IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION RICK MERITT INVESTEMNTS,

LTD. d/b/a Outback Wildlife Feeders Plaintiff v. ALL SEASONS FEEDERS, LTD; ATASCOSA WILDLIFE SUPPLY, INC.; FEEDER MAX, LLC; Defendants

CASE NO.: JURY DEMAND

ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT Plaintiff Rick Meritt Investments, Ltd. d/b/a Outback Wildlife Feeders files this Original Complaint against Defendants All Seasons Feeders, Ltd.; Atascosa Wildlife Supply, Inc.; and Feeder Max, LLC (Feeder Max) (all collectively referred to as Defendants) and alleges as follows: I. NATURE OF THE SUIT 1. This is a claim for patent infringement arising under the patent laws of the United

States, Title 35 of the United States Code. II. THE PARTIES 2. Plaintiff Rick Meritt Investments, Ltd. d/b/a Outback Wildlife Feeders

(Outback) is a Texas limited partnership that maintains its principal place of business at 5197 FM 2685, Gilmer, Texas 75645, which is located in the Eastern District of Texas. 3. Defendant All Seasons Feeders, Ltd. (All Seasons) is a Texas limited

partnership that maintains its principal place of business at 8424 Highway 87, San Antonio, Texas 78263. This defendant does business in Texas and within this District and can be served

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with process through its Registered Agent for Service, Burnell Gates, 8424 US Hwy 87 E, San Antonio, Texas 78263. 4. Defendant Atascosa Wildlife Supply, Inc. (Atascosa) is a Texas corporation

that maintains its principal place of business at 1204 Zanderson, Jourdanton, Texas 78026. This defendant does business in Texas and within this District and can be served with process through its Registered Agent for Service, Lawrence Friesenhahn, 1204 Zanderson Ave, Jourdanton, Texas 78026. 5. Defendant Feeder Max, LLC (Feeder Max) is a Texas limited liability

corporation that maintains its principal place of business at 3385 Roy Orr Blvd, Grand Prairie, Texas 75050. This defendant does business in Texas and within this District and can be served with process through its Registered Agent for Service, Edward Castro, 3385 Roy Orr Blvd, Grand Prairie, Texas 75050. III. JURISDICTION AND VENUE 6. This action arises under the patent laws of the United States, Title 35 of the

United States Code. The Courts jurisdiction over this action is proper under the above statutes, including 35 U.S.C. 271 et seq., 28 U.S.C. 1331, 28 U.S.C. 1332, and 28 U.S.C. 1338. 7. Personal jurisdiction exists generally over Defendants pursuant to 28 U.S.C.

1391 because they have sufficient minimum contacts with the forum as a result of business conducted within the State of Texas and within this district. Personal jurisdiction also exists specifically over Defendants because of Defendants conduct in making, using, selling, and/or offering to sell, directly or indirectly infringing products, and/or Defendants contributory infringement or inducement of infringement within the State of Texas and within this District.

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8.

Venue is proper in this Court under 28 U.S.C. 1391(b), (c), and (d), as well as

28 U.S.C., 1400(b) for the reasons set forth above. Furthermore, venue is proper because Defendants solicit and establish business relationships with individuals and businesses in this District, which involve infringing products as discussed below. Each act of Defendants directly or indirectly infringing conduct in this District gives rise to proper venue. IV. PATENT INFRINGEMENT 9. This cause of action asserts infringement of three patentsUnited States Patent

No. 7,370,605 B2 entitled Animal Feeding Apparatus (the 605 Patent), United States Design Patent No. D599,503 S entitled Feeding Tube (the 503 Patent), and United States Design Patent No. D629,975 S entitled Feeding Tube (the 975 Patent). These patents are collectively referred to as the Patents-in-Suit. 10. A true and correct copy of the 605 Patent is attached hereto as Exhibit A; a true

and correct copy of the 503 Patent is attached hereto as Exhibit B; and a true and correct copy of the 975 Patent is attached hereto as Exhibit C. 11. Outback is the current owner of all rights, title, and interest in and under the 605

Patent. The 605 Patent duly and legally issued on May 13, 2008 with Rick Meritt as the named inventor. 12. Outback is the current owner of all rights, title, and interest in and under the 503

Patent, which duly and legally issued on September 1, 2009 with Rick Meritt as the named inventor. The 503 Patent has a term of 14 years. 13. Outback is the current owner of all rights, title, and interest in and under the 975

Patent, which duly and legally issued on December 28, 2010 with Rick Meritt as the named inventor. The 975 Patent has a term of 14 years.

