Case 1:19-cv-02110-UNA Document 1 Filed 11/07/19 Page 1 of 7 PageID #: 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

BLACKBIRD TECH LLC d/b/a

BLACKBIRD TECHNOLOGIES,

Plaintiff,
Case No. _______________
v.
JURY TRIAL DEMANDED
RITE AID CORPORATION

Defendant.

COMPLAINT FOR PATENT INFRINGEMENT

Plaintiff Blackbird Tech LLC d/b/a Blackbird Technologies (“Blackbird Technologies”

or “Plaintiff”) hereby alleges against Defendant Rite Aid Corporation (“Rite Aid” or

“Defendant”), on personal knowledge as to its own activities and on information and belief as to

all other matters, as follows:

THE PARTIES

1. Plaintiff Blackbird Technologies is a Delaware limited liability company with its

principal place of business located at 200 Baker Ave., Suite 303, Concord, MA 01742.

2. Rite Aid is a corporation organized and existing under the laws of Delaware, with

its principal place of business located at 30 Hunter Lane, Camp Hill, PA 17011

JURISDICTION AND VENUE

3. This is an action for patent infringement arising under the patent laws of the

United States of America, Title 35, United States Code §§ 100, et seq.

4. This Court has subject matter jurisdiction over this action per 28 U.S.C. § 1331

(federal question jurisdiction) and 28 U.S.C. § 1338(a) (patent jurisdiction).

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5. This Court has personal jurisdiction over Defendant because Defendant is subject

to general and specific jurisdiction in the state of Delaware. Defendant is subject to personal

jurisdiction because Defendant is a Delaware corporation and because Defendant has transacted

business within Delaware and committed acts of patent infringement in Delaware. Defendant has

made certain minimum contacts with Delaware such that the maintenance of this suit does not

offend traditional notions of fair play and substantial justice. Defendant regularly conducts

business in Delaware, including by offering for sale Rite Aid products in 16 Rite Aid stores

located in Delaware. See, e.g., https://locations.riteaid.com/locations/search.html?q=delaware.1

Defendant has marketed, offered, and provided the infringing instrumentality in Delaware to

citizens of Delaware through various interactive means, including but not limited to its website

(riteaid.com) and the retailers located in Delaware. The exercise of personal jurisdiction

comports with Defendant’s right to due process because, as described above, Defendant has

purposefully availed itself of the privilege of Delaware corporate laws and of conducting

activities within Delaware such that it should reasonably anticipate being haled into court here.

As alleged herein, the acts by Defendant in this district have caused injury to Blackbird

Technologies.

6. Venue is proper in the District of Delaware pursuant to 28 U.S.C. § 1391(b) and

(c) and § 1400(b) at least because Defendant resides in the District of Delaware, transacts

business within this district, and has committed acts of infringement in this district.

1
All websites cited in this Complaint were accessed on or around November 6, 2019.

2
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THE PATENT-IN-SUIT

7. U.S. Design Patent No. D666,358 (the “’358 patent”) entitled, “Face Sponge,”

was duly and legally issued by the U.S. Patent and Trademark Office on August 28, 2012.

8. Blackbird Technologies is the owner by assignment of all right, title, and interest

in and to the ‘358 patent, including all right to recover for any and all infringement thereof. The

‘358 patent is valid and enforceable. A true and correct copy of the ‘358 patent is attached as

Exhibit A.

9. The claims of the ‘358 patent are directed to a unique ornamental design for a

face sponge, as shown and described.

10. Rite Aid has not obtained permission from Blackbird Technologies to use the

design of the ‘358 patent.

11. Below is a side-by-side comparison of the patented design of the ‘358 patent and

the Rite Aid Daylogic Complexion Perfection Specialty Sponge product. As is apparent, Rite

Aid has misappropriated Blackbird Technologies patented design.

3
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‘358 Patent Accused Rite Aid Daylogic Complexion

Perfection Specialty Sponge

4
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COUNT I – INFRINGEMENT OF THE ‘358 PATENT

12. Blackbird Technologies reasserts and incorporates by reference the preceding

paragraphs of this Complaint as if fully set forth herein.

