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FILM IN c

u .s.a. C.

WAR 0 4 ~ IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORG ATLANTA DIVISION

. Clerk

SIKES COOKERS & GRILL, INC ., a Georgia corporation, Plaintiff, v. VIDALIA OUTDOOR PRODUCTS, INC., a Georgia corporation ; CAREFREE POOLS & SPA, INC ., a Georgia corporation ; CARPETS OF DALTON, INC., a Georgia corporation; COOKOUTS, INC., a Georgia corporation ; COUNTRY FIRESIDE, a sole proprietorship ; COVINGTON HEARTH AND HOME, INC., a Georgia corporation ; CSRA FIREPLACE, LLC, a Georgia limited liability company ; CUMBERLAND HOME & HEARTH, a sole proprietorship ; ELLIS MEAT MARKET, a sole proprietorship ; DOLLAR FARM PRODUCTS CO., INC ., a Georgia corporation ; FINE'S HEARTH & PATIO, a sole proprietorship; HOWARD LUMBER AND BUILDING SUPPLY, a sole proprietorship; KASH GAS COMPANY, a sole proprietorship ; LSEM CORP. d/b/a FIREPLACES AND MORE, a Georgia corporation ; METRO BUCK STOVE, INC., a/k/a METRO HOUSE OF FIRE, a Georgia

Civil Action File No.

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1= 0- 8-c v - 075 0

JURY TRI AL DEMANDED

corporation ; SOUTHERN GRILLS OUTDOOR PRODUCTS, INC., a Georgia corporation ; STONEWORK DESIGN CENTER, INC ., a Georgia corporation ; SUNSET POOLS, INC . a/k/a SUNSET POOLS AND CONSTRUCTION, a Georgia corporation ; THE VIDALIA GRILL FACTORY, a sole proprietorship ; and VIDALIA OUTDOOR PRODUCTS, INC., a Georgia corporation,

Defendants.

COMPLAINT NOW COMES Plaintiff Sikes Cookers & Grill, Inc ., by and through its undersigned counsel and files its complaint against the above-named defendants, and for its cause of action states : PARTIES 1. Sikes Cookers & Grill, Inc . (hereinafter "Bikes") is a corporation organized under the laws of the State of Georgia with its principal place of business at 337 Commerce Loop, Vidalia, Georgia 30474 . 2. Vidalia Outdoor Products, Inc. ("Vidalia Products") is a Georgia

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Corporation with its principal place of business located in Vidalia, Georgia . Vidalia Products may be served with the summons and complaint by service upon its registered agent, Fletcher Jones, 308 Miracle Lane, Vidalia, Georgia 30474 . 3. Vidalia Products manufactures, advertises, promotes, markets, sells and offers for sale convection-based cooking grills, including the cooking grills accused of patent infringement herein to customers throughout the State of Georgia. Vidalia Products also manufactures, advertises, promotes, markets, sells and offers for sale convection-based cooking grills, including the cooking grills accused of patent infringement herein, to resellers and distributors for purposes of resale to customers located throughout Georgia . 4. Carpets of Dalton, Inc . is a Georgia corporation with its principal place of business located in Dalton, Georgia . Carpets of Dalton may be served with the summons and complaint by service upon its registered agent, Lamar Hennon, 102 Wildberry Road, Rocky Face, Georgia 30740 . 5. Carpets of Dalton advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of

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patent infringement herein, to consumers in Georgia . 6. Carefree Pools and Spas, Inc. ("Carefree") is a Georgia corporation with its principal place of business located in Evans, Georgia . Carefree may be served with the summons and complaint by service upon its registered agent, Michael Eastergard, 4300 Washington Rd ., Evans, Georgia 30809 . 7. Carefree advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein, to consumers in Georgia . 8. Cookouts, Inc. ("Cookouts") is a Georgia corporation with its principal place of business located in Savannah, Georgia. Cookouts may be served with the summons and complaint by service upon its registered agent, Thomas Davis Jr ., 714 Mall Boulevard, Savannah, Georgia 31406 . 9. Cookouts advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein , to consumers in Georgia.