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14.

Through its business operations and manufacturing facility located in Gilmer,

Texas, Outback manufactures and sells animal feeders, including gravity flow extended tube protein feeders. Several years ago, Outback began manufacturing gravity flow feeders with a uniquely designed extended tube. This extended tube design enables unattended feeding of animals while simultaneously preventing spillage of feed and protecting the feed from moisture contamination. 15. Defendants are in the business of making, using, selling, and/or offering for sale

animal feeders, including extended tube protein feeders that incorporate the features and designs of the Patents-in-Suit. Defendants offer these products to customers in the United States,

including Texas and within this District through distributors, via their respective websites, and/or through various publications such as magazines, journals, and newspapers. In offering these extended tube protein feeders, Defendants make, use, sell, and/or offer for sale products that infringe one or more claims of the Patents-in-Suit. V. CLAIM ONE THE 605 PATENT 16. The allegations of paragraphs 1-15 above are incorporated by reference as if fully

set forth herein. 17. Defendants have been and are infringing the 605 Patent by making, using,

selling, and/or offering for sale in the United States, and within this District, directly and/or by inducement, without authority, products that fall within the scope of the 605 Patent. 18. Defendants have been and are actively inducing the infringement of the 605

Patent among themselves and by others. Outback contends that Defendants had knowledge of the 605 Patent either from communications with Outback, from markings on Outbacks products, from Outbacks advertisements, and/or from general information available in the

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wildlife feeder industry.

With knowledge of the 605 Patent, Defendants induce others,

including their retail partners, to make, use, sell, and/or offer for sale extended tube feeders that encompass the features and/or designs of the 605 Patent. 19. Defendants infringement continues to date and will continue unless Defendants

are enjoined by the Court. 20. The Defendants open and notorious infringement of the 605 Patent has

fundamentally undermined Outbacks ability to continue to successfully commercialize the patented technology it owns or to otherwise enjoy the benefit of its exclusive federally issued patent rights. Defendants failure to recognize the 605 Patent and Outbacks rights as the patent holder has and continues to undermine the value of the 605 Patent for which Outback has no adequate remedy at law. 21. Outback has suffered, and will continue to suffer, irreparable harm and damage

unless preliminary and final injunctions are issued enjoining Defendants from infringing upon the Patents. All Seasons 22. Defendant All Seasons infringes the 605 Patent by making, using, selling, and/or

offering to sell products that fall within the scope of the 605 Patent. Specifically, All Seasons infringes, literally and/or under the doctrine of equivalents, at least Claim 1 of the 605 Patent at least through the manufacture use, selling, and/or offering to sell extended tube protein feeders, including at least the following: 1000 pound, 2000 pound, and/or 3000 pound extended tube feeders and the Hercules extended tube feeder. Atascosa

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23.

Defendant Atascosa infringes the 605 Patent by making, using, selling, and/or

offering to sell products that fall within the scope of the 605 Patent. Specifically, Atascosa infringes, literally and/or under the doctrine of equivalents, at least Claim 1 of the 605 Patent at least through the manufacture use, selling, and/or offering to sell extended tube protein feeders, including at least the following: 1000 pound, 2000 pound, and/or 3000 pound extended tube feeders as well as. FeederMax 24. Defendant FeederMax infringes the 605 Patent by making, using, selling, and/or

offering to sell products that fall within the scope of the 605 Patent. Specifically, FeederMax infringes, literally and/or under the doctrine of equivalents, at least Claim 1 of the 605 Patent at least through the manufacture use, selling, and/or offering to sell extended tube protein feeders, including at least the following: 400 pound, 600 pound, 800 pounds, 1000 pound, 2000 pound, and/or 3000 pound extended tube feeders. 25. Defendants had knowledge of the 605 Patent as noted above, and therefore their