13. Rite Aid has infringed and continues to infringe the ‘358 patent by manufacturing,

using, distributing, offering to sell and/or selling in the United States the Rite Aid Daylogic

Complexion Perfection Specialty Sponge, which embodies the design covered by the ‘358

patent. Rite Aid’s infringing activities violate 35 U.S.C. § 271.

DAMAGES

14. Blackbird Technologies has sustained damages as a direct and proximate result of

Rite Aid’s infringement of the ‘358 patent.

15. As a consequence of Rite Aid’s past infringement of the ‘358 patent, Blackbird

Technologies is entitled to restitutionary relief against Rite Aid in the form of disgorgement of

wrongfully obtained profits pursuant to 35 U.S.C. §289 and any other appropriate relief.

PRAYER FOR RELIEF

WHEREFORE, Blackbird Technologies respectfully requests that this Court enter

judgment against Defendant, as follows:

A. Adjudging that Defendant has infringed the ‘358 patent, in violation of 35 U.S.C.

§ 271(a);

B. An award of damages to be paid by Defendant adequate to compensate Blackbird

Technologies for Defendant’s past infringement and any continuing or future infringement up

until the date such judgment is entered, and in no event less than a reasonable royalty, including

interest, costs, and disbursements pursuant to 35 U.S.C. § 284 and, if necessary to adequately

5
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compensate Blackbird Technologies for Defendant’s infringement, an accounting of all

infringing sales including, but not limited to, those sales not presented at trial;

C. Restitutionary relief against Rite Aid in favor of Blackbird Technologies,

including disgorgement of wrongfully obtained profits pursuant to 35 U.S.C. § 289 and any

other appropriate relief;

D. Ordering Defendant to continue to pay royalties to Blackbird Technologies for

infringement of the ‘358 patent on a going-forward basis;

E. Adjudging that this case is exceptional under 35 U.S.C. § 285 and awarding costs,

expenses, and attorneys’ fees to Blackbird Technologies;

F. Awarding Blackbird Technologies pre-judgment and post-judgment interest at the

maximum rate permitted by law on its damages; and

G. Granting Blackbird Technologies such further relief as this Court deems just and

proper under the circumstances.

DEMAND FOR JURY TRIAL

Blackbird Technologies demands a trial by jury on all claims and issues so triable.

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 Case 1:19-cv-02110-UNA Document 1 Filed 11/07/19 Page 7 of 7 PageID #: 7
Dated: November 7, 2019
OF COUNSEL
Wendy Verlander
wverlander@blackbird-tech.com
Jeffrey Ahdoot
jahdoot@blackbird-tech.com
Blackbird Tech LLC d/b/a
Blackbird Technologies
One Boston Place, Suite 2600
Boston, MA 02108
(617) 307-7100
STAMOULIS & WEINBLATT LLC
/s/Stamatios Stamoulis
Stamatios Stamoulis #4606
stamoulis@swdelaw.com
Richard C. Weinblatt #5080
weinblatt@swdelaw.com
800 N. West Street, Third Floor
Wilmington, DE 19801
(302) 999-1540
Attorneys for Plaintiff Blackbird Tech LLC
d/b/a Blackbird Technologies
7
Case 1:19-cv-02110-UNA Document 1-1 Filed 11/07/19 Page 1 of 3 PageID #: 8

Exhibit A
 Case 1:19-cv-02110-UNA Document 1-1 Filed 11/07/19 Page 2 of 3 PageID #: 9
USOOD666358S

