IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.

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LOBELIFTS, LLC, a Florida Limited Liability Company, and EARRING SUPPORT, LLC, a Florida Limited Liability Company, Plaintiffs, v. RISSINS SOLUTIONS, LLC, a New York Limited Liability Company, Defendant. _____________________________________/ COMPLAINT FOR DECLARATORY JUDGMENT Plaintiffs, LOBELIFTS, LLC (Lobelifts) and EARRING SUPPORT, LLC (Earring Support) (collectively, Plaintiffs), by and through their undersigned attorneys, hereby file this Complaint for Declaratory Judgment of Invalidity and Noninfringement of the asserted claims 12 and 13 of U.S. Patent No. 5,906,114 against Defendant RISSINS SOLUTIONS, LLC (Defendant or Rissin), and states as follows: JURISDICTION, PARTIES, AND VENUE 1. This is a declaratory judgment action under the Federal Declaratory Judgment

Act, 28 U.S.C. 2201, 2202, and under the patent laws of the United States, Title 35 United States Code 100 et seq. 2. This Court has subject matter jurisdiction of this action under 28 U.S.C. 1338.

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Plaintiff, LOBELIFTS, LLC, is a Florida limited liability company organized and

existing under the laws of Florida. Plaintiff is authorized to do business in Florida and has its principal place of business in Broward County, Florida. 4. Plaintiff, EARRING SUPPORT, LLC, is a Florida limited liability company

organized and existing under the laws of Florida. Plaintiff is authorized to do business in Florida and has its principal place of business in Broward County, Florida. 5. On information and belief, Defendant, RISSINS SOLUTIONS, LLC, is a limited

liability company organized and existing under the laws of New York but doing business in Florida. 6. On information and belief Rissin is the owner by assignment of U.S. Patent No.

5,906,114 (the 114 Patent). See Copy of U.S. Patent No. 5,906,114 Attached hereto as Exhibit A. 7. Rissin has engaged in business in Florida with Lobelifts for matters relating to the

114 Patent at issue for at least the last twenty-seven (27) months. 8. Rissin entered into at least two agreements with the Florida company Lobelifts in

the last fifteen (15) months relating to the 114 Patent, including a license for Lobelifts to use the 114 Patent if Lobelifts desired to do so (the Rissin Agreements). 9. During negotiations relating to the Rissin Agreements, Rissin called the Lobelifts

representatives in Broward County, Florida numerous times. In addition, Rissin engaged in extensive email correspondence with Lobelifts representatives and sent emails to Lobelifts representatives in Florida. 10. Indeed, to facilitate a face-to-face meeting, Joseph B. Rissin, who is the principal

of Rissin, along with his wife, Toby Rissin, skyped with Lobelift representatives while those 2
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Lobelift representatives were located in Broward County, Florida so Rissin was able to see them in Florida for the video teleconference. 11. Under the terms of a licensing agreement Rissin had with Lobelifts at one point in

time, Rissin received $330.00 in royalties from Lobelifts, which represented proceeds from Lobelift products that were sold within the State of Florida. The funds were paid to Rissin from a Florida bank account. 12. In connection with the 114 Patent, Rissin benefitted from the services of counsel

in Florida who helped work to clear up impediments to the Rissin relationship with Rissins prior license. 13. In addition, attorneys representing Rissin sent a letter to Lobelifts in Florida

alleging that Lobelifts infringes claims 12 and 13 of the 114 Patent. See Demand Letter from Rissins counsel to Lobelifts Florida counsel dated January 7, 2014 Attached as Exhibit B. 14. Venue in this action is proper in this District under 28 U.S.C. 1391. As set forth

within this Complaint, a substantial part of the events giving rise to this matter took place within or will take place within the State of Florida. 15. Defendants demand that Lobelifts immediately discontinue all manufacturing,

sale, offer for sale, display, marketing, advertising and promotion of the accused earrings (the New Product) raises a substantial controversy of sufficient immediacy and reality to warrant issuance of a declaratory judgment with respect to the alleged infringement of the 114 Patent, and therefore, the parties need and are entitled to a declaratory judgment on the issues in controversy.

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BACKGROUND The 114 Patent and License Agreements 16. The 114 Patent, U.S. Patent No. 5,906,114 entitled Earring Stabilizer, was filed

May 1, 1997 and issued on May 25, 1999 to Joseph B. Rissin (the 114 Patent) and was subsequently assigned to Defendant Rissin. 17. The subject matter of the 114 Patent is directed to an earring stabilizer attachable

to an earring backing or retainer, especially for use with earrings for pierced ears, that allows the earring, such as a large or heavy earring, to be supported behind the wearers ear and not droop forward and downward when worn. 18. Over the last several years, representatives of what later became known as

Lobelifts, LLC created an earring stabilizer concept that was to be used to help earring wearers better wear their earrings. The earring stabilizer product would attach to an earring back or earring retainer to stabilize the earring. 19. 114 Patent. After researching the earring stabilizer product Lobelifts became aware of the After negotiations by Lobelifts in Florida, on or about September 17, 2012,

Lobelifts entered into a licensing agreement with Rissin permitting Lobelifts use of the 114 Patent for purposes of production of the Lobelifts earring stabilizer product, if Lobelifts desired to do so. A copy of the Licensing Agreement is attached hereto as Exhibit C. 20. Subsequent to entering into the Licensing Agreement, Lobelifts learned of U.S.