infringement of the 605 Patent has been and is willful. Each of the Defendants listed herein have had actual or constructive notice and knowledge of the Outback patents and their infringement prior to the filing of this lawsuit. VI. CLAIM TWO THE 975 PATENT 26. The allegations of paragraphs 1-25 above are incorporated by reference as if fully

set forth herein. 27. Defendants have been and are infringing the 975 Patent by making, using,

selling, and/or offering for sale in the United States, and within this District, directly and/or by inducement, without authority, products that fall within the scope of the 975 Patent.

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28.

Defendants infringement continues to date and will continue unless Defendants

are enjoined by the Court. 29. Defendants open and notorious infringement of the 975 Patent has

fundamentally undermined Outbacks ability to continue to successfully commercialize the patented designs it owns or to otherwise enjoy the benefit of its exclusive federally issued patent rights. Defendants failure to recognize the 975 Patent and Outbacks rights as the patent holder has and continues to undermine the value of the 975 Patent for which Outback has no adequate remedy at law. Outback contends that Defendants had knowledge of the 975 Patent either from communications with Outback, from markings on Outbacks products, from Outbacks advertisements, and/or from general information available in the wildlife feeder industry. 30. Outback has suffered, and will continue to suffer, irreparable harm and damage

unless preliminary and final injunctions are issued enjoining Defendants from infringing upon the Patents. All Seasons 31. All Seasons has been and is manufacturing, distributing, marketing, and/or selling

extended tube feeders throughout the State of Texas, including this District, that infringe the 975 Patent. The ordinary observer with knowledge of the prior art, giving such attention to the designs as a purchaser would give, is likely to mistake the design of the infringing products for the designs shown in the 975 Patent. All Seasons infringing designs are literally the same and/or similar and/or equivalent in design and/or effect to the 975 Patent. 32. Examples of All Seasons products that use the patented designs are shown

below, adjacent to the corresponding patent drawing:

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975 Patent Figure 1 All Seasons Tube

975 Patent Figure 4

All Seasons Tube

33.

Despite its notice and knowledge of the 975 Patent, All Seasons continues to

make, use, sell, and/or offer to sell its infringing products. All Seasons infringement of the 975 Patent is deliberate, willful, and intentional and in bad faith and continues despite All Seasons full knowledge of the 975 Patent. Atascosa 34. Atascosa has been and is manufacturing, distributing, marketing, and/or selling

extended tube feeders throughout the State of Texas, including this District, that infringe the 975 Patent. The ordinary observer with knowledge of the prior art, giving such attention to the designs as a purchaser would give, is likely to mistake the design of the infringing products for the designs shown in the 975 Patent. Atascosas infringing designs are literally the same and/or similar and/or equivalent in design and/or effect to the 975 Patent. 35. Examples of Atascosa products that use the patented designs are shown below,

adjacent to the corresponding patent drawing:

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975 Patent Figure 1 Atascosa Tube

975 Patent Figure 4

Atascosa Tube

36.

Despite its notice and knowledge of the 975 Patent, Atascosa continues to make,

use, sell, and/or offer to sell its infringing products. Atascosas infringement of the 975 Patent is deliberate, willful, and intentional and in bad faith and continues despite Atascosas full knowledge of the 975 Patent. FeederMax 37. FeederMax has been and is manufacturing, distributing, marketing, and/or selling

extended tube feeders throughout the State of Texas, including this District, that infringe the 975 Patent. The ordinary observer with knowledge of the prior art, giving such attention to the designs as a purchaser would give, is likely to mistake the design of the infringing products for the designs shown in the 975 Patent. FeederMaxs infringing designs are literally the same and/or similar and/or equivalent in design and/or effect to the 975 Patent. 38. Examples of FeederMax products that use the patented designs are shown below,

adjacent to the corresponding patent drawing:

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975 Patent Figure 1

FeederMax Tube

975 Patent Figure 4

FeederMax Tube

39.

