Alpha Cognetics v. Blouch - Complaint

Case 3:18-cv-00440-CWR-FKB Document 1 Filed 07/06/18 Page 1 of 23
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ALPHA COGNETICS LLC and

ALPHA COGNETICS TECH LLC PLAINTIFFS
v. Civil Action No. 3:18-cv-440-CWR-FKB
ROGER BLOUCH, SUSAN BLOUCH,

and ADVANCED HF SOLUTIONS, INC. DEFENDANTS
VERIFIED COMPLAINT
Plaintiffs Alpha Cognetics LLC and Alpha Cognetics Tech LLC (collectively, “Alpha
Cognetics”) file this Complaint for tortious interference with business relations, declaratory
judgment seeking a declaration of noninfringement, unenforceability, and/or invalidity of United
States Design Patent No. D791, 746 S, breach of fiduciary duty, violation of the Lanham Act,
defamation, conversion, trademark infringement, violation of the Mississippi Trade Secrets Act,
and violation of the Defend Trade Secrets Act of 2016 against Defendants Roger Blouch, Susan
Blouch, and Advanced HF Solutions, Inc. (collectively, “Defendants”), stating as follows:
NATURE OF THE ACTION
1. This is an action to end Defendants’ unauthorized and infringing actions of
patented inventions concerning a compact dipole antenna used in radio communications. Alpha
Cognetics, herein and by separate motion, seeks preliminary and permanent injunctive relief to
prevent Defendants from continuing to infringe its rights, tortuously interfering with Alpha’s
business relations, and other tortious conduct.
THE PARTIES
2. Alpha Cognetics LLC is a limited liability company organized and existing under
the laws of the State of Mississippi. Alpha Cognetics has two members, one of which is a
natural citizen of Mississippi and the other is an LLC, which in turn has one member who is a
natural citizen of Mississippi.
3. Alpha Cognetics Tech LLC is a wholly owned subsidiary of Alpha Cognetics
LLC.
4. Roger Blouch (“Mr. Blouch”) is a former officer of Alpha Cognetics LLC and a
natural citizen of the State of Texas who may be served with process at 13192 County Road 236,
Oakwood, Texas 75855, by certified mail, or wherever he may be found.
5. Susan Blouch (“Mrs. Blouch”) is a natural citizen of the State of Texas who may
be served with process at 13192 County Road 236, Oakwood, Texas 75855, by certified mail, or
wherever she may be found.
6. Advanced HF Solutions, Inc. (“Advanced HF Solutions”) is a corporation
organized and existing under the laws of the State of Texas with its principal place of business in
Oakwood, Texas. Advanced HF Solutions may be served with process through its registered
agent, Roger D. Blouch, at 13192 County Road 236, Oakwood, Texas 75855.
JURISDICTION AND VENUE
7. Alpha Cognetics’ claims in this case arise under the Declaratory Judgment Act,
28 U.S.C. §§ 2201, 2202, the Patent Laws of the United States, 35 U.S.C. § 100 et seq., the
Lanham Act, 15 U.S.C. § 1125, and the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1838, et
seq.
8. This Court has jurisdiction over the federal law claims under 28 U.S.C. § 1338,
which directs that District Courts shall have original jurisdiction of any civil action arising under
any Act of Congress relating to patents, copyrights, and trademarks, and under 28 U.S.C. § 1331,
2
which pertains to civil actions arising under (other) laws of the United States (e.g. the Defend
Trade Secrets Act).
9. Furthermore, the Court has diversity jurisdiction under 28 U.S.C. § 1332 because
the amount in controversy is in excess of $75,000, exclusive of interest and costs, and the suit is
between citizens of different states.
10. This Court has personal jurisdiction over Defendants pursuant to Miss. Code Ann.
§ 13-3-57. Defendants have been present in and conducted business and work in the State of
Mississippi and this District and have committed torts at least in part in the State of Mississippi
and in this District as described below. Defendants’ contacts with the State of Mississippi,
including their presence and work performed in this District, give rise to Alpha Cognetics’
claims.
11. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391 and 1400 because a
substantial part of the events giving rise to this action occurred in this District, and Defendants
have committed torts at least in part in this District.
FACTUAL BACKGROUND
12. Alpha Cognetics is engaged primarily in the development and sale of compact
dipole radio antennas, referred to as the Alpha Cognetics Antenna.