Patent No. 3,563,056 entitled Pierced Ear Ornament With Lobe Support Means that issued February 17, 1971 (the 056 Patent). See U.S. Patent No. 3,563,056 - Attached as Exhibit D. 21. The 056 Patent is for a stabilizer for an earring retainer for supporting an earring,

especially a pierced earring, on the ear of the wearer. The disclosure in the 056 Patent 4
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anticipates or renders obvious at least claim 12 of the 114 Patent and thus invalidates claim 12 of the 114 Patent. 22. Despite the unenforceability of claim 12 of the 114 Patent, Lobelifts adhered to

the terms of the Licensing Agreement with Rissin and paid all royalties due under the Licensing Agreement. 23. In or about October 2013, upon Rissins request, Lobelifts and Rissin mutually

agreed to terminate their Licensing Agreement and the Licensing Agreement was terminated on October 28, 2013. 24. Lobelifts also put Rissin on notice of the prior art 056 Patent that rendered at

least claim 12 unenforceable. See Email dated November 12, 2013 confirming prior oral notification as well as providing written notification of the applicable prior art - Attached as Exhibit E. A New Product 25. Sometime in or after the fall of 2013, Earring Support created a new, better, and

different earring retainer design. Unlike the earlier Lobelifts design, among other things, this new earring support attaches at only one location to the earring retainer. See Photo of the Earring Support improved earring retainer product (the New Product) Attached as Exhibit F. 26. The design, patent rights, and distribution rights for the New Product are owned

by a Florida entity known as Earring Support, LLC, and not by Lobelifts. 27. The New Product has not yet been mass manufactured or mass sold by Earring

Support but samples have been given away on a limited basis to a limited number of persons within the State of Florida. Earring Support is investing capital in the manufacturing of the New Product and will be damaged if it has to cease manufacture of the New Product. 5
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Despite Earring Supports limited release of the New Product, on January 7, 2014,

Rissins counsel sent a letter to Lobelifts, which is not involved with the New Product, alleging that Lobelifts is manufacturing, selling, offering for sale, displaying and distributing an earring back that infringes on the 114 Patent. See Exhibit A. In Rissins letter, Rissins counsel attached photographs of the New Product, rather than the products that had been sold by Lobelifts. 29. Also in Rissins counsels letter, Rissin attempts to create analogies between the

114 Patent and the New Product. Rissin demands that Lobelifts immediately discontinue the manufacturing, sale, display, marketing, advertising, and promotion of what it calls the Lobelifts Earring Back and threatens litigation if Lobelifts fails to do so. 30. Despite Rissins allegations in his letter, the New Product, which is owned by and

is to be manufactured by Earring Support and not Lobelifts, is an entirely separate product that does not infringe the asserted claims 12 and 13 of the 114 Patent. 31. All conditions precedent to this action have been waived, satisfied, or excused. COUNT I Declaratory Relief Invalidity of Claim 12 of the 114 Patent 32. Plaintiffs hereby restate, re-allege and incorporate paragraphs 1 through 31, as if

fully stated herein. 33. 34. The earliest priority date of the 114 Patent is May 1, 1997. Claim 12 of the 114 Patent, claims a stabilizer for an earring, the earring

comprising an elongated support post and retaining means, where the elongated support post has a first end attached to the earring and a second end capable of penetrating a previously existing aperture in an ear of a wearer, and where the retaining means comprises a center opening and an edge, where the center opening of the retaining means is capable of engaging the second end of 6
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the elongated support post, the stabilizer comprising an elongated stabilizing member capable of attachment to the retaining means, where the elongated stabilizing member comprises a contact edge which is located a fixed distance from the retaining means, and in a direction from the retaining means toward the eminentia conchae of an ear when the earring is supported on the lobule of the ear. 35. Before the earliest priority date of the 114 Patent, U.S. Patent No. 3,563,056

entitled Pierced Ear Ornament With Lobe Support Means, was filed March 26, 1969 and issued to H. H. Noel and was published on Feb. 16, 1971 (the 056 Patent). See Exhibit D. 36. The 056 Patent discloses at least a stabilizer for an earring, having an elongated

support post and retaining means, where the elongated support post has a first end attached to the earring and a second end capable of penetrating a previously existing aperture in an ear of a wearer, and where the retaining means has a center opening and an edge, where the center opening of the retaining means is capable of engaging the second end of the elongated support post, the stabilizer having an elongated stabilizing member capable of attachment to the retaining means, where the elongated stabilizing member comprises a contact edge which is located a fixed distance from the retaining means, and in a direction from the retaining means toward the eminentia conchae of an ear when the earring is supported on the lobule of the ear. 37. Claim 12 of the '114 Patent is invalid for failure to meet one or more of the

statutory requirements and/or conditions for patentability under the Patent Laws of the United States, 35 U.S.C. 101 et seq. including but not limited to 35 U.S.C. 101-103 and 112. 38. Claim 12 of the 114 Patent is anticipated by the prior art disclosure of the 056

Patent and is invalid pursuant to 35 U.S.C. 102.

