Lawrence C.

Hersh Of Counsel
Attorney at Law Theodore F. Shiells
17 Sylvan Street Texas State Bar No. 00796087
Suite 102B Shiells Law Firm P.C.
Rutherford, New Jersey 07070 1201 Main Street Suite 2470
Tel: (201) 507-6300 Dallas, Texas 75202
Fax: (201) 507-6311 Tel: (214) 979-7312
lh@hershlegal.com Fax: (214) 979-7301
tfshiells@shiellslaw.com

Attorneys for Plaintiff Simon Nicholas Richmond



IN THE UNITED STATES DISTRICT COURT
FOR DISTRICT OF NEW JERSEY
_______________________________________________
SIMON NICHOLAS RICHMOND, )
)
Plaintiff, )
)
v. ) Civil Action No.
) _______
KMART CORP. ) MLC-DEA
)
Defendant. )
_____________________________________________ )

SEVERED FIRST AMENDED COMPLAINT AND JURY DEMAND




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SEVERED FIRST AMENDED COMPLAINT AND JURY DEMAND
Plaintiff Simon Nicholas Richmond (Richmond or Plaintiff), for his
claims against Defendant Kmart Corp., (Kmart or Defendant) makes and files
this Complaint and alleges as follows:
1. STATEMENT OF RELATED CASES AND PRIOR PROCEEDINGS
This case is related to Simon Nicholas Richmond v. Winchance Solar Fujian
Technology Co. ltd., et al., 13-cv-1959 (MLC-DEA), and alleges infringement of
the same United States Patents that are at issue in the aforementioned case, i.e.,
United States Patent Nos. D554,284. This case is further related to case docket
nos. 13-cv-1944 (MLC-DEA), 13-cv-1949 (MLC-DEA), 13-cv-1950 (MLC-DEA),
13-cv-1951 (MLC-DEA), 13-cv-1952 (MLC-DEA), 13-cv-1953 (MLC-DEA), 13-
cv-1954 (MLC-DEA), 13-cv-1957 (MLC-DEA), 13-cv-1959 (MLC-DEA), 13-cv-
1960 (MLC-DEA), 13-cv-2916 (MLC-DEA), all of which have been consolidated
with Simon Nicholas Richmond v. Lumisol, et al., 13-cv-1944 (MLC-DEA).
The allegations contained in this Complaint against Defendant were
originally filed in Simon Nicholas Richmond v. Winchance Solar Fujian
Technology Co. ltd., et al., 13-cv-1959 (MLC-DEA). In an Order dated July 3,
2014, the claims against Defendant Kmart were severed, and Plaintiff was ordered




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to file a severed complaint against each individual defendant in Case No. 13-cv-
1959 (MLC-DEA) by August 1, 2014. (Case No. 13-cv-1944, Dkt. 122, p.10).
2. THE PARTIES
A. Plaintiff Richmond.
1. Plaintiff Richmond is an individual and a resident of New Jersey.
B. Defendant.
2. Kmart Corp. (Kmart) is a corporation organized and existing under
the laws of the State of Michigan, having a principal place of business at 3333
Beverly Road, Hoffman Estates, Illinois 60179. Kmart may be served through its
agent for service of process at The Corporation Trust Company, 1209 Orange
Street, Wilmington, Delaware 19801.
3. Service of the prior Original and First Amended Complaints in 13-cv-
1959 (MLC-DEA) was previously properly effectuated on Defendant.
3. SUBJECT MATTER JURISDICTION
4. This is an action for patent infringement arising under the patent laws
of the United States, Title 35, United States Code, including 35 U.S.C. 271 and
281-285. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331
and 1338(a).




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4. PERSONAL JURISDICTION AND VENUE
A. General.
5. Personal jurisdiction over Defendant is proper pursuant to New Jersey
Long-Arm Statute, N.J. CT. R. 4:4-4 and principles of due process.
6. Kmart has sufficient minimum contacts with New Jersey and this
district and the maintenance of this suit does not offend traditional notions of fair
play and substantial justice.
B. Specific Jurisdiction.
7. Personal jurisdiction over Defendant is proper under principles of
specific jurisdiction.
8. Upon information and belief, Defendant has transacted and solicited
business in New Jersey and in this district related to the subject matter of the
claims alleged herein and, upon information and belief, has committed direct
infringement in this state and district by importing, offering to sell and/or selling
goods infringing one or more of the Patents-in-Suit, to customer(s) in this state.
9. The infringement by Defendant that is the subject of the claims
alleged has caused Plaintiff to suffer damages and other losses in New Jersey and
this district, a result that was reasonably foreseeable to Defendant at the time