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Upon information and belief, Country Fireside is a sole proprietorship with its principal place of business located in Stockbridge, Georgia . Country Fireside may be served with the summons and complaint by service upon its authorized representative at its business address of 5529 North Henry Blvd ., Stockbridge, Georgia 30281 . 11 . Country Fireside advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein, to consumers in Georgia . 12. Covington Hearth and Home, Inc . ("Covington") is a Georgia corporation with its principal place of business located in Madison, Georgia. Covington may be served with the summons and complaint by service upon its registered agent, Raleigh Jackson Frost , 1595 Access Rd., Suite C , Co vington, Georgia 30014 . 13 . Covington advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein, to consumers in Georgia .

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14.

CSRA Fireplace, LLC ("CSRA") is a Georgia limited liability company with its principal place of business located in Augusta, Georgia . CSRA may be served with the summons and complaint by service upon its registered agent, Steve Smith, 3926 Full Moon Dr., Appling , Georgi a 30802 . 15 . CSRA advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein, to consumers in Georgia . 16 . Upon information and belief, Cumberland Home and Hearth is a sole proprietorship with its principal place of business located in Kingsland, Georgia . Cumberland Home and Hearth may be served with the summons and complaint by service upon its authorized representative at its business address of 780 E . King Ave, Kingsland, Georgia 31548 . 17. Cumberland Home and Hearth advertises, promotes and resells convectionbased cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein, to consumers in Georgia .

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Upon information and belief, Elvis Meat Market is a sole proprietorship with its principal place of business located in Statesboro, Georgia . Ellis Meat Market may be served with the summons and complaint by service upon its authorized representative at its business address of 117 W . Main Street, Statesboro, Georgia 30458. 19. Ellis Meat Market advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein, to consumers in Georgia . 20 . Dollar Farm Products Co., Inc. ("Dollar Farm") is a Georgia corporation with its principal place of business located in Bainbridge, Georgia . Dollar Farm may be served with the summons and complaint by service upon its registered agent, Thomas H. Dollar II, 1041 Dothan Highway, Bainbridge, Georgia 39818 . 21 . Dollar Farm advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein, to consumers in Georgia .

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22. Upon information and belief, Fine's Hearth & Patio ("Fine's") is a sole

proprietorship with its principal place of business located in Fort Oglethorpe, Georgia. Fine's may be served with the summons and complaint by service upon its authorized representative at its business address of 2864 Lafayette Road, Fort Oglethorpe, Georgia 30742 . 23. Fine's advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein, to consumers in Georgia . 24. Upon information and belief, Howard Lumber and Building Supply ("Howard") is a sole proprietorship with its principal place of business located in Statesboro, Georgia. Howard may be served with the summons and complaint by service upon its authorized representative at its business address of 600 Gentilly Rd., Statesboro, Georgia 30459 . 25. Howard advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent

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infringement herein, to consumers in Georgia.

26. Upon information and belief, Kash Gas Company ("Kash") is a sole proprietorship having its principal place of business located in Brunswick, Georgia. Kash may be served with the summons and complaint by service upon its authorized representative at its business address of 6043 New Jesup Highway 341, Brunswick, Georgia 31523 . 27. Kash advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein, to consumers in Georgia . 28 . LSEM Corp . d/b/a Fireplaces and More ( "LSEM") is a Georg ia corporation with its principal place of business located in Jasper, Georgia . LSEM may be served with the summons and complaint by service upon its registered agent, Robert J . Whitfield, 187 Navaho Trail, Jasper, Georgia 30143 . 29. LSEM advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent

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infringement herein, to consumers in Georgia . 30.

Metro Buck Stove, Inc . a/k/a Metro House of Fire, Inc . ("Metro") is a Georgia corporation with its principal place of business located in Marietta, Georgia. Metro may be served with the summons and complaint by service upon its registered agent, G . Todd King, 535 Cobb Parkway North, Marietta, Georgia 30062 . 31 . Metro advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein, to consumers in Georgia . 32. Southern Grills Outdoor Products, Inc. ("Southern Grills") is a Georgia corporation with its principal place of business located in Marietta, Georgia. Southern Grills may be served with the summons and complaint by service upon its registered agent, Nom Higgins, 4213 Arbor Club Drive, Marietta, Georgia 30066 . 33 .

