Case 6:21-cv-00557-ADA Document 1 Filed 06/02/21 Page 1 of 12
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`APPLIED BIOKINETICS LLC
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`Plaintiff,
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`v.
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`CVS PHARMACY, INC.,
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`Defendant.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Civil Action No. 6:21-cv-557
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`JURY DEMANDED
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`PLAINTIFF’S COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff Applied Biokinetics LLC (“ABK” or “Plaintiff”) files this Complaint for patent
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`infringement against CVS Pharmacy, Inc. (“CVS” or “Defendant”).
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`THE PARTIES
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`1.
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`Plaintiff ABK is a Texas limited liability company with a place of business in Spring,
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`Texas.
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`2.
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`On information and belief, Defendant CVS Pharmacy, Inc. is a corporation organized and
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`existing under the laws of Delaware.
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`3.
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`On information and belief, CVS Pharmacy, Inc. is registered to do business in Texas, and
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`may be served through its registered agent for service of process, CT Corporation System, 1999
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`Bryan St., Suite. 900, Dallas, Texas 75201.
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`4.
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`On information and belief, CVS owns and operates pharmacies and retail medical clinics
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`inside Target Corporation’s stores.
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`JURISDICTION AND VENUE
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`PLAINTIFF’S COMPLAINT FOR PATENT INFRINGEMENT
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`5.
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`This is an action for patent infringement arising under the patent laws of the United States,
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`Title 35, United States Code. Jurisdiction as to these claims is conferred on this Court by 35 U.S.C.
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`§§1331 and 1338(a).
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`6.
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`This Court has personal jurisdiction over CVS because, directly or through intermediaries,
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`CVS has committed acts within the Western District of Texas giving rise to this action and/or has
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`established minimum contacts with the Western District of Texas such that the exercise of
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`jurisdiction would not offend traditional notions of fair play and substantial justice.
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`7.
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`Venue is proper in this District under 28 U.S.C. §§ 1391(b), (c), (d) and 1400(b). CVS is
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`registered to do business in Texas and, upon information and belief, CVS has transacted business
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`in this District and has committed acts of direct and indirect infringement in this District by, among
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`other things, importing, offering to sell, and selling products that infringe ABK’s patents, as
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`explained below. CVS maintains regular and established places of business in the Western District
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`of Texas, including at 500 Congress Ave, Austin, Texas 78701; 601 N. Valley Mills Drive, Waco,
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`Texas 76710; 1513 S. Valley Mills Drive, Waco, Texas 76711; 5401 Bosque Blvd., Waco, Texas
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`76710; and 820 S. 5th St., Waco, TX 76706, shown below:
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`8.
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`In addition, CVS has placed or contributed to placing infringing products into the stream
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`of commerce via an established distribution channel knowing or understanding that such products
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`would be sold and used in the United States, including in the Western District of Texas.
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`9.
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`This Court has specific personal jurisdiction over CVS at least in part because CVS
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`conducts business in this Judicial District. ABK’s causes of action arise, at least in part, from
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`CVS’s contacts with and activities in the State of Texas and this Judicial District. Upon information
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`and belief, the CVS has committed acts of infringement within the State of Texas and this Judicial
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`District by, inter alia, directly and/or indirectly making, using, selling, offering to sell, or
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`importing products that infringe one or more claims of ABK’s patents described below. CVS’s
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`infringing acts within this Judicial District give rise to this action and have established minimum
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`contacts with the forum state of Texas. On information and belief, CVS also has derived
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`substantial revenues from infringing acts in this Judicial District, including from the sale and use
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`of infringing products including, but not limited to, the products accused of infringement below.
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`FACTUAL BACKGROUND
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`10.
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`ABK was founded in 2008 by Donald P. Bushby, an engineer and prolific inventor who
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`has invented and validated several innovative technology solutions.
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`11.
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`In the early 2000’s, Mr. Bushby had learned about the activity of “roller-skiing,” a sport
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`like rollerblading utilizing two inline wheels supporting an elongated ski-like structure. To slow
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`down, users of the devices needed to squat down and pull upward on handles attached to cables.
