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Every Penny Counts®, Inc. Provides banks, merchants and nonprofits - with U.S. and foreign patented technology - to grow and maintain passionate customers! |
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Litigation |
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The following was filed on January 25, 2007. |
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION
EVERY PENNY COUNTS, INC. CASE NO: 2:07-CV-42-FTM-99SPC Plaintiff
v. DIVISION:
BANK OF AMERICA CORPORATION MAG. SECTION: Defendant JURY TRIAL DEMANDED
COMPLAINT SEEKING DAMAGES AND NOW INTO COURT, through undersigned counsel, come Plaintiff, Every Penny Counts, Inc., and for its complaint seeking damages and permanent injunctive relief against Defendants, Bank of America Corporation and VISA U.S.A., Inc. respectfully represents as follows: I. INTRODUCTION. This is an action seeking the recovery of the significant damages sustained by Plaintiff, Every Penny Counts, Inc. (“EPC”) as a direct result of the knowing and willful infringement of its patent by Defendants, Bank of America Corporation and VISA USA, Inc. As more fully detailed below, EPC is holder of United States Patent Number 6,112,191 commonly known as the “Rounder Patent.” For a period of several years, Defendants were approached by EPC, or its predecessor in interest, concerning licensing agreement for the Rounder Patent. Defendants obtained information concerning the Rounder Patent, and its potential, now realized, for generating significant new accounts and profits for Defendants. Rather than entering into a licensing agreement, Defendants knowingly and intentionally infringed upon the Rounder Patent causing significant damage to EPC. EPC now seeks recovery of those damages together with treble damages, attorney’s fees and permanent injunctive relief. II. PARTIES, THE COURT’S JURISDICTION AND VENUE. 1. Plaintiff, EPC, a corporation organized and existing under the laws of the State of Delaware, with its principal place of business in Cape Coral, Lee County, Florida. 4. VISA engaged in systematic activities within this judicial district. This Court enjoys subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because this action arises under the laws of the United States. This Court also enjoys jurisdiction pursuant to 28 U.S.C. § 1338(a). 5. This Court has venue pursuant to 28 U.S.C. § 1391(b) as both BOA and VISA are subject to personal jurisdiction in this judicial district. Alternatively, venue is proper pursuant to 28 U.S.C. § 1400(b) because both of the Defendants have committed acts of infringement within this judicial district and have regular and established places of business within this judicial district. III. STATEMENT OF GROUNDS FOR RELIEF. 1. In August of 2000, United States Patent Number 6,112,191 (the “Rounder Patent”) was duly and regularly issued to Every Penny Counts, Inc., a corporation formed under the laws of the State of New Jersey (“OLD EPC”). A copy of the patent is attached hereto and made a part hereof as Exhibit “A.” 2. On September 2, 2004, OLD EPC reformed as EPC, the Plaintiff in this action. 3. On June 29, 2005, EPC became the sole owner of the Rounder Patent all as more fully set forth in Exhibit “B” attached hereto and made a part hereof. 4. At least as early as December 2001, OLD EPC contacted BOA to describe the Rounder Patent and to inquire of BOA’s interest in entering into a licensing agreement. 5. In or about November 2004, and for several months thereafter, EPC had written communications and discussions with BOA about the Rounder Patent and a possible licensing agreement. 6. At least as early as February 2001, OLD EPC contacted VISA about the Rounder Patent. 7. In June 2004, EPC contacted VISA concerning the Rounder Patent and proposed a licensing agreement for other business arrangements between VISA and EPC. 8. Discussions between EPC and BOA concerning the Rounder Patent and a possible licensing agreement continued into the Spring of 2005. BOA ceased further communications at that time. It apparently did so upon concluding that rather than entering into a licensing agreement with EPC, BOA would establish its own program modeled on the Rounder Patent, but without compensation to EPC. Consistent with that strategy, in or about October, 2005, BOA launched the “Keep the Change Program.” 9. The “Keep the Change Program” utilizes systems that falls within the scope of at least one claim of the Rounder Patent. 10. Upon information and belief, prior to institution of the “Keep the Change Program,” both BOA and VISA were aware of the Rounder Patent, knew that EPC is the lawful owner of the Rounder Patent and knew or should have known that the “Keep the Change Program” would infringe on the Rounder Patent. 11. As the “Keep the Change Program” employs systems that fall within the scope of the Rounder Patent, the Defendants’ actions constituted an infringement on the Rounder Patent. 12. BOA and VISA willfully infringed, and continue to infringe willfully, knowingly and intentionally, upon EPC’s Rounder Patent. 13. As a result of the infringing acts committed by the Defendants, EPC has suffered and continues to suffer damages which will continue unless this Court enjoins such acts of infringement. 14. EPC demands a trial by jury. WHEREFORE, Every Penny Counts, Inc. respectfully prays that, after due proceedings, there be judgment in its favor and against Defendants, Bank of America Corporation and VISA, U.S.A., Inc. and that Every Penny Counts be granted the following relief:
Respectfully submitted,
and
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