Southern Grills advertises, promotes and resells convection-based cooking

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grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein, to consumers in Georgia . 34. Stonework Design Center, Inc . ("Stonework") is a Georgia corporation with

its principal place of business located in Lilburn, Georgia and/or Greensboro, Georgia. Stonework may be served with the summons and complaint by service upon its registered agent, Joseph Keating, 1598 Rivermist Drive, Lilburn, Georgia 30047. 35 . Stonework advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein, to consumers in Georgia . 36. Sunset Pools, inc . a/k/a Sunset Pools and Construction, a Georgia Corporation, ("Sunset") is a Georgia corporation with its principal place of business located in Moultrie, Georgia . Sunset may be served with the summons and complaint by service upon its registered agent, Rick Layfield, 10 Dogwood Drive, Moultrie , Georgia 31768 .

37.

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Sunset advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein, to consumers in Georgia . 38 . Upon information and belief, The Vidalia Grill Factory is a sole proprietorship having its principal place of business located in Vidalia, Georgia . The Vidalia Grill Factory may be served with the summons and complaint by service upon its authorized representative at its business address of 308 Miracle Lane, Vidalia, Georgia 30474 . 39 . The Vidalia Grill Factory advertises, promotes and resells convection-based cooking grills manufactured by Vidalia Products, including the cooking grills accused of patent infringement herein, to consumers in Georgia. JURISDICTION AND VENUE 40. This is an action for patent infringement arising under the provisions of the Patent Laws of the United States of America, Title 35, United States Code . This court has subject matter jurisdiction over Plaintiff s claims of patent infringement pursuant to 28 U .S.C. § 1331 and 28 U.S.C. § 1338(a).

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41 . Each of the above-named defendants is subject to general personal jurisdiction by virtue of being citizens of Georgia . Venue is proper in this judicial district pursuant to 28 U .S .C. §§ 1391(b) and (c) and §1400(b). BACKGROUND 42. On March 21, 2000, the United States Patent and Trademark Office ("PTO") duly and legally issued United States Patent No . 6,03 8,964 ("the '964 patent") . A copy of the '964 patent is attached hereto as Exhibit A . On January 22, 2008, the PTO duly and legally i ssued U. S. Patent No . 7,320, 278 (the ` 27$ patent") to Plaintiff. A copy of the'278 patent is attached hereto as Exhibit B . 43 . Plaintiff Bikes Cookers & Grill, Inc. ("Bikes") is the assignee of the `964 patent, and the `278 patent, and is the owner of all rights, title and interest in the '964 patent and the `278 patent, including the right to recover for any and all past infringement of the patents thereof. 44 . Bikes manufactures and sells convection-based cooking grills made in accordance with the '964 patent and the `278 patent . Sikes Cookers previously

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employed Chris Jones to assist in the manufacture the grills . Jones manufactured at least 600 such grills . 45.

On or about 2001, Jones formed Vidalia Outdoor Products, Inc. ("Vidalia"), which manufactures, advertises, promotes, sells, and offers for sale convectionbased cooking grills in direct competition with Sikes . 46. The grills manufactured and sold by Vidalia, alone and through the abovenamed resellers and distributors, infringes at least one claim of the '964 patent and at least one claim of the `278 patent . 47. In 2004, Sikes Cookers advised Vidalia in writing that one or more grill models being manufactured and sold by Vidalia infringe at least one claim of the '964 patent. 48 . Vidalia refused to discontinue manufacturing and selling grills that infringe the '964 patent . Presently, Vidalia, alone and through the above-named resellers and distributors, continues to advertise, market, sell and offer to sell convectionbased cooking grills that infringe at least one claim of the'964 patent .

