., OWT
`INDUSTRIES, INC., ET TECHNOLOGY
`(WUXI) CO. LTD., and RYOBI
`TECHNOLOGIES, INC.,
`
`
`
`
`
`
`v.
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`
`
`
`
`Civil Action No. 1:16-cv-06097
`
`The Honorable Thomas M. Durkin
`
`Magistrate Judge Sidney Schenkier
`
`
`
`
`
`
`
`Plaintiff,
`
`Defendants,
`
`
`
`
`
`
`DECLARATION OF MARIA ELENA STITELER IN SUPPORT OF PLAINTIFF’S
`MEMORANDUM IN SUPPORT OF ITS MOTION FOR PRELIMINARY INJUNCTION
`
`I, Maria Elena Stiteler, declare as follows:
`1.
`
`I am an attorney at the law firm of Fish & Richardson P.C., counsel of record in
`
`this action for Plaintiff, The Chamberlain Group, Inc. (“CGI”). I am a member of the Bar of the
`
`State of California and have been admitted Pro Hac Vice in this case. I have personal knowledge
`
`of the matters stated in this declaration and would testify truthfully to them if called upon to do
`
`so.
`
`2.
`
`I submit this declaration in support of CGI’s Motion for Preliminary Injunction
`
`barring the defendants from making, using, selling, offering for sale, or importing to the United
`
`States garage door openers that infringe U.S. Patent Nos. 7,635,966 (“the ’966 patent”) and
`
`7,224,275 (“the ’275 patent”).
`
`
`
`Case: 1:16-cv-06097 Document #: 10 Filed: 06/10/16 Page 2 of 13 PageID #:106
`
`3.
`
`Attached as Exhibit A is a true and correct copy of U.S. Patent App.
`
`No. 12/426,356 (“the ’356 Application”), published as Patent Pub. No. US2010/0156182, as
`
`obtained from the U.S. Patent and Trademark Office (“PTO”) website, www.uspto.gov, on
`
`May 16, 2016. The ’356 Application is entitled “Garage Door Opener With Secondary Power
`
`Source” and the application indicates that it was filed with the PTO on April 20, 2009. The face
`
`of the ’356 Application identifies that it is based on a provisional application that was filed on
`
`December 19, 2008.
`
`4.
`
`Attached as Exhibit B is a true and correct copy of the Office Action, dated
`
`May 16, 2011, for the ’356 Application, as obtained from the PTO website, www.uspto.gov, on
`
`May 16, 2016. In this Office Action, the examiner issued a non-final rejection of all claims of
`
`the ’356 Application.
`
`5.
`
`Attached as Exhibit C is a true and correct copy of the Notice of Abandonment,
`
`dated February 28, 2012, for the ’356 Application, as obtained from the PTO website,
`
`www.uspto.gov, on May 16, 2016.
`
`6.
`
`Attached as Exhibit D are true and correct excerpts from the Ryobi GD200 garage
`
`door opener (“Ryobi GDO”) website, obtained from http://www.ryobitools.com/gdo/opener/ and
`
`http://www.ryobitools.com/power-tools/products/details/802 on June 5, 2016, and Ryobi's ONE+
`
`System website, obtained from http://www.ryobitools.com/power-tools/products/list/family/one-
`
`plus on June 5, 2016.
`
`7.
`
`Attached as Exhibit E are true and correct excerpts of the LinkedIn page for Brian
`
`Mertel, described as Senior Director of Product Management at Techtronic Industries Power
`
`Equipment, as obtained from http://www.linkedin.com/in/brian-mertel-3650051a on June 6,
`
`2016.
`
`
`
`2
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`
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`Case: 1:16-cv-06097 Document #: 10 Filed: 06/10/16 Page 3 of 13 PageID #:107
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`8.
`
`Attached as Exhibit F is a true and correct transcript of Tools In Action’s video
`
`review of the Ryobi GDO. This video is available at
`
`http://www.youtube.com/watch?v=nfRNAIGCQ_A.
`
`9.
`
`Attached as Exhibit G are true and correct excerpts of posts and comments on
`
`Ryobi Power Tools’ Facebook website, obtained from http://www.facebook.com/ryobitoolsusa
`
`on May 19, 2016, and May 27, 2016.
`
`10.
`
`Attached as Exhibit H is a true and correct copy of the Ryobi Power Tools
`
`website, featuring both the Ryobi GDO and Ryobi’s ONE+ battery system, available at
`
`http://www.ryobitools.com, obtained on June 9, 2016.
`
`11.
`
`Attached as Exhibit I are true and correct excerpts of comments on Tools In
`
`Action’s video review of the Ryobi GDO, obtained from
`
`http://www.youtube.com/watch?v=nfRNAIGCQ_A on May 27, 2016.
`
`12.
`
`Attached as Exhibit J is a true and correct copy of Tools In Action’s online review
`
`of the Ryobi GDO, obtained from http://professional-power-tool-guide.com/2016/03/ryobi-
`
`garage-door-opener/ on May 27, 2016.
`
`13.
`
`Attached as Exhibit K is a true and correct copy of ToolGuyd’s online review of
`
`the Ryobi GDO, obtained from http://toolguyd.com/ryobi-garage-door-opener-modular-system/
`
`on June 5, 2016.
`
`14.
`
`Attached as Exhibit L are true and correct excerpts of
`
`http://www.garagejournal.com/forum/showthread.php?t=324926 obtained on May 19, 2016.
`
`15.
`
`Attached as Exhibit M is a true and correct copy of a web search showing
`
`hundreds of Ryobi products for sale at Home Depot, obtained from
`
`http://www.homedepot.com/s/ryobi?NCNI5 on June 9, 2016.
