UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Robert P.

Gallagher and Instrument Design & Mfg. Co., LLC Plaintiff v. Funeral Source One Supply and Equipment Co., Inc. and Affordable Funeral Supply, LLC Defendants COMPLAINT AND PETITION FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF

Case No.

I. INTRODUCTION 1. This action is commenced pursuant to 35 U.S.C. 271 et seq. through which Plaintiff Robert P. Gallagher ("Plaintiff') seeks recourse for infringement of his patent under Federal, state, and common law. 2. Plaintiffs' claims arise out of Defendants' offers to sell and sales of infringing products. 3. In order to seek redress for infringement of his patent, Plaintiff has filed this action to enjoin the continued violation of its rights. H. PARTIES 4. Plaintiff Robert P. Gallagher is an individual residing at 15 Galloway Lane, Bedford, NH 03110.

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5. Plaintiff Instrument Design & Mfg. Co., LLC is a New Hampshire limited liability company owned by Plaintiff Gallagher with a business address of 25 Harvey Road, Unit 4, Bedford, NH 03110. 6. Defendant Funeral Source One Supply and Equipment Co., Inc. is a Tennessee corporation with a business address of 231 Fordtown Road, Fall Branch, TN 37656. 7. Defendant Affordable Funeral Supply, LLC is a Pennsylvania limited liability company with a business address of 128 Brickyard Road, Mars, PA 16046. m. STATEMENT OF JURISDICTION AND VENUE 8. This action is for patent infringement arising under 35 U.S.C. 271 et seq. 9. This Court has original jurisdiction of this action under 28 U.S.C 1338(a). 10. This Court has jurisdiction of this action under 28 U.S.C 1332 due to diversity of citizenship. 11. A substantial part of the events or omissions giving rise to Plaintiffs' claims occurred in this state, a substantial part of property subject to this action is located in this state, and Defendants have offered to sell and/or made sales within this state, so venue is proper under 28 U.S.C. 1391(b)(2) and (3). TV. FACTUAL BACKGROUND 12. Plaintiff Robert P. Gallagher ("Gallagher") is the inventor of United States Design Patent No. D460,174 entitled "Injector Needle Driver" ("the '174 Patent") duly issued on July 9, 2002, by the United States Patent and Trademark Office, a copy of which is attached hereto as Exhibit 1.

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13. The '174 patent has a term of 14 years from the date of issue as printed on the face of the patent; the patent has not yet expired. 14. Plaintiff Gallagher has granted rights of use of the '174 Patent to his company, Plaintiff Instrument Design & Mfg. Co., LLC ("Instrument Design"). 15. Plaintiff Gallagher also does business under the trade name Injector Needle Mfg. Co. 16. No other person or entity has any rights to the '174 Patent. 17. Defendant Funeral Source One Supply & Equipment Co., Inc. ("FSO") is a confirmed seller of counterfeit injector needle drivers. 18. Defendant FSO continued to display for sale several of Plaintiffs' products after being terminated as Plaintiffs' vendor and told to remove products from its website. 19. Defendant FSO had a picture of Plaintiffs' Injector Needle Driver displayed on Defendant's website. 20. Defendant FSO also shipped a counterfeit injector needle driver to Plaintiffs when an order was placed. 21. Defendant Affordable Funeral Supply, LLC ("AFS") is a confirmed seller of counterfeit injector needle drivers. 22. Defendant AFS displayed and sold the injector needle driver on its website. Exhibit 2.

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23. Two of the counterfeit injector needle drivers were acquired by Plaintiffs from Keller Mortuary Services in Lapel, Indiana when sent in to Plaintiffs for repair. 24. AFS had listed the counterfeit product for sale on eCRATER.com, but the listing was removed pursuant to Plaintiffs' request. 25. Upon information and belief, AFS may also be operating as "Buy All Supply", selling counterfeit injector needle drivers on Amazon.com. Exhibits. COUNT I; PATENT INFRINGEMENT 26. Wherein Plaintiffs hereby adopt and incorporate by reference the paragraphs set forth above and those set forth below. 27. Plaintiff Robert P. Gallagher is the inventor of the Injector Needle Driver protected by the '174 Patent. 28. Plaintiffs have placed the required statutory marking and notice on all products made and sold under the '174 Patent. 29. Plaintiffs' Injector Needle Driver bears the engraving "Injector Needle Mfg. Co., New Hampshire, Patented." 30. In addition, Plaintiffs' Injector Needle Drivers have a serial number engraved on the bottom of the grip. 31. Defendants' counterfeit devices are substantially similar to the patented design, therefore an ordinary observer would be deceived into thinking Defendants' devices are the same as the patented design.

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32. Defendants have infringed Plaintiffs rights by selling and offering to sell Plaintiffs Injector Needle Driver without authorization from Plaintiff in violation of 35 U.S.C. 271. 33. Defendants have infringed Plaintiffs rights by selling, offering to sell, using, and importing counterfeit injector needle drivers in this state and elsewhere in the United States in violation of 35 U.S.C. 271. 34. Defendants have continued to sell and offer for sale injector needle drivers within the scope of the '174 patent after Plaintiffs asked them to stop. 35. The acts of infringement by Defendants have been intentional and willful. 36. Plaintiffs are entitled to damages as a result of Defendants' infringement, as provided by law. 37. All to the damage of Plaintiffs, including exemplary and compensatory damages, within the jurisdictional limits of this Court. COUNT H; VIOLATION OF THE CONSUMER PROTECTION ACT/UNFAIR AND DECEPTIVE TRADE PRACTICES 38. Wherein Plaintiffs hereby adopt and incorporate by reference the paragraphs set forth above and those set forth below. 39. The Consumer Protection Act, NH RSA 358-A:2, prohibits unfair or deceptive acts in the conduct of any trade or commerce. A person engaging in deceptive or misleading acts while conducting his business falls within the scope of the statute. RSA 358-A:l, II. 40. Defendants have attempted to pass off goods and services of Plaintiffs as their own in violation of RSA 358-A:2,1.