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Claim 12 of the 114 Patent is obvious in view of the prior art disclosure of the

056 Patent and is invalid pursuant to 35 U.S.C. 103. 40. An actual controversy exists between Plaintiffs and Defendant with respect to the

invalidity of claim 12 of the 114 Patent, and a judicial declaration to this effect is appropriate and necessary. WHEREFORE Plaintiffs respectfully request this Court enter an Order granting final declaratory judgment against Defendant RISSINS SOLUTIONS, LLC finding and declaring that claim 12 of United States Patent No. 5,906,114 is invalid and void in law, that pursuant to 15 U.S.C. 285 this case is exceptional such that the Court award Plaintiffs their costs and reasonable attorneys fees incurred in connection with the institution and prosecution of this civil action, as well as such other and further relief as justice may require. COUNT II Declaratory Relief - Non-Infringement of Claim 12 of the 114 Patent 41. Plaintiffs hereby restate, re-allege and incorporate paragraphs 1 through 31, as if

fully stated herein. 42. 43. 44. Claim 12 of the 114 Patent is invalid and unenforceable. Plaintiffs do not, and could not, infringe invalid claim 12 of the 114 Patent. Plaintiffs seeks a declaration that they do not directly or indirectly infringe claim

12 of the 114 Patent through the use, sale or manufacture of the New Product. 45. An actual controversy exists between Plaintiffs and Defendant with respect to the

infringement of claim 12 of the 114 Patent, and a judicial declaration to this effect is appropriate and necessary. WHEREFORE Plaintiffs respectfully request this Court enter an Order granting final declaratory judgment against Defendant RISSINS SOLUTIONS, LLC finding and declaring 8
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that the New Product does not infringe claim 12 of United States Patent No. 5,906,114, that pursuant to 15 U.S.C. 285 this case is exceptional such that the Court award Plaintiffs their costs and reasonable attorneys fees incurred in connection with the institution and prosecution of this civil action, as well as such other and further relief as justice may require. COUNT III Declaratory Relief - Non-Infringement of Claim 13 of the 114 Patent 46. Plaintiffs hereby restate, re-allege and incorporate Paragraphs 1 through 31 as

though fully alleged herein. 47. Claim 13 of the 114 Patent includes the limitations of the stabilizer of claim 12,

and that the contact edge presents a concave edge directed toward the eminentia conchae of the wearer's ear. 48. Earring Supports New Product has a contact edge with a convex edge directed

toward the eminentia conchae of the wearers ear. 49. Earring Supports New Product does not have a contact edge with a concave edge

directed toward the eminentia conchae of the wearers ear. 50. Plaintiffs New Product does not infringe claim 13 of the 114 Patent because the

accused earrings do not meet all the claim 13 limitations and specifically the New Product does not have a contact edge with a concave edge directed toward the eminentia conchae of the wearers ear and therefore the New Product does not infringe claim 13. 51. Plaintiffs seeks a declaration that they do not directly or indirectly infringe claim

13 of the 114 Patent through the use, sale or manufacture of the New Product. 52. An actual controversy exists between Plaintiffs and Defendant with respect to the

infringement of claim 13 of the 114 Patent, and a judicial declaration to this effect is appropriate and necessary 9
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WHEREFORE Plaintiffs respectfully request this Court enter an Order granting final declaratory judgment against Defendant RISSINS SOLUTIONS, LLC finding and declaring that the New Product does not infringe claim 13 of United States Patent No. 5,906,114, that pursuant to 15 U.S.C. 285 this case is exceptional such that the Court award Plaintiffs their costs and reasonable attorneys fees incurred in connection with the institution and prosecution of this civil action, as well as such other and further relief as justice may require. Dated January 10, 2014 Respectfully submitted, /s/ Beth-Ann E. Krimsky__________________ GREENSPOON MARDER, P.A. Beth-Ann E. Krimsky Florida Bar No. 968412 100 W. Cypress Creek Rd., Suite 700 Fort Lauderdale, FL 33309 Telephone: (954) 527-2427; Fax: (954) 333-4077 Email: beth-ann.krimsky@gmlaw.com Robert M. Schwartz, Esq. Robert M. Schwartz, P.A. Florida Bar No. 304018 2445 Hollywood Blvd Hollywood, FL 33020 Telephone: 954-924-0707 Fax: 954-924-0717 Email: litigation@patentmiami.com Attorneys for Plaintiffs Lobelifts, LLC and Earring Support, LLC

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