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`Mr. Bushby developed an improved braking approach that simulated a “snowplow” effect by
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`rotating the binding to translate into a braking force, while the skis remained parallel. While
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`developing and testing his invention, Mr. Bushby developed a muscular injury that persisted for
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`weeks, and led to excruciating pain. In discussing his injury with his doctor, Mr. Bushby learned
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`that he had a micro-tear in the fascia of his injured muscle resulting in inflammation and pain, the
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`standard treatment for which was to receive cortisone injections. Mr. Bushby refused the
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`injections, believing that such treatment was painful, expensive, and did not properly address the
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`root issue involving the damaged fascia. Mr. Bushby went on to perform research at his local
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`library to learn more about the body, biomechanics, stress, and the tough connective tissue known
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`as fascia. He concluded that there was a need for a system to: treat pain, provide direct anatomical
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`support, and protect fascia from damaging stress, thus allowing tissue healing and rapid pain
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`recover that was inexpensive, fast acting and easy to apply at home. This led Mr. Bushby to
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`develop a novel system which included pre-cut parts with an adhesive layer and removable cover
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`layer for ease of handling and self-application. The system includes a single woven support layer
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`with high strength and low elongation in at least one direction, such that when it is applied to the
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`body part it can provide support and reduce stress on the underlying fascia.
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`12. Mr. Bushby founded Applied BioKinetics to develop and commercialize his ideas.
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`13.
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`14.
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`ABK is an inventor-controlled entity.
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`ABK is a practicing entity that has
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`commercialized
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`its
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`intellectual property
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`through
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`licensing and also
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`through
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`the
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`development and sale of products.
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` For
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`example, ABK developed the FasciaDerm line
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`of products as show here:
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`TECHNOLOGY BACKGROUND
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`15.
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`Several of the products accused of infringement below are products that are used to treat
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`fascia injury.
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`EXEMPLARY PRODUCTS
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`16.
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`Examples of products accused of infringement (the “Exemplary Products”) below include:
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` Target-brand Kinesiology Tape (“Target Tape”)
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` CVS-brand Kinesiology Tape
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` CVS-brand Pro Strength Kinesiology Tape (together with the CVS product above, “CVS
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`Tape”)
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` KT Tape (original)
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` KT Tape Gentle
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` KT Tape Pro
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` KT Tape Pro Extreme (together with the KT products above, “KT Tape”)
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` StrengthTape (products sold in pre-cut rolls and also the “StrengthTape Kinesiology Tape
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`Kit – Ankle & Foot”, collectively “StrengthTape”)
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`COUNT I
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`INFRINGEMENT OF U.S. PATENT NO. 10,212,987
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`17.
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`18.
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`ABK incorporates by reference the paragraphs above as if fully set forth herein.
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`On February 26, 2019, United States Patent No. 10,212,987 (the ’987 patent”) entitled
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`“Method of Manufacturing an Anatomical Support System” was duly and legally issued after full
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`and fair examination. ABK is the owner of all right, title, and interest in and to the patent by
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`assignment, with full right to bring suit to enforce the patent, including the right to recover for past
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`infringement damages and the right to recover future royalties, damages, and income. A true copy
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`of the ’987 patent is attached as Exhibit 1.
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`19.
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`20.
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`The ’987 patent is valid and enforceable.
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`CVS has directly infringed, and are continuing to directly infringe, literally or under the
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`doctrine of equivalents, at least independent claims 18, 19, and 22 - 31 of the ’987 patent by
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`importing into the United States or offering to sell, selling, or using within the United States, at
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`least, one or more of the Exemplary Products, in violation of 35 U.S.C. § 271(g) including, at least,
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`Target Tape, CVS Tape, KT Tape, and StrengthTape (“’987 Accused Products”).
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`21.
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`Exemplary charts comparing the asserted claims of the ’987 Patent to exemplars of CVS’s
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`products are attached as Exhibits 3-10.
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`22.
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`The Exemplary Products were not materially changed by subsequent processes after
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`importation by CVS. The Exemplary Products did not become trivial or nonessential components
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`of another product after importation by CVS. Upon information and belief, CVS knew of the ’987
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`patent and had knowledge before the infringement that a patented process was used to make the
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`Exemplary Products, including by way of this lawsuit and earlier as described below.
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`23.
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`ABK has suffered damages as a result of CVS’s direct and indirect infringement of the
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`’987 Patent in an amount adequate to compensate for CVS’s infringement, but in no event less
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`than a reasonable royalty for the use made of the invention by CVS, together with interest and
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`costs as fixed by the Court.
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`COUNT II
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`INFRINGEMENT OF U.S. PATENT NO. 10,299,953
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`24.
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`25.
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`ABK incorporates by reference the paragraphs above as if fully set forth herein.
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`On May 28, 2019, United States Patent No. 10,299,953 (the ’953 Patent”) entitled
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`“Material Including Pre-Cut Anatomical Supports” was duly and legally issued after full and fair
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`examination. ABK is the owner of all right, title, and interest in and to the patent by assignment,
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`with full right to bring suit to enforce the patent, including the right to recover for past infringement
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`damages and the right to recover future royalties, damages, and income. A true copy of the ’953
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`Patent is attached as Exhibit 2.