13. The Alpha Cognetics Antenna is based on an original concept by Robert T. “Ted”
Hart in 1996, who worked to create a smaller, more convenient, but equally efficient, high
frequency antenna that could be mounted on roof tops, vehicles, and smaller spaces. Hart
referred to his invention as the Poynting Vector Antenna. With assistance from Paul V. Birke,
Hart invented the antenna element, which based on its optimum physical characteristics and
function, was referred to as the “Flute.”
3
14. On October 18, 2005, the United States Patent and Trademark Office (“USPTO”)
issued Ted Hart U.S. Patent No. 6,956,535 B2 entitled, “Coaxial Inductor and Dipole EH
Antenna” (“the ‘535 Patent”). A true and correct copy of the ‘535 Patent is attached hereto as
Exhibit A.
Alpha Cognetics Acquires the Poynting Vector Antenna Intellectual Property
15. In 2011, Hart, through his company EH Antenna Systems, LLC, licensed the ‘535
Patent, related patents, and all intellectual property, including common law copyrights,
trademarks, and trade dress to Alpha Cognetics. See License Agreement, attached hereto as
Exhibit B (the “License Agreement”).
16. The License Agreement granted Alpha Cognetics the exclusive rights to design,
develop, manufacture, and sell antennas based on the ‘535 Patent.
17. Thereafter, in 2013, Hart co-authored a book entitled The Poynting Vector
Antenna, which retains a copyright. A true and correct copy of The Poynting Vector Antenna is
to be filed under seal upon order of the Court as Sealed Exhibit 1. Specifically, Chapter 19 of
the book details Hart’s Flute Poynting Vector Antenna design, its function, and assembly into an
antenna.
18. In 2014, Hart, again through EH Antenna Systems, LLC, assigned the intellectual
property related to the ‘535 Patent to Alpha Cognetics. See Assignment of Patent, attached
hereto as Exhibit C (the “Patent Assignment”).
19. Prior to the Patent Assignment, but after the License Agreement, Alpha
Cognetics reduced Hart’s antenna element design to drawings referenced as AC-A1-4010, AC-
A1-4011, AC-A1-4012, and AC-A1-4013. The drawings are dated in 2012, are titled to Alpha
Cognetics, LLC, and both the faces of the document and the creation date metadata of the
4
electronic files show that they were created June 18, 2012. These drawings are to be filed under
seal upon order of the Court as Sealed Exhibit 2, and are referred to herein as the “Alpha
Cognetics Drawings.”
20. Ted Hart and Barrie McArthur, Alpha Cognetics’ CEO, co-wrote an article titled
“A New HF Antenna Concept” that appeared in the February 2013 issue of MissionCritical
Communications magazine. The article plainly displayed the Alpha Cognetics Antenna with the
flute antenna element. The issue’s cover page and the article’s first page are attached hereto as
Exhibit D.
21. Pursuant to the License Agreement and Patent Assignment, Alpha Cognetics
manufactured, marketed, and sold antenna assemblies covered by the ‘535 Patent called the
Alpha Cognetics Antenna.
Roger Blouch Becomes an Officer of Alpha Cognetics
22. In 2012, Ted Hart and Barrie McArthur, Alpha Cognetics’ CEO, traveled to
Mineral Wells, Texas, to test the antenna at Antenna Products’ antenna lab, also called an
antenna farm.
23. Ira Wiesenfeld was a tester for Antenna Products, and became interested in the
antenna. Mr. Hart, Mr. McArthur, and Mr. Wiesenfeld later took the antenna to Mr. Wiesenfeld’s
home in the Dallas area. It was here that Mr. Blouch first came in contact with the antenna.
24. Mr. Blouch became interested in the antenna. Mr. and Mrs. Blouch travelled to
McArthur’s home in Canton, Mississippi, to discuss the Blouches’ additional involvement with
Alpha Cognetics. Mr. McArthur agreed to make Mr. Blouch Alpha Cognetics’ Chief
Technological Officer / Vice President of Engineering.
5
25. Upon information and belief, Mrs. Blouch was a bookkeeper and administrative
agent alongside Mr. Blouch.
26. Through their employment, the Blouches were very familiar with the Alpha
Cognetics Antenna, and at one time, they were in possession of 20 assembled antennas owned by
Alpha Cognetics. The Blouches were in possession of the antennas and other Alpha Cognetics’
property for purposes of testing and recording data at their home and antenna farm in Oakwood,
Texas.
27. Mr. and Mrs. Blouch travelled to Mississippi on Alpha Cognetics business
multiple times. On one of these trips, Mr. Blouch installed the first Alpha Cognetics Antenna at
the Mississippi State Hospital at Whitfield. A redacted copy of the payment check and a photo of
Mr. Blouch installing the Alpha Cognetics Antenna on the roof of the State Hospital at Whitfield
is attached hereto as Exhibit E.
