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UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE



Archer Mobility Products, LLC, )
)
Plaintiff, )
)
v. ) Civil Action No. ________
)
Penco Medical, Inc., ) DEMAND FOR JURY TRIAL
)
Defendant. )


ARCHER MOBILITY PRODUCTS, LLC COMPLAINT FOR DECLARATORY
JUDGMENT FOR NON-INFRINGEMENT

Plaintiff Archer Mobility Products, LLC (Archer), through counsel, hereby
brings its Complaint for Declaratory Judgment against Penco Medical, Inc. (Penco),
and alleges as follows:
NATURE OF ACTION
1. This is an action for a declaratory judgment of non-infringement of
United States Patent No. D442,123 (the 123 Patent) under 28 U.S.C. 220l
(Declaratory Judgment Act). Archer also seeks declaratory judgment that the '123 patent
is invalid.
PARTIES
2. Archer is a limited liability New Hampshire company with a principal
place of business at 20 Circle Drive, PO Box 611, Holderness NH 03245.
3. Upon information and belief, Penco is a corporation organized and
existing under the laws of the State of Pennsylvania, with a principal place of business at
One Ice Lake Drive, Mountaintop, PA 18707.
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JURISDICTION AND VENUE
4. This is an action arising under the Patent Laws of the United States, 35
U.S.C. 101 and 171 et seq. and the Federal Declaratory Judgment Act, 28 U.S.C.
2201 and 2202.
5. Upon information and belief, this court has personal jurisdiction over
Penco through Pencos purposeful minimum contacts with New Hampshire, by Pencos
transacting of business in this State, through Pencos selling of its goods and services in
connection with the alleged patent which is the subject of the 123 Patent, and through
Pencos contact with Archer.
6. Venue is proper pursuant to 28 U.S.C. 139l(b)-(c) because the events
and communications between the parties that give rise to Archers claim for declaratory
relief occurred in New Hampshire, and because upon information and belief, Penco is
subject to the personal jurisdiction in this Court.
7. An actual case or controversy has arisen between the parties. Penco
demanded that Archer cease and desist from any use and/or sale of Archers Universal
Walker Ski Glides product, and has asked Archer for an accounting of damages in order
to determine the damages owned to Penco.
FACTS
DEFENDANT'S THREAT OF LITIGATION
8. On June 3, 2014 Penco sent a threating letter to Archer which alleged that
the sales, and offering for sale, of Archers' Universal Walker Ski Glides product
constitutes patent infringement and asserted that it would bring a lawsuit against Archer
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for said infringement if Archer does not immediately cease and desist their commercial
activities involving their Universal Walker Ski Glides product. Exhibit A.
9. As a result of Penco's threat of litigation and the circumstances
surrounding this threat, an actual, present, and justiciable controversy has arisen between
Archer and Penco regarding Archer's sale of its Top Glide product.
PLAINTIFF'S NON-INFRINGEMENT OF
DEFENDANT'S ALLEGED PATENT

10. The '123 patent is limited in scope to the design set forth in the figures in
the patent.
11. There are many differences between the visual appearance of Archer's
Universal Walker Ski Glides and the design covered by the '123 patent, including
differences in plug shape and ski shape, among others.
12. Archers Universal Walker Ski Glides contains a square plug. In contrast,
Penco's '123 patent has a figure showing the plug as circular in shape.
13. As a further example, the 123 patent figures show the front section of the
base of the glider to have straight lined edges. In contract, Archers Universal Walker Ski
Glides products front section is curved.
14. As a further example, the 123 patent figures show a tab in the plug of the
invention. In contract, Archers Universal Walker Ski Glides products does not contain
any tabs in the plug.
15. Archer's product does not infringe on the '123 patent because an ordinary
observer would not believe that the Archer product is the same or substantially similar to
the design required by the '123 patent.

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INVALIDITY OF DEFENDANT'S ALLEGED PATENT
16. The '123 patent is invalid and unenforceable for failure to comply with
one or more of the conditions for patentability set forth in the Patent Laws of the United
States Code, Title 35 at least in Sections 102, 103, 112, and 171.
17. The '123 patent should be declared invalid due to the functional nature of
Pencos product.
18. Pencos patent, including, but not limited to, the plug and the glider is
directed to a set of functional features used to support and utilize the walker.
19. Penco cannot legally own or assert design patent rights to a functional
design.
COUNT 1: Declaration of Non-Infringement of Defendant's Alleged Patent
20. Archer repeats and re-alleges each and every allegation set forth in the
preceding paragraphs of this Complaint.
21. Penco has asserted that Archer' sale of its Universal Walker Ski Glides
product infringes the '123 patent and has threatened to bring a lawsuit against Archer. An
actual, present, and justiciable controversy has arisen between Penco and Archer
concerning Archers use and sale of its Universal Walker Ski Glides.
22. Archer seeks declaratory judgment that its manufacture, use, offer for sale,
and/or sale of the Universal Walker Ski Glides product does not infringe on Penco's
alleged design patent, and does not otherwise violate any of Pencos patent rights under
federal law including, but not limited to, 35 U.S.C. 101 and 171, et seq.


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COUNT 2: Declaration of Invalidity and
Unenforceability of Defendant's Alleged Patent

23. Archer repeats and re-alleges each and every allegation set forth in the
preceding paragraphs of this Complaint.
24. The '123 patent for a walker glide with retractable keyed plug is functional
and should therefore be invalidated.
25. Archer seeks declaratory judgment that the '123 patent is invalid and/or
unenforceable, for at least these grounds, and for any and all other grounds of invalidity
and unenforceability available under federal law, the Patent Act, including, but not
limited to, 35 U.S.C. 102, 103, 112, and 171.
26. Archer reserves the right to amend its allegations and/or this Complaint to
add any further defenses once further discovery has been conducted in this matter.
PRAYER FOR RELIEF
WHEREFORE, pursuant to the Patent Act, 35 U.S.C. 101 and 171, et seq., and
the Federal Declaratory Judgment Act, 28 U.S.C. 2201 and 2202, Archer prays for
relief as follows:
A. Declare that Archer and their customers and suppliers have the right to
make, use, sell, offer for sale the Universal Walker Ski Glides product and that this
product does not infringe Penco's design patent rights, if any rights are established;
B. Declare that Penco's '123 patent entitled "Walker Glide with Retractable
Keyed Plug" is invalid and unenforceable;
C. Award Archer its costs and Attorney's fees under 15 U.S.C. 1117 and 35
U.S.C. 285, and any other applicable laws; and,
D. Awarding such other relief as this Court may deem just and proper.
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JURY TRIAL DEMAND
Archer demands a trial by jury on all issues triable by right of jury.
Date: June 10, 2014 Respectfully submitted by,
Attorneys for Plaintiff
Archer Mobility Products, LLC

/s/ Gary E. Lambert
Gary E. Lambert (NH Bar #16245)
LAMBERT & ASSOCIATES
92 State Street
Boston, MA 02109
Telephone: (617) 720-0091
Facsimile: (617) 720-6307
lambert@lambertpatentlaw.com