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`26.
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`The ’953 Patent is valid and enforceable.
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`27.
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`CVS has directly infringed and continues to directly infringe, literally and/or under the
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`doctrine of equivalents, one or more claims, including at least claims 1 - 8, 10 - 13, 15 - 17, and
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`191 of the ’953 Patent in violation of 35 U.S.C. § 271(a) because CVS makes, uses, offers for sale,
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`sells, and/or imports certain products, including within this District, at least Target Tape, CVS
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`Tape, KT Tape, and the pre-cut rolls of StrengthTape (“’953 Accused Products”).
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`28.
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`Exemplary charts comparing the asserted claims of the ’953 Patent to exemplars of CVS’s
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`products are attached as Exhibits 11-18.
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`29.
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`The ’953 Accused Products satisfy all claim limitations of one or more of the claims of the
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`’953 Patent, including at least claims 1 - 8, 10 - 13, 15 - 17, and 19.
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`30.
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`CVS has received notice and actual or constructive knowledge of the ’953 Patent and the
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`infringing nature of the ’953 Accused Products since at least the date of service of this Complaint.
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`31.
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`Since at least the date of service of this Complaint, through its actions, CVS has indirectly
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`infringed and continues to indirectly infringe the ’953 Patent in violation of 35 U.S.C. § 271(b).
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`CVS has actively induced product makers, distributors, retailers, and/or end users of the ’953
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`Accused Products to directly infringe the ’953 Patent throughout the United States, including
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`within this Judicial District, by, among other things, advertising and promoting the use of the ’953
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`Accused Products in various websites, including providing and disseminating product
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`descriptions, product packaging, enclosed product instructions, and other instructions on how to
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`configure and/or use the ’953 Accused Products. CVS does so knowing and intending that its
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`customers and end users will commit these infringing acts, including infringement of claims 1 - 8,
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`10 - 13, 15 - 17, and 192 of the ’953 Patent. CVS also continues to make, use, offer for sale, sell,
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`1 ABK does not presently allege direct infringement of claim 2 of the ’953 Patent as to Target
`Tape. Further, claim 3 of the ’953 Patent is only asserted against the Y-strips of CVS Tape.
`2 ABK does not presently allege indirect infringement of claims 2 or 5 of the ’953 Patent as to
`Target Tape. ABK does not presently allege indirect infringement of claim 5 of the ’953 Patent
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`and/or import the ’953 Accused Products, despite its knowledge of the ’953 Patent, thereby
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`specifically intending for and inducing its customers to infringe the ’953 Patent through the
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`customers’ normal and customary use of the ’953 Accused Products.
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`32.
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`In addition, CVS has indirectly infringed and continues to indirectly infringe the ’953
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`Patent in violation of 35 U.S.C. § 271(c) by selling or offering to sell in the United States, or
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`importing into the United States, the ’953 Accused Products with knowledge that they are
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`especially designed or adapted to operate in a manner that infringes that patent and despite the fact
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`that the infringing aspects of the products are not a staple article of commerce suitable for
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`substantial non-infringing use. In addition, the ’953 Accused Products include instructions, both
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`on the product packaging and separately included inside of the product packaging, wherein each
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`of the printed instructions is an apparatus for use in practicing the invention of the ’953 Patent,
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`and wherein such instructions are a material part of the invention, and wherein such instructions
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`are especially made or especially adapted for use in an infringement, are not a staple article or
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`commodity of commerce, and are not suitable for substantial noninfringing use. CVS is aware
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`that the ’953 Accused Products enable end-users to configure and/or use the product to infringe
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`the ’953 Patent, including claims 1 - 8, 10 - 13, 15 - 17, and 19. In particular, the product
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`descriptions, product packaging, enclosed product instructions, and other instructions for the ’953
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`Accused Products teach that the ’953 Accused Products are especially made or especially adapted
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`for use in an infringement of the ’953 Patent. CVS continues to sell and offer to sell these products
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`in the United States after receiving notice of the ’953 Patent and how the products’ use and/or
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`configuration infringe that patent. In addition, the infringing aspects of the ’953 Accused Products
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`as to non-Pro variant of CVS Tape, the Original and Gentle variants of KT Tape, and
`StrengthTape. Further, claim 3 of the ’953 Patent is only asserted against the Y-strips of CVS
`Tape.
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`can be used only in a manner that infringes the ’953 Patent and thus have no substantial non-
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`infringing uses.
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`33.
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`ABK has suffered damages as a result of CVS’s direct and indirect infringement of the
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`’953 Patent in an amount adequate to compensate for CVS’s infringement, but in no event less
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`than a reasonable royalty for the use made of the invention by CVS, together with interest and
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`costs as fixed by the Court.