Despite its notice and knowledge of the 975 Patent, FeederMax continues to

make, use, sell, and/or offer to sell its infringing products. FeederMaxs infringement of the 975 Patent is deliberate, willful, and intentional and in bad faith and continues despite FeederMaxs full knowledge of the 975 Patent. VII. CLAIM THREE THE 503 PATENTS 40. The allegations of paragraphs 1-39 above are incorporated by reference as if fully

set forth herein. 41. Defendants have been and are infringing the 503 Patent by making, using,

selling, and/or offering for sale in the United States, and within this District, directly, contributory, and/or by inducement, without authority, products that fall within the scope of the 503 Patent. 42. Defendants infringement continues to date and will continue unless Defendants

are enjoined by the Court.

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43.

Defendants open and notorious infringement of the 503 Patent has

fundamentally undermined Outbacks ability to continue to successfully commercialize the patented designs it owns or to otherwise enjoy the benefit of its exclusive federally issued patent rights. Defendants failure to recognize the 503 Patent and Outbacks rights as the patent holder has and continues to undermine the value of the 503 Patent for which Outback has no adequate remedy at law. Outback contends that Defendants had knowledge of the 503 Patent either from communications with Outback, from markings on Outbacks products, from Outbacks advertisements, and/or from general information available in the wildlife feeder industry. 44. Outback has suffered, and will continue to suffer, irreparable harm and damage

unless preliminary and final injunctions are issued enjoining Defendants from infringing upon the Patents. All Seasons 45. All Seasons has been and is manufacturing, distributing, marketing, and/or selling

extended tube feeders throughout the State of Texas, including this District, that infringe the 503 Patent. The ordinary observer with knowledge of the prior art, giving such attention to the designs as a purchaser would give, is likely to mistake the design of the infringing products for the designs shown in the 503 Patent. All Seasons infringing designs are literally the same and/or similar and/or equivalent in design and/or effect to the 503 Patent. 46. Examples of All Seasons products that use the patented designs are shown

below, adjacent to the corresponding patent drawing:

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503 Patent Figure 1

All Seasons Four Tube Feeder

47.

Despite its notice and knowledge of the 503 Patent, All Seasons continues to

make, use, sell, and/or offer to sell its infringing products. All Seasons infringement of the 503 Patent is deliberate, willful, and intentional and in bad faith and continues despite All Seasons full knowledge of the 503 Patent. Atascosa 48. Atascosa has been and is manufacturing, distributing, marketing, and/or selling

extended tube feeders throughout the State of Texas, including this District, that infringe the 503 Patent. The ordinary observer with knowledge of the prior art, giving such attention to the designs as a purchaser would give, is likely to mistake the design of the infringing products for the designs shown in the 503 Patent. Atascosas infringing designs are literally the same and/or similar and/or equivalent in design and/or effect to the 503 Patent. 49. Examples of Atascosa products that use the patented designs are shown below,

adjacent to the corresponding patent drawing:

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503 Patent Figure 1

Atascosa Four Tube Feeder

50.

Despite its notice and knowledge of the 503 Patent, Atascosa continues to make,

use, sell, and/or offer to sell its infringing products. Atascosas infringement of the 503 Patent is deliberate, willful, and intentional and in bad faith and continues despite Atascosas full knowledge of the 503 Patent. FeederMax 51. FeederMax has been and is manufacturing, distributing, marketing, and/or selling

extended tube feeders throughout the State of Texas, including this District, that infringe the 503 Patent. The ordinary observer with knowledge of the prior art, giving such attention to the designs as a purchaser would give, is likely to mistake the design of the infringing products for the designs shown in the 503 Patent. FeederMaxs infringing designs are literally the same and/or similar and/or equivalent in design and/or effect to the 503 Patent. 52. Examples of FeederMax products that use the patented designs are shown below,

adjacent to the corresponding patent drawing:

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503 Patent Figure 1

FeederMax Four tube feeder

53.