28. Mrs. Blouch accompanied Mr. Blouch on this trip.1 Mr. Blouch travelled to
Mississippi upwards of 6-10 times on Alpha Cognetics business. When Mr. McArthur would be
flying from Jackson to another location on Alpha Cognetics business, Blouch would drive to
Mississippi from Texas, then fly out together with McArthur.
Mr. Blouch’s Actions Force His Termination
29. One of these trips was to Icom in Seattle for a meeting to market the Alpha
Cognetics Antenna. At this meeting, Mr. Blouch became belligerent to the point that Mr.
McArthur was forced to stop the meeting and remove Mr. Blouch. Mr. McArthur later tried to
formally supervise Mr. Blouch’s conduct by way of a written agreement, but Mr. Blouch refused
1
Interestingly, Mr. Blouch demanded that he be paid through his wife, with all payments be directed to “Susan
Blouch dba.” Mr. McArthur complied. Over four years, Alpha Cognetics paid Susan Blouch upwards of $100,000
for Roger’s work as CTO/VP-Engineering. The Blouches’ intent behind this arrangement is unknown, but will be
the subject of discovery in this action as it appears at least in part to have been a setup for Susan’s participation in
the ‘746 design application.
6
to sign. At this point, recognizing the liability posed to the company, Mr. McArthur terminated
Mr. Blouch’s employment.
30. On August 23, 2016, Mr. McArthur demanded that Mr. Blouch return all Alpha
Cognetics property to Mr. McArthur, including the drawings.
31. After terminating Mr. Blouch, Alpha Cognetics worked extensively to refine the
Alpha Cognetics Antenna design, increasing its utility, and actively marketing it for sale and
distribution through potential customer meetings and demonstrations. Upon information and
belief, the Blouches were aware of these activities.
Alpha Cognetics Demands Return of All Property
32. Also following Mr. Blouch’s termination, on September 9, 2016, Alpha Cognetics
sent a letter demanding that the Blouches return all of Alpha Cognetics’ property, including parts
of the Alpha Cognetics Antenna and the AC-A-4010 drawing. A copy of the Demand Letter
from Counsel for Alpha dated September 9, 2016 is attached hereto as Exhibit F.
33. Not only did the Blouches refuse to pick up certified mail at their post office box,
they also refused to accept personal delivery of the Demand Letter by a private process server.
See Affidavit of Non-Service, attached hereto as Exhibit G.
34. When Mr. Blouch finally responded to email communications with counsel for
Alpha Cognetics, he represented that he had no antennas, parts, or other Alpha Cognetics
property. See October 4, 2016 Email from Roger Blouch, attached hereto as Exhibit H, (“we did
return everything”).
The Blouches Procure a Design Patent by Committing Fraud upon the USPTO
35. While Alpha Cognetics was demanding the return of its property, the Blouches
were surreptitiously in the process of creating a separate entity to compete with Alpha Cognetics.
7
The Blouches were also in the process of filing a design patent application for the flute antenna
element.
36. On August 15, 2016, Advanced HF Solutions was created as a domestic for-profit
corporation in the State of Texas. Listed as both directors and owners are Roger Blouch and
Susan Blouch. The mailing address of Advanced HF Solutions is the same as the Blouches’
Oakwood, Texas residence.
37. A month later, on September 21, 2016, the Blouches filed an application for a
Design Patent for an “Antenna Flute” and falsely represented to the United Stated Patent and
Trademark Office (“USPTO”) that they were the inventors of the “Antenna Flute.”
38. The Blouches included Alpha Cognetics’ confidential and copyrighted flute
antenna element drawings in their application, specifically, mirror images of the illustrations
found the Alpha Cognetics Drawings, despite the fact that Alpha Cognetics previously demanded
return of this information, which the Blouches indicated they had returned.
39. On July 11, 2017, the USPTO issued U.S. Design Patent No. D791,746 S entitled
“Antenna Flute” to the Blouches (“the ‘746 Patent”). A copy of the ‘746 Patent is attached hereto
as Exhibit I.
40. In their application for the ‘746 Patent, the Blouches deliberately misrepresented
to the USPTO that they were the inventors of the “Antenna Flute” shown in Figure 1 below.