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Defendant committed its misconduct.
C. General Jurisdiction.
10. Personal jurisdiction over Defendant is also proper under principles of
general jurisdiction in that each United States Defendant either resides in this state
and district and/or has regularly and purposefully conducted business in New
Jersey and this district.
D. Venue.
11. Venue also properly lies in this district pursuant to 28 U.S.C.
1400(b) because Defendant has committed acts of infringement in this district.
12. Venue also properly lies in this district under 28 U.S.C. 1391(b)(2)
and/or (3) because, upon information and belief, either a substantial part of the
events or omissions giving rise to the claims recited below occurred in this district,
or a substantial part of the property that is the subject of the action is in this
district, or because there is no district in which the action may otherwise be
brought as provided in 28 U.S.C. 1391, and this court has personal jurisdiction
over Defendant.
5. FACTUAL BACKGROUND
A. Plaintiffs Patents-in-Suit




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13. For many years, Richmond has engaged in the development,
manufacture, and sale of solar-powered garden lighting. Richmond has taken steps
to protect his innovative inventions and designs. In particular, Richmond owns
United States utility and design patents relating to his solar-powered garden lights.
14. Richmond is the inventor and owner of all right, title, and interest to
the United States patent number D554,284, entitled Solar Powered Light,
(D284 Cap Design Patent), which duly and legally issued to Richmond on
10/30/2007.
15. Plaintiffs D284 Patent is valid and enforceable.
16. Richmond continues to engage in the development and sale of solar-
powered garden lighting and continues to take steps to protect his innovative
inventions and designs and in this regard has applied for additional patent
protection for his inventions. For example, on March 29, 2012, United States
Patent Publication No. US 2012/0075104 A1 (the 104 Published Application)
was published, and on April 5, 2012, United States Patent Publication No. US
2012/0081888 A1 (the 888 Published Application) was published. Copies of
the 104 and 888 Published Applications may be obtained for free from the
official United States Patent and Trademark website, uspto.gov.




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17. At all times relevant to this action, Richmond has complied with any
notice provisions of 35 U.S.C. 287 as they may relate to the Patents-in-Suit.
B. Facts relevant to Defendant
18. Kmart Corp. is a wholly owned subsidiary of Kmart Management
Corp., which is a wholly owned subsidiary of Kmart Holding Corp., which is a
wholly owned subsidiary of Sears Holdings Corp.
19. According to the first page of Sears Holdings 2013 Annual Report:
Sears Holdings Corporation ("Holdings") is the parent company of Kmart
Holding Corporation ("Kmart") and Sears, Roebuck and Co. ("Sears").
Holdings (together with its subsidiaries, "we," "us," "our," or the
"Company") was formed as a Delaware corporation in 2004 in connection
with the merger of Kmart and Sears (the Merger) on March 24, 2005. . . .
We currently operate a national network of stores with 1,980 full-line and
specialty retail stores in the United States operating through Kmart and Sears
and 449 full-line and specialty retail stores in Canada operating through
Sears Canada Inc. ("Sears Canada"), a 51%-owned subsidiary. Further, we
operate a number of websites under the sears.com and kmart.com banners
which offer more than 110 million products and provide the capability for




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our members and customers to engage in cross-channel transactions such as
free store pickup; buy in store/ship to home; and buy online, return in store.
20. According to the Whois.com registrant information, the owner of
both sears.com and kmart.com is Sears Brands LLC, which is a wholly owned
subsidiary of Sears Holdings Corporation.
21. An example of an accused infringing product believed to be sold in
their Kmart stores is entitled SOLAR COLOR CHANGING LED GLASS ORB
set. Although the item is packaged in a Garden Oasis box (which is a brand used
in the Kmart stores), and has the model number KSN: 04012986-8, where
KSN is believed to stand for Kmart Serial Number, the bottom of the box
shows the stylized sears logo, the words Distributed by Sears, Roebuck and Co.
Hoffman Estates, IL 60179, and the sears.com website address, owned by Sears
Brands LLC.
22. Defendant has imported, sold, exposed for sale or offered for sale
accused solar lighting products supplied by vendors other than the named
defendants in the cases consolidated under Case No. 13-cv-1944 (D.N.J.).
23. Since issuance of one or more of the foregoing Richmond patents,
Defendant has or has been importing, exposing for sale, offering for sale, or selling




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the following products:
a) Moonrays Verona Light Models
24. In addition to the products identified in the preceding paragraph,
Defendant has or has been importing, exposing for sale, offering for sale, and
selling the solar lighting products identified in Exhibit A.
6. INFRINGEMENT OF PLAINTIFFS PATENTS
Count 1 Kmarts Direct Infringement of D284 Patent

25. The allegations of Paragraphs 1-24 are incorporated by reference as if
fully set forth again herein.
26. Kmart has notice of Plaintiffs rights in the D284 Patent.
27. Upon information and belief, Kmart directly infringes, and has
infringed, Plaintiffs D284 Cap Design Patent by, at-least, exposing for sale,
offering to sell, and selling one or more solar-powered garden light products that
infringe D284 Patent. Upon information and belief, those solar-powered garden
lights include, at least, the following products:
a) Moonrays Verona Light Models.
28. The attached Preliminary Product List - Kmart, attached as Exhibit
A, contains a non-comprehensive list of products that, upon information and belief,