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41. Defendants' unfair and deceptive business practices were willful and knowing violations of the statute entitling Plaintiffs to multiple damages plus attorney fees. 42. All to the damage of Plaintiffs, including exemplary and compensatory damages and statutory multiple damages plus attorney fees, within the jurisdictional limits of this Court. COUNT m; UNJUST ENRICHMENT 43. Wherein Plaintiffs hereby adopt and incorporate by reference the paragraphs set forth above and those set forth below. 44. Defendants have benefitted from the offering for sale, sale, use, and importation of products within the scope of the '174 Patent. 45. Defendants have not paid Plaintiffs for a license of the '174 Patent. 46. Defendants have not paid their profits to Plaintiffs. 47. Defendants have been unjustly enriched by selling injector needle drivers for a profit without consideration to Plaintiffs. 48. All to the damage of Plaintiffs, including exemplary and compensatory damages, within the jurisdictional limits of this Court. COUNT IV; PRELIMINARY AND PERMANENT INJUNCTION 49. Wherein Plaintiffs hereby adopt and incorporate by reference the paragraphs set forth above and those set forth below. 50. Plaintiffs have suffered irreparable harm as a result of Defendants' patent infringement, unfair and deceptive trade practices, and unjust enrichment.

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51. Defendants' misconduct, if not enjoined, will continue to cause immediate and irreparable harm to Plaintiffs for which Plaintiffs have no adequate remedy at law. PRAYERS FOR RELIEF WHEREFORE, Plaintiffs respectfully pray for a judgment against Defendants as follows: A. That U.S. Design Patent No. D460,174 is valid and enforceable; B. That Defendants have infringed U.S. Design Patent No. D460,174 and that such infringement was willful; C. An award of damages to Plaintiffs against Defendants for infringement of U.S. Design Patent No. D460,174 under 35 U.S.C 284 or 289; D. In the event Plaintiffs elect to recover damages under 35 U.S.C. 284, an increase of the sums awarded to Plaintiffs to three times the actual damages, pursuant to 35 U.S.C. 284; E. That Defendants be permanently enjoined from infringing U.S. Design Patent No. D460,174; F. That this case be deemed as exceptional under 35 U.S.C. 285 due to the intentional and willful nature of Defendants' infringement, and an award to Plaintiffs of attorney fees under 35 U.S.C. 285; G. An award of prejudgment and post judgment interest and costs of suit to Plaintiffs; and H. Such other and further relief as the Court deems property and just.

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DEMAND FOR JURY TRIAL Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a trial by jury on all issues triable by jury. Respectfully submitted, Robert P. Gallagher Instrument Design & Mfg. Co. By their attorneys, MESMER & DELEAULT, PLLC Date: March j,:j . 2014 /s/ Frank B. Mesmer, Jr., Esq. Frank B. Mesmer, Jr., Esq. 41 Brook Street Manchester, NH 03104 Frank@biz-patlaw.com 603-668-1971 Bar No. #1743

I hereby certify that I have read the paragraphs contained within the foregoing Complaint and Petition for Preliminary and Permanent Injunctive Relief and that the factual allegations appearing therein are true/to'jfene best of my knowledge and belief. Date: t?-/9Robert P. Gallagher STATE OF NEW HAMPSHIRE COUNTY OF HILLSBOROUGH Personally appeared the above-named Robert P. Gallagher, who took oath and acknowledged the foregoing statements to be true to the best of his knowledge and belief. Dated: Public/ Justice o

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USOOD460174S

(12) United States Design Patent (u.) Patent NO.:

Gallagher
(54) (76) (**) (21) (22) (51) (52) (58) INJECTOR NKEDLE DRIVER Inventor: Term: Robert P. Gallagher, 15 Galloway La., Bedford, NH (US) 03110 14 Years

us D460,174 s
** Jul. 9,2002
222/79 D24/113

(45) Date of Patent:

5,408,919 A * 4/1995 Hutzler et al D383.839 S * 9/1997 Sullivan

* cited by examiner Primary ExaminerIan Simmons (74) Attorney, Agent, or FirmSamuels, (iauthier & Stevens (57) CLAIM

Appl. No.: 29/129,597 Filed: Sep. 18, 2000

LOG (7) Cl 24-02 U.S. Cl D24/113 Field of Search 024/113,112, 1)24/133; 604/203, 227, 211, 207, 208, 93, 92, 187; 222/79 References Cited U.S. PATENT DOCUMENTS
3,141,583 4,472,141 D319,697 5,052,243 A * 7.1%4 Mapel et al A * 9/1984 Dragan S * 9,1991 Prindle et al A * 10/1991 Tcpic D24/113 604/232 D24/113 606/92

The ornamental design for an injector needle driver, as shown and described. DESCRIPTION FIG. 1 is a perspective view of an injector needle driver; FIG. 2 is a top view of FIG. 1; FIG. 3 is a left side view of FIG. 1, the right side view being a mirror image thereof; FIG. 4 is a front view of FIG. 1; FIG. 5 is a left side view of FIG. 1; FIG. 6 is an end view of FIG. 1; and, FIG. 7 is a top view of FIG. 1. 1 Claim, 2 Drawing Sheets

(56)

U.S.

Patent

Jul. 9,2002

Sheet 1 of 2

US 0460,174 S

U.S.

Patent

Jul. 9,2002

Sheet 2 of 2

US D460,174 S

F/J.

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