`
`
`
`3
`
`
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`Case: 1:16-cv-06097 Document #: 10 Filed: 06/10/16 Page 4 of 13 PageID #:108
`
`16.
`
`Attached as Exhibit N are true and correct excerpts of the Ryobi GDO operator’s
`
`manual, obtained from http://manuals.ttigroupna.com/system/files/9593/original/
`
`GD200_698_trilingual.pdf?2016 on May 25, 2016.
`
`17.
`
`Attached as Exhibits O and T are two versions of the front page of the Home
`
`Depot website www.homedepot.com from June 5, 2016, which includes near the top the
`
`following two advertisements advertising Ryobi as a “Trusted Brand.” These two
`
`advertisements were displayed in a rotating screen alternating between these two advertisements
`
`and one additional, non-Ryobi advertisement.
`
`
`
`4
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`Case: 1:16-cv-06097 Document #: 10 Filed: 06/10/16 Page 5 of 13 PageID #:109
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`18.
`
`Below is the result the Home Depot website www.homedepot.com returned when
`
`“Garage Door Openers” was entered into the “search” bar. The Home Depot website returned as
`
`the first seven hits as seen at Exhibit U:
`
`
`
`
`
`5
`
`
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`Case: 1:16-cv-06097 Document #: 10 Filed: 06/10/16 Page 6 of 13 PageID #:110
`Case: 1:16-cv-06097 Document#: 10 Filed: 06/10/16 Page 6 of 13 PagelD #:110
`
`
`3. Chamberlain Premium 1/2 HP Chain Drive Garage Door Openerwith
`Technology
`
`Model # HD420EV
`
`4. Garage Door and OpenerInstallation and Repair
`
`
`
`5. Chamberlain 1/2 HP Chain Drive Garage Door Opener
`
`
`CF
`
`
`Model = PD220
`
`
`
`
`
`6
`
`
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`Case: 1:16-cv-06097 Document #: 10 Filed: 06/10/16 Page 7 of 13 PageID #:111
`
`19.
`
`As seen in Exhibit U, on the website, the Ryobi GDO was being sold right
`
`alongside the CGI GDOs.
`
`
`
`
`
`7
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`
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`Case: 1:16-cv-06097 Document #: 10 Filed: 06/10/16 Page 8 of 13 PageID #:112
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`
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`20.
`
`In addition, as further seen in Exhibit U, there was an advertisement in the upper
`
`right hand corner of the page encouraging customers to purchase the “Ryobi Wi-Fi Compatible
`
`Garage Door Opener” and advertising a “FREE Ryobi garage door accessory, up to a $64 value.”
`
`
`
`
`
`8
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`
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`Case: 1:16-cv-06097 Document #: 10 Filed: 06/10/16 Page 9 of 13 PageID #:113
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`
`
`21.
`
`
`
`In the couple of weeks preceding June 5, 2016, searching on the Home Depot
`website, www.homedepot.com, for the Chamberlain 1‐1/4 HPS Smartphone‐Controlled Wi‐
`Fi Belt Drive Garage Door Opener with Battery Backup and Ultra‐Quiet Operation
`(HD950WF) returned the page shown at Exhibit P.
`product:
`
`22.
`
`The top of the page provided information about the Chamberlain HD950WF
`
`
`
`9
`
`
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`Case: 1:16-cv-06097 Document #: 10 Filed: 06/10/16 Page 10 of 13 PageID #:114
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`23.
`
`Further down the page, Home Depot identified that others who viewed the same
`
`Chamberlain product purchased the Ryobi product:
`
`
`
`
`
`10
`
`
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`Case: 1:16-cv-06097 Document #: 10 Filed: 06/10/16 Page 11 of 13 PageID #:115
`
`24.
`
`The same was true for the Chamberlain Whisper Drive 1/2 HP Belt Drive Garage
`
`Door Opener with MyQ Technology (Model # WD832KEV). The website stated that customers
`
`who viewed Chamberlain Model # WD832KEV bought the Ryobi GDO. [See below]
`
`
`
`25.
`
`The same was true for the Chamberlain 1/2 HP Belt Drive Garage Door Opener
`
`with MyQ Technology (Model # HD520EV-P). The website stated that customers who viewed
`
`Chamberlain Model # HD520EV-P bought the Ryobi GDO. [See below and Exhibit V]
`
`
`
`
`
`11
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`Case: 1:16-cv-06097 Document #: 10 Filed: 06/10/16 Page 12 of 13 PageID #:116
`
`26.
`
`The same was true for the Chamberlain 3/4 HPS Smartphone-Controlled Wi-Fi
`
`Belt Drive Garage Door Opener with Ultra-Quiet Operation Model # HD750WF. The website
`
`stated that customers who viewed Chamberlain Model # HD750WF bought the Ryobi GDO.
`
`[See below and Exhibit W]
`
`
`
`27.
`
`Attached as Exhibits Q, R, and S are true and correct copies of excerpts from
`
`Techtronic Industries Co.’s 2006, 2011, and 2015 annual reports, respectively, obtained from
`
`http://www.ttigroup.com/en/investor_relations/financial_reporting on May 5, 2016.
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`
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`12
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`Case: 1:16-cv-06097 Document #: 10 Filed: 06/10/16 Page 13 of 13 PageID #:117
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`I declare under penalty of perjury under the laws of the United States that the foregoing is true
`
`and correct. Executed at Minneapolis, Minnesota, this 10th day of June, 2016.
`
`
`
`
`
`Dated: June 10, 2016
`
`FISH & RICHARDSON P.C.
`
`
`
`
`
`By: /s/ Maria Elena Stiteler
` Maria Elena Stiteler
`
`
`
`
`13
`
`
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