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are believed to constitute infringement of Richmonds patents, where a Y under
the column labeled D284 Patent indicates that the product identified in the
corresponding row is believed to be an infringement of Plaintiffs D284 Cap
Design Patent.
29. Upon information and belief, Kmart has and is exposing for sale,
offering to sell, and selling other solar-powered garden light products which
infringe Plaintiffs D284 Cap Design Patent and will continue to do so unless
restrained by this Court.
Count 2 Willfulness of Kmarts Infringement

30. The allegations of Paragraphs 1-29 are incorporated by reference as if
fully set forth again herein.
31. Upon information and belief, Kmart has had actual knowledge of
Plaintiffs D284 Patents, and knowledge that its solar-powered garden lights as
accused of infringement of these patents earlier in this Complaint (Accused
Infringing Products) would infringe Plaintiffs D284 Patents if imported into,
offered for sale or sold in the United States. Kmart is believed to have had such
knowledge long prior to the filing of Plaintiffs Original Complaint against Kmart
in Case No. 13-cv-1959 (D.N.J.). As a result, Defendants infringement of




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Plaintiffs Patent is willful.
32. The allegations and factual contentions set forth in this Count are
likely to have evidentiary support after a reasonable opportunity for further
investigation or discovery. See Fed. R. Civ. P. 11(b)(3).
7. PLAINTIFFS DAMAGES AND IRREPARABLE HARM

33. Richmond has offered for sale but has never sold any solar lights
bearing the design claimed in the D284 Cap Design Patent.
34. Plaintiff has been damaged as a result of Defendants infringing
activities and will continue to be damaged unless such activities are enjoined by
this Court. Pursuant to 35 U.S.C. 284, Plaintiff is entitled to damages adequate to
compensate for the infringement of Plaintiffs Patent, including, inter alia,
Plaintiffs lost profits and/or a reasonable royalty. Alternatively, pursuant to 35
U.S.C. 289, Plaintiff is entitled to an award of Defendants total profits to
compensate for the infringement of Plaintiffs Patent.
35. Plaintiff will be irreparably harmed if Defendants patent infringement
continues. Plaintiff relies upon his patents for protection of his business
intellectual property and the rampant infringement of his patents by Defendant robs
Plaintiffs business of its intellectual assets and denies Plaintiff the exclusivity in




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the marketplace for offering and selling his products to which he is entitled under
the Patent Laws. This seriously damages Plaintiff in a manner that cannot be
adequately compensated by money alone. Plaintiff is entitled to a permanent
injunction prohibiting Defendant, its directors, officers, employees, agents, parents,
subsidiaries, affiliates, and anyone else in active concert or participation with them,
from taking any other actions that would infringe Plaintiffs Patents.
9. JURY DEMAND
36. Plaintiff hereby demands a trial by jury, pursuant to Fed. R. Civ. Proc.
38(b), for all issues so triable.
10. PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that the court enter judgment granting
Plaintiff the following relief:
a. Judgment that Defendant infringed the Plaintiffs Richmond
D284 Cap Design Patent in violation of 35 U.S.C. 271(a);
b. For the Richmond D284 Cap Design Patent, either an award of
damages adequate to compensate Plaintiff for the patent infringement that has
occurred pursuant to 35 U.S.C. 284, and/or a reasonable royalty, or an award of
Defendants total profits from the Defendants infringement pursuant to 35 U.S.C.




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289, whichever is greater, together with prejudgment interest and costs;
c. Awarding treble of the damages and/or reasonable royalty, and
that those damages be trebled on account of the willful nature of the infringement,
pursuant to 35 U.S.C. 284;
d. Declaring this case to be exceptional under 35 U.S.C. 285 and
awarding Plaintiff his attorneys' fees, costs and expenses related to bringing this
action, with prejudgment interest;
e. Enjoining Defendants, their directors, officers, employees,
agents, parents, subsidiaries, affiliates, and anyone else in active concert or
participation with them, from infringing the Richmond D284 Cap Design Patent;
and
f. Awarding Plaintiff such further and other relief as the Court
deems just and equitable.
Respectfully submitted,

/s/ Lawrence C. Hersh
Lawrence C. Hersh
Attorney at Law
17 Sylvan Street
Suite 102B
Rutherford, New Jersey 07070
Tel: (201) 507-6300




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Fax: (201) 507-6311
lh@hershlegal.com
Attorneys for Plaintiff
Simon Nicholas Richmond

Of Counsel
Theodore F. Shiells
Texas State Bar No. 00796087
Shiells Law Firm P.C.
1201 Main Street Suite 2470
Dallas, Texas 75202
Tel: (214) 979-7312
Fax: (214) 979-7301
tfshiells@shiellslaw.com