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`KNOWLEDGE, WILLFULNESS, AND MARKING
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`ABK incorporates by reference the paragraphs above as if fully set forth herein.
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`The patents identified above are collectively known as the Asserted Patents.
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`CVS had knowledge of the Asserted Patents since, at least, 2015 when CVS sold
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`34.
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`35.
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`36.
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`FasciaDerm and PFTape products, either through CVS stores or Target stores (which CVS
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`acquired), which products were marked with the numbers of the Asserted Patents, or patents which
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`shared common priority with the Asserted Patents.
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`37.
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`To the extent any marking or notice was required by 35 U.S.C. § 287, ABK has complied
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`with the applicable marking and/or notice requirements of 35 U.S.C. § 287.
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`38.
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`CVS had knowledge of the Asserted Patents since, at least, prior to the filing of this lawsuit
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`when CVS received ABK’s letter disclosing and attaching each of the Asserted Patents, and
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`identifying several of CVS’s products utilizing claims of such patents which were also identified
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`in ABK’s letter.
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`39.
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`CVS had knowledge of the Asserted Patents since, at least, the filing date of the original
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`complaint in this action.
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`40.
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`CVS’s infringement has been and continues to be willful and deliberate. Upon information
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`and belief, CVS deliberately infringed the Asserted Patents and acted recklessly and in disregard
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`to the Asserted Patents by making, having made, using, importing, and offering for sale products
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`that infringe the Asserted Patents. Upon information and belief, the risks of infringement were
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`known to CVS and/or were so obvious under the circumstances that the infringement risks should
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`have been known. Upon information and belief, CVS has no reasonable non-infringement
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`theories. Upon information and belief, CVS has not attempted any design/sourcing change to
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`avoid infringement. CVS has acted despite an objectively high likelihood that its actions
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`constituted infringement of the Asserted Patents. In addition, this objectively-defined risk was
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`known or should have been known to CVS. Upon information and belief, CVS has willfully
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`infringed and/or continues to willfully infringe the Asserted Patents. CVS’s actions of being made
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`aware of its infringement, not developing any non-infringement theories, not attempting any
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`design/sourcing change, and not ceasing its infringement constitute egregious behavior beyond
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`typical infringement.
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`DEMAND FOR JURY TRIAL
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`ABK hereby demands a jury for all issues so triable.
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`PRAYER
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`WHEREFORE, ABK prays for judgment that:
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`1.
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`CVS has infringed and continues to infringe, one or more claims of United States Patent
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`Nos. 10,212,987; and 10,299,953;
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`2.
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`3.
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`4.
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`5.
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`CVS be ordered to pay damages caused to ABK by CVS’s unlawful acts of infringement;
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`CVS’s acts of infringement have been, and are, willful;
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`ABK recover actual damages under 35 U.S.C. § 284;
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`ABK be awarded supplemental damages for any continuing post-verdict infringement up
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`until final judgment;
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`6.
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`7.
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`8.
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`9.
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`ABK be awarded a compulsory ongoing royalty;
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`ABK be awarded an accounting of damages;
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`ABK be awarded enhanced damages for willful infringement as permitted under the law;
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`A judgment and order requiring CVS to pay to ABK pre-judgment and post-judgment
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`interest on the damages awarded, including an award of pre-judgment interest, pursuant to 35
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`U.S.C. § 284, from the date of each act of infringement by CVS to the day a damages judgment
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`is entered, and a further award of post-judgment interest, pursuant to 28 U.S.C. § 1961,
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`continuing until such judgment is paid, at the maximum rate allowed by law;
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`10.
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`An award to ABK of the costs of this action and its reasonable attorneys’ fees pursuant to
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`35 U.S.C. §285; and
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`11.
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`Such other and further relied as the Court deems just and equitable.
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`DATED: June 2, 2021
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`Respectfully submitted,
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`Robert D. Katz
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`Derek Gilliland
`Texas State Bar No. 24007239
`SOREY,& GILLILAND, LLP
`133 E. Tyler Street
`Longview, Texas 75601
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`903.212.2822 (Telephone)
`903.212.2864 (Facsimile)
`derek@soreylaw.com
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`Robert D. Katz
`Texas Bar No. 24057936
`KATZ PLLC
`6060 N. Central Expressway, Suite 560
`Dallas, TX 75206
`214,865,8000 (Telephone)
`888.231.5775 (Facsimile)
`rkatz@katzfirm.com
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`ATTORNEYS FOR PLAINTIFF
`APPLIED BIOKINETICS LLC
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