Figure 1: Illustration from the ‘746 Patent
8
41. The Blouches failed to disclose to the USPTO that there is no ornamental design
aspect of the flute antenna element. The appearance of the antenna element is a byproduct of the
function. As stated below, this is grounds for invalidation of the ‘746 Patent as it is not a
candidate for an ornamental design patent under 35 U.S.C. § 171.
42. The Blouches willfully ignored the fact that Hart previously invented the Flute
Antenna, and that Alpha Cognetics previously copyrighted drawings of the Flute Antenna.
Furthermore, the Blouches intentionally concealed from the USPTO the existence of both the
Ted Hart book and the MissionCritical Communications magazine article, both of which were
published.
43. The only difference in the Blouch “Antenna Flute” Design and the Alpha
Cognetics Drawings is the orientation of the depicted image. They are literally mirror images.
Notably, of course, the Alpha Cognetics Drawings were created four years before the Blouches
filed their application.
44. Based on the fact that the ‘746 Patent application contains mirror images of the
Alpha Cognetics drawings and was filed contemporaneously with Mr. Blouch’s termination from
Alpha Cognetics, it is now clear that Mr. Blouch falsely represented that he had returned all of
Alpha Cognetics property. Alpha Cognetics rightfully relied on this false material representation.
As stated below, Alpha Cognetics has been harmed as a result.
45. In late May 2018, Mr. McArthur received a “Cease and Desist Letter” from
attorney Steven Shaver with the Fishman Jackson Ronquillo firm in Dallas. See Shaver Cease
and Desist, attached hereto as Exhibit J. The letter alleged that Alpha Cognetics was infringing
on the ‘746 Patent, demanded that Alpha Cognetics cease and desist its marketing and sale of the
Alpha Cognetics Antenna, and represented that Mr. Shaver and the Blouches would “advise”
9
unspecified “government, radio industry, and financial industry” personnel of the patent. Id.
46. In response, Alpha Cognetics sent a letter to Attorney Shaver clarifying that the
Blouches did not invent the flute antenna element design and notified him that, therefore, the
Blouches had committed fraud upon the Patent and Trademark Office by falsely representing
that they were the inventors. See Response to Cease and Desist Letter, attached hereto as Exhibit
K. The letter also demanded that the Blouches cease and desist any interference with Alpha
Cognetics’ dealings with Codan Radio Communications (“Codan”). Id.
Mr. Blouch and Advanced HF Solutions Commence Tortious Interference
47. Mr. Blouch, acting on behalf of Advanced HF Solutions, tortiously interfered with
Alpha Cognetics’ business relations on at least one known and significant occasion, which is the
crux of this action and the need for injunctive relief.
48. On June 20, 2018, Mr. Blouch contacted Codan with whom Alpha Cognetics had
at the time engaged in lengthy discussions regarding potential sales. As one of the leading radio
communications equipment manufacturers and dealers, Codan was a preeminent business
prospect for the Alpha Cognetics Antenna. Alpha Cognetics arranged a demonstration of the
Alpha Cognetics Antenna with Codan’s representatives to discuss Codan carrying the Alpha
Cognetics antenna in its catalog.
49. A few days prior to the arranged demonstration, Mr. Blouch sent at least one
email from an Advanced HF Solutions email address to Codan misrepresenting that the ‘746
Patent is valid and enforceable. See Email from Roger Blouch dated June 20, 2018, attached
hereto as Exhibit L.
50. Advanced HF Solutions, acting through Mr. Blouch, misrepresented to Codan that
Alpha Cognetics had been “representing, exhibiting and offering for sale [the ‘746 Patented]
10
design.” Id. Mr. Blouch stated that Alpha Cognetics “misinformed” Codan about its design and
requested Codan “cease any involvement” with Alpha Cognetics regarding the Blouches’
claimed patented design of the Flute Antenna. Id.
51. Further, Mr. Blouch made false and defamatory statements concerning the Alpha
Cognetics Antenna, claiming that its design is “inferior in operation, fabrication, quality, and
have had electrical/mechanical concerns.” Id.
52. In an effort to undermine Alpha Cognetics’ business relationship with Codan, Mr.
Blouch then offered to sell Codan the Advanced HF Solutions Flute Antenna instead. Id.
53. Upon receipt of the malicious email from Mr. Blouch, Codan canceled the
demonstration and postponed all dealings with Alpha Cognetics indefinitely.
54. As a result of Defendants’ actions, Alpha Cognetics’ business relationships have
been damaged in an amount to be determined at trial, but in any event not less than lost revenue
of $399,000.00.
COUNT I:
TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS
55. Alpha Cognetics realleges and incorporates by reference the allegations of the
preceding paragraphs.
56. The above-described actions, words, and conduct of Defendants constituted
tortious interference with the business relationship between Alpha Cognetics and Codan.
57. Defendants were aware of Alpha Cognetics’ business relationship with Codan.
58. Defendants knew, or should have known, that their improper actions, words, and
conduct would cause or contribute to injury and damage to Alpha Cognetics’ business
relationship with Codan. Their improper actions, words, and conduct therefore constituted
11
intentional interference with Alpha Cognetics’ agreement and business relationship with Codan
under Mississippi law.
59. Defendants’ actions were willful.
60. Defendants knew or should have known that their conduct was without right or
justifiable cause as their actions were based on the ‘746 Patent which was procured through
fraud on the USPTO as described below.
61. As a result of Defendants’ tortious actions and conduct, the business relationship
between Alpha Cognetics and Codan was postponed indefinitely, proximately causing or
contributing to actual, compensatory, and consequential damages to Alpha Cognetics in an
amount to be determined at trial, but not less than $399,000, for which Defendants are jointly
and severally liable to Alpha Cognetics.
COUNT II:
DECLARATION OF UNENFORCEABILITY OF THE ‘746 PATENT
63. An actual and justiciable controversy exists between the parties concerning the
‘746 Patent, which requires a declaration of rights by this Court.
64. The ‘746 Patent is unenforceable due to the inequitable conduct of the Blouches
during the application process with the USPTO.
65. A patent applicant owes a duty of candor to the USPTO to disclose all
information material to the patentability of its pending claims. 37 C.F.R. § 1.56; MPEP 2001.01
et seq. The duty of candor continues until the patent issues.
12
66. Information is material to patentability when it establishes, by itself or in
combination with other information, a prima facie case of unpatentability of a claim. 37 C.F.R. §
1.56; MPEP 2001.05 et seq.
67. Material information under 37 C.F.R. § 1.56 includes, for example, information
on possible prior public uses and prior invention by another. MPEP 2001.04 et seq. “Materiality
is not limited to prior art but embraces any information that a reasonable examiner would be
substantially likely to consider important in deciding whether to allow an application to issue as
a patent.” Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, S.A., 326 F.3d 1226, 1234 (Fed.
Cir. 2003) (emphasis in original).
68. The Blouches knowingly failed to disclose material information to the USPTO
with intent to deceive the USPTO.
69. The Blouches knowingly withheld material information from the USPTO, in this
case, material information relating to the actual inventor, Ted Hart, and prior-art, including, for
example, the 2012 Alpha Cognetics Drawings, Ted Hart’s 2013 book, and the 2013
MissionCritical Communications Magazine.
70. The Blouches also failed to disclose to the USPTO that the appearance of the flute
antenna element is a byproduct of its function and thus lacks ornamentality.
71. The Blouches’ failure to disclose material information they were aware of about
the flute antenna element meets the threshold level of materiality and intent to mislead.
72. The information the Blouches failed to disclose was material to their application
for the ‘746 Patent.
73. As a result of this conduct, the ‘746 Patent is unenforceable.
13
74. Alpha Cognetics requests a declaratory judgment that the ‘746 Patent is
unenforceable based on the Blouches’ inequitable conduct.
COUNT III:
DECLARATION OF NON-INFRINGEMENT OF THE ‘746 PATENT
77. The Alpha Cognetics Antenna does not infringe any claim of the ‘746 Patent
because each and every claim therein is invalid or unenforceable.
78. Alpha Cognetics is entitled to a declaratory judgment in its favor that the
commercial manufacture, use, offer for sale, or sale of the Alpha Cognetics Antenna has not
infringed and cannot infringe the ‘746 Patent.
COUNT IV:
DECLARATION OF INVALIDITY OF THE ‘746 PATENT
81. The’746 Patent is invalid for failure to meet the patentability requirements under
35 U.S.C. § 101, et. seq.
82. Among other things, there was no unique or distinctive shape or appearance to the
‘746 Patent not dictated by the function that it performs, and the ‘746 Patent design of the Flute
Antenna lacks ornamentality and novelty and is not proper subject matter. See 35 U.S.C. § 171.
14
83. Alpha is entitled to a declaratory judgment that the ‘746 Patent is invalid.
COUNT V: DEFAMATION
85. Mr. Blouch, acting on behalf of Advanced HF Solutions, falsely represented to
Codan that they were the rightful owners of the Flute Antenna patent. See Exhibit L. The clear
implication of Mr. Blouch’s statement to Codan was