Despite its notice and knowledge of the 503 Patent, FeederMax continues to

make, use, sell, and/or offer to sell its infringing products. FeederMaxs infringement of the 503 Patent is deliberate, willful, and intentional and in bad faith and continues despite FeederMaxs full knowledge of the 503 Patent. VIII. INJUNCTION 54. The allegations of paragraphs 1-53 above are incorporated by reference as if fully

set forth herein. 55. As stated herein, Defendants will continue to infringe the Patents-in-Suit unless

enjoined by this Court. Outback has suffered, and will continue to suffer, irreparable harm and damage unless preliminary and final injunctions are issued enjoining the Defendants from infringing upon the Patents-in-Suit. 56. Outback therefore requests that this Court enter an order under 35 U.S.C. 283

preliminarily and permanently enjoining Defendants from continuing to make or use extended tube feeders utilizing the patented technology and designs.

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IX. DAMAGES A. Reasonable Royalty 57. The allegations of paragraphs 1-56 above are incorporated by reference as if fully

set forth herein. 58. For the above-described infringement, Outback has been injured and seeks

damages to adequately compensate it for Defendants infringement of the Patents-in-Suit. Such damages should be no less than the amount of a reasonable royalty under 35 U.S.C. 284. B. Enhanced Damages, Attorneys Fees, and Expenses 59. The allegations of paragraphs 1-58 above are incorporated by reference as if fully

set forth herein. 60. As stated above, Outback contends that Defendants had knowledge of and

willfully infringed the Patents-in-Suit. Outback requests that the Court enter a finding of willful infringement and enhanced damages under 35 U.S.C. 284 up to three times the amount found by the trier of fact. 61. Outback further requests that the Court enter an order finding that this is an

exceptional case within the meaning of 35 U.S.C. 285. Pursuant to such an order Outback seeks recovery of its reasonable attorneys fees and expenses. X. PRAYER FOR RELIEF 62. a. Outback respectfully requests the following relief: A judgment that the Patents-in-Suit are infringed, directly and/or indirectly, by

Defendants as described herein; b. A judgment and order preliminarily and permanently enjoining each Defendant,

its agents, employees, representatives, successors and assigns, and those acting in privity

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or in concert with them, from further infringement, contributory infringement and/or inducing infringement of the Patents-in-Suit; c. A judgment and order requiring each Defendant to pay Outback damages under

35 U.S.C. 284, including treble damages for willful infringement as provided by 35 U.S.C. 284, and supplemental damages for any continuing post-verdict infringement up until entry of the final Judgment with an accounting as needed; d. A judgment and order requiring each Defendant to pay Outback pre-judgment and

post-judgment interest on the damages awarded; e. A judgment and order finding this to be an exceptional case and requiring each

Defendant to pay the costs of this action (including all disbursements) and attorneys fees as provided by 35 U.S. C. 285; f. Such other and further relief as the Court deems just and proper. XII. JURY DEMANDED 63. Outback requests a jury trial of all issues triable of right by a jury.

Respectfully submitted,

_________________________________ DEREK GILLILAND TX STATE BAR NO. 24007239 NIX PATTERSON & ROACH, L.L.P. 205 Linda Drive Daingerfield, Texas 75638 903.645.7333 (telephone) 903.645.5389 (facsimile) dgilliland@nixlawfirm.com

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BEN KING TX STATE BAR NO. 24048592 NIX PATTERSON & ROACH L.L.P. 2900 St. Michael Drive, Suite 500 Texarkana, Texas 75503 903.223.3999 (telephone) 903.223.8520 (facsimile) benking@nixlawfirm.com ANTHONY BRUSTER TX STATE BAR NO. 24036280 D. NEIL SMITH TX STATE BAR NO. 00797450 EDWARD CHIN TX STATE BAR NO.. 50511688 NIX PATTERSON & ROACH, L.L.P. 5215 N. OConnor Blvd., Suite 1900 Irving, Texas 75039 972.831.1188 (telephone) 972.444.0716 (facsimile) akbruster@nixlawfirm.com edchin@me.com ATTORNEYS FOR PLAINTIFF

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