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49. Sikes' convection-based cooking grills are marked and identify the `964 and `278 patents in accordance with 35 U .S.C. § 287 . COUNT I - INFRINGEMENT OF TIC `964 PATENT 50 . Sikes incorporates by reference the allegations of paragraphs 1-49 of this Complaint as if restated in full herein . 51 .

Each of the above-named Defendants infringe one or more claims of the'964 patent (literally and/or under the doctrine of equivalents) by making, using, advertising, promoting, marketing, selling and offering for sale Vidalia's convection-based cooking grills, which infringe at least one claim of the '964 patent. 52. Sikes has been damaged as a result of the defendants' past and continuing acts of patent infringement in an amount to be determined at trial, but in no event less than a reasonable royalty . 53 . Sikes has been and continues to be irreparably injured by defendants' past

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and continuing infringement of the `964 patent, and defendants' infringing activities will continue unless enjoined by this Court pursuant to 35 U .S .C . § 283 . 54.

Defendants' infringement has been and continues to be deliberate, willful, intentional, and objectively reckless, with knowledge of the existence of the `964 patent and the competing commercial embodiments of the `964 patent, and Plaintiff accordingly is entitled to recover enhanced damages pursuant to 35 U .S .C. § 284, as well as its attorneys' fees and other expenses of litigation pursuant to 35 U. S . C . § 285. COUNT II - INFRINGEMENT OF TIC `278 PATENT 55 . Sikes incorporates by reference the allegations of paragraphs 1-54 of this Complaint as if restated in full herein . 56. Each of the above-named Defendants infringe one or more claims of the'278 patent (literally and/or under the doctrine of equivalents) by making, using advertising, promoting, marketing, selling and offering for sale convection-based cooking grills that infringe at least one claim of the '278 patent . 57.

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Sikes has been damaged as a result of the defendants' past and continuing acts of patent infringement in an amount to be determined at trial, but in no event less than a reasonable royalty . 58. Sikes has been and continues to be irreparably injured by defendants' past and continuing infringement of the '278 Patent, and defendants' infringing activities will continue unless enjoined by this Court pursuant to 35 U .S .C . § 283 . 59. Defendants' infringement has been and continues to be deliberate, willful, intentional, and objectively reckless, with knowledge of the existence of the `278 patent and the competing commercial embodiments of the `278 patent,, and Plaintiff accordingly is entitled to recover enhanced damages pursuant to 35 U .S.C. § 284, as well as its attorneys' fees and other expenses of litigation pursuant to 35 U.S.C. § 285 . PRAYER FOR RELIEF WHEREFORE, Sikes prays for trial by jury, judgment and relief after entry of final verdict, including: (1) A judgment that each of the above-named defendants has infringed at least one claim of each of the '964 patent and the `278 patent ;

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(2) A judgment, pursuant to 35 U .S.C. § 283, permanently enjoining Defendants and/or Defendants' officers, agents, servants, employees, and all others in active concert or participation with Defendants be permanently enjoined and restrained from : (a) infringing United States Patent Nos . 6,038,964 and 7,320,278 ; and (b) otherwise causing, assisting in, participating in, or contributing to the infringement of said patents; (3) An award of damages, amounting to no less than a reasonable royalty, resulting from the defendants' acts of patent infringement ; (4) An assessment of interest on the damages so computed ; (5) A trebling of such damages ; (6) A declaration that this case is exceptional pursuant to 35 U .S.C . § 285, and an award of Sikes' attorney's fees and costs incurred . (7) Such other and further relief as this Court deems just and appropriate . DEMAND FOR JURY TRIAL Sikes demands trial by jury on all claims and issues so friable .

This INay of March, 2008 . Respectfully submitted,

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A

Steven .Hill Georgia Bar No . 354658 Peter F. Schoenthaler Georgia Bar No . 629789 Eric G . Maurer

Georgia Bar No . 478199 HILL, KERTSCHER & WHARTON LLP 3350 Riverwood Parkway Suite 800

Atlanta, Georgia 30339 Telephone : (770) 953-0995 Facsimile : (770) 953-1358 Attorneys for Plaintiff Grill, Inc.

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Cookers &