IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

CHEER PACK NORTH AMERICA LLC, 

a Delaware limited liability company, 

 Plaintiff, 

Case No. ________________ 

v. Honorable ________________ 

 

KSP CO. LTD., 

a Korean company, 

d/b/a ASP, INC., 

 

 Defendant. 

COMPLAINT FOR PATENT INFRINGEMENT 

AND DEMAND FOR JURY TRIAL

NOW COMES the Plaintiff, CHEER PACK NORTH AMERICA LLC 

(“Cheer Pack”), by its attorneys HARNESS, DICKEY & PIERCE, PLC, and for 

its Complaint against KSP CO. LTD. (“KSP”) d/b/a ASP, INC. (“ASP”) 

(“Defendant”) states as follows: 

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NATURE OF THE ACTION

1. This is an action for patent infringement under 35 U.S.C. §§ 154(d), 

271, 283, 284, and 285. 

THE PARTIES

2. Cheer Pack is a Delaware limited liability company having a principal 

place of business at 1 United Drive, West Bridgewater, Massachusetts 02379. 

3. On information and belief, KSP is a Korean company having a 

principal place of business at KeumKang Penterium IT Tower #1421 Hagui-ro 282, 

DongAn-Gu, AnYang-City, KyoungGi-Do, South Korea 431-810. 

4. On information and belief, KSP conducts business in the United States 

as ASP, a division of KSP, having a place of business at 603 Parkcenter Drive, 

Suite 108, Santa Ana, California, 92705. 

JURISDICTION AND VENUE

5. This Court has subject matter jurisdiction over this matter pursuant to 

28 U.S.C. §§ 1331 and 1338(a). 

6. This Court has personal jurisdiction over Defendant because 

Defendant has transacted business in Michigan by among other things, their acts of 

manufacturing, importing, marketing, distributing, providing, licensing, offering for 

sale, and/or selling spouted pouches with a cap (“Accused Product”) in the United 

States that are used to package food and beverages sold in retail stores throughout the 

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United States, including retail stores in Michigan located in this judicial district, that 

Cheer Pack alleges infringe U.S. Patent No. 8,528,757. Defendant has in the past 

and continues to cause harm to Cheer Pack in Michigan as a result of acts they have 

and continue to commit both inside and outside of the state of Michigan. See Fed. R. 

Civ. P. 4(h), MCL 600.715(2). 

7. Venue over Defendant is proper in this judicial district under 28 

U.S.C. §§ 1391(c), 1391(d), and 1400(b). 

FACTUAL BACKGROUND

8. On April 13, 2009, U.S. Patent Application Serial No. 12/422,553 

entitled “CAP FOR CONTAINER PROVIDED WITH GUARANTEE SEAL” 

(“the ‘553 patent application”) was filed with the United States Patent and 

Trademark Office (“Patent Office”) as a continuation of International Patent 

Application no. PCT/IT2007/000426, filed on June 15, 2007. 

9. By way of assignment from the inventors, Guala Pack S.p.A. 

(“Guala”) became the owner of the ‘553 patent application. 

10. On September 10, 2009, the Patent Office published the ‘553 patent 

application as U.S. Patent Application Publication No. 2009/0223963 (“the 

published patent application”). A copy of the published patent application is 

attached to this Complaint as Exhibit 1. 

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11. KSP and its customers had notice of the published patent application 

as early as October 16, 2012. 

12. On December 21, 2012, Guala sent a letter via fax and registered mail 

to KSP’s corporate headquarters in South Korea, providing KSP with actual notice 

and a copy of the published patent application. A copy of the December 21, 2012 

letter is attached to this Complaint as Exhibit 2. 

13. Guala informed KSP that it recently became aware of KSP’s making, 

using, offering to sell in the United States, selling and/or importing in the United 

States the Accused Product, including a “Choke Free Cap.” Guala informed KSP 

that two types of the “Choke Free Cap” were covered by the pending claims of the 

‘553 patent application and included in the published patent application. 

14. Guala reached the conclusions set forth in the December 12, 2012 

letter after studying samples of the Accused Product and leaflet brochures 

distributed at KSP’s booth at the PackExpo International 2012 trade show held in 

Chicago from October 28-31, 2012. Guala provided KSP with a copy of the leaflet 

collected during the trade show and photographs of representative samples of the 

Accused Product. Guala further provided a detailed claim chart showing that 

independent claim 1 of the ‘553 patent application covered the Accused product. 

Guala further informed KSP of its right to collect damages under 35 U.S.C. § 

154(d). 

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15. On January 24, 2013, counsel for KSP (Darrell L. Pogue of Keohane 

& D’Alessandro, PLLC) responded to Guala’s December 12, 2012 letter denying 

that the KSP product(s) infringe upon Guala’s rights, either willfully or 

unintentionally. A copy of the January 24, 2013 letter is attached to this Complaint 

as Exhibit 3. 

16. On September 10, 2013, the Patent Office issued U.S. Patent No. 

8,528,757 entitled “CAP FOR CONTAINER PROVIDED WITH GUARANTEE 

SEAL” (“the ‘757 patent”). A copy of the ‘757 patent is attached to this 

Complaint as Exhibit 4. 

17. The invention as claimed in the ‘757 patent is substantially identical 

to the invention as claimed in the published patent application. By way of 

example, claim 3 of the published patent application directly corresponds to claim 

1 of the ‘757 patent. 

18. Cheer Pack is a strategic partnership established in 2008 by Guala and 

others to develop and support spouted pouch technology in North America. 

19. Cheer Pack has become a leading manufacturer of flexible packaging 

and pouch packaging products in the United States. Cheer Pack has made over one 

billion pre-made spouted pouches with caps, and is on track to make more than 700 

million pre-made spouted pouches with caps this year alone. 

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20. By way of agreement with Guala, Cheer Pack is the exclusive licensee 

and holder of all substantial rights of the ‘757 patent, including the right to seek 

and obtain all remedies available at law (including money damages) and in equity 

for any past, present, and future infringement of the ‘757 patent. 

21. Cheer Pack has and continues to give notice to the public that its 

spouted pouches with caps are patented by marking these products with the ‘757 

patent. 

22. Cheer Pack has studied samples of the Accused Product, including 

samples distributed by KSP at the PackExpo International 2014 trade show held in 

Chicago from November 2-5, 2014. Cheer Pack has independently concluded that 

the Accused Product is covered by the claims of the ‘757 patent. 

23. By letter dated December 1, 2014, Cheer Pack provided KSP with 

notice of infringement of the ‘757 patent. A copy of the December 1, 2014 letter is 

attached to this Complaint as Exhibit 5. 

COUNT I – INFRINGEMENT OF U.S. PATENT NO. 8,528,757 

24. Cheer Pack restates the allegations contained in paragraphs 1-23. 

25. On September 10, 2013, the Patent Office duly and lawfully issued 

the ‘757 patent. Exhibit 4. 

26. Defendant has in the past and is currently directly infringing the ‘757 

patent under 35 U.S.C. § 271(a) by making, using, offering for sale, selling, or 

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importing into the United States without Cheer Pack’s authority, the Accused 

Product that embodies one or more of the ‘757 patent claims.

27. By way of example and not limitation, Defendant has in the past and 

is currently making, using, offering for sale and selling the Accused Product that 

directly infringes at least claim 1 of the ‘757 patent, among other claims. See, e.g.,

Exhibit 6. Defendant was given actual notice of infringement of the ‘757 patent. 

28. Defendant has in the past infringed the provisional rights for the 

published patent application and ‘757 patent under 35 U.S.C. § 154(d) because 

Defendant makes, uses, offers for sale, or sells in, or imports into, the United States 

the invention as claimed in the published patent application. Defendant was given 

actual notice of the published patent application; and the invention as claimed in 

the ‘757 patent is substantially identical to the invention as claimed in the 

published patent application. 

29. Defendant’s infringing activities have been willful and deliberate. 

30. Defendant’s infringing activities have and continue to directly and 

proximately causing immediate and irreparable injury to Cheer Pack for which 

Cheer Pack has no adequate remedy at law. 

31. Defendant will continue its infringing activities unless enjoined from 

doing so by the Court. 

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32. Defendant’s infringing activities have and continue to directly and 

proximately cause damages to Cheer Pack. 

PRAYER FOR RELIEF

WHEREFORE, Cheer Pack prays that this Court: 

A. Enter judgment for Cheer Pack against Defendant declaring that is has 

willfully infringed U.S. Patent No. 8,528,757; 

B. Permanently enjoin and restrain Defendant, its agents, servants, 

employees, partners, attorneys, successors and assigns, and all those acting in concert 

with it, from infringing, either directly, by inducement or contribution, U.S. Patent 

No. 8,528,757; 

C. Enter an Order requiring Defendant to file with this Court and to serve 

upon Cheer Pack or Cheer Pack’s counsel, within thirty (30) days after the entry and 

service of any injunction issued, a report in writing and under oath setting forth in 

detail the manner and form in which they have complied with the injunction; 

D. Require Defendant to post an appropriate bond and Order any other 

appropriate relief to assure compliance with any injunctive provision or other 

provision Ordered by the Court; 

E. Enter an Order directing Defendant, its agents, servants, employees, 

partners, attorneys, successors and assigns, and all those acting in concert with it, to 

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deliver to this Court or to Cheer Pack for destruction, or show proof of said 

destruction, of all infringing products; 

F. Order an equitable accounting to determine the profits of and other 

sums Defendant has derived from the complained-of patent infringement and other 

wrongful acts, and that such amount be paid over to Cheer Pack as an equitable 

remedy; 

G. Award to Cheer Pack all provisional damages resulting from the 

Defendant’s patent infringement in accordance with 35 U.S.C. § 154(d); 

H. Award to Cheer Pack all damages resulting from the Defendant’s 

patent infringement and order that said damages be trebled in accordance with 35 

U.S.C. § 284; 

I. Enter judgment declaring that this case is exceptional and that Cheer 

Pack is entitled to recover its costs and reasonable attorney fees incurred in this 

action, pursuant to 35 U.S.C. § 285; and 

J. Enter judgment granting such other and further relief and damages to 

Cheer Pack as justice and equity may require. 

JURY DEMAND 

Cheer Pack North America LLC hereby requests a trial by jury of all issues 

so triable. 

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Respectfully submitted, 

DATED: December 2, 2014 By: s/David P. Utykanski 

 

 HARNESS, DICKEY & PIERCE, PLC

 David P. Utykanski (P47029) 

 5445 Corporate Drive, Suite 200 

 Troy, Michigan 48098 

 (248) 641-1400 

 (248) 641-0270 (fax) 

 Email: davidu@hdp.com 

Attorneys for Plaintiff CHEER PACK 

NORTH AMERICA LLC 

19090531.1

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