(12) United States Design Patent (10) Patent No.: US D666,358 S

Albers (45) Date of Patent: . Aug. 28, 2012
(54) FACE SPONGE D589,665 S * 3/2009 Kwapis .......................... D32/40
D639,504 S *ck 6/2011 Ninomiya ........................ D28.7
(75) Inventor: Oliver Albers, Oakland, CA (US) D640,827 S 6/2011 Ninomiya ........................ D28.7
* cited by examiner
(73) Assignee: Luft Industrie Inc., Oakland, CA (US)
Primary Examiner — Zenia Bennett
**) Term:
(**) 14 Years 74) Attorney, Agent, or Firm — Onello & Mello, LLP
ey, Ag
(57) CLAM
(21) Appl. No. 29/413,560 An ornamental design for a face sponge, as shown and
(22) Filed: Feb. 16, 2012 described.
(51) LOC (9) Cl. .................................................. 28-02 DESCRIPTION
(52) U.S. Cl. .......................................................... D28/7
(58) Field of Classification Search ..................... D287, FIG. 1 is a front view of an embodiment of a face sponge, in
D28/820 22. 3O 31, 76,8599; 132/108 accordance with the present invention;
132/2O2 208 3.1732. 401/202.207. 261-267. FIG. 2 is a side view of the face sponge of FIG. 1, in accor
D4/132 135; D24/119. D7/361,395, 688;
D32/40–45
dance with the present invention:
FIG. 3 is a back view of the face sponge of FIG. 1, in accor
See application file for complete search history. dance with the present invention;
FIG. 4 is a perspective view of the face sponge of FIG. 1, in
(56) References Cited accordance with the present invention;
FIG. 5 is a top view of the face sponge of FIG. 1, in accor
U.S. PATENT DOCUMENTS dance with the present invention; and,
D371,866 S * 7/1996 Gerhart1 ........................... D28.8 FIG. 6 is a bottom view of the face sponge of FIG. 1, in
D410,493 S * 6/1999 Leveen et al. ... D19,53 accordance with the present invention.
D412.596 S * 8/1999 Tappinet al. .................... D28.7
D557,862 S * 12/2007 Tajima ............................. D28.7 1 Claim, 1 Drawing Sheet
Case 1:19-cv-02110-UNA Document 1-1 Filed 11/07/19 Page 3 of 3 PageID #: 10

U.S. Patent Aug. 28, 2012 US D666,358 S

FIG. 5 FIG. 6
 Case 1:19-cv-02110-UNA Document 1-2 Filed 11/07/19 Page 1 of 1 PageID #: 11
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

Blackbird Tech LLC d/b/a Blackbird Technologies Rite Aid Corporation

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Stamatios Stamoulis, Stamoulis & Weinblatt LLC
800 N. West Street, Third Floor, Wilmington, DE 19801
302-999-1540

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act
’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC
’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))
’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment
’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust
& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking
’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce
’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 835 Patent - Abbreviated ’ 460 Deportation
Student Loans ’ 340 Marine Injury Product New Drug Application ’ 470 Racketeer Influenced and
(Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations
’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY ’ 480 Consumer Credit
of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 490 Cable/Sat TV
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) ’ 850 Securities/Commodities/
’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) Exchange
’ 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 890 Other Statutory Actions
’ 196 Franchise Injury ’ 385 Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 891 Agricultural Acts
’ 362 Personal Injury - Product Liability ’ 751 Family and Medical ’ 893 Environmental Matters
Medical Malpractice Leave Act ’ 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 790 Other Labor Litigation FEDERAL TAX SUITS Act
’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 896 Arbitration
’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee Income Security Act or Defendant) ’ 899 Administrative Procedure
’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party Act/Review or Appeal of
’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 Agency Decision
’ 245 Tort Product Liability Accommodations ’ 530 General ’ 950 Constitutionality of
’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION State Statutes
Employment Other: ’ 462 Naturalization Application
’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration
Other ’ 550 Civil Rights Actions
’ 448 Education ’ 555 Prison Condition
’ 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict ’ 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. §§ 271, et seq.
VI. CAUSE OF ACTION Brief description of cause:
Patent Infringement
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE Colm F. Connolly DOCKET NUMBER 19-1150
DATE SIGNATURE OF ATTORNEY OF RECORD
11/07/2019 /s/Stamatios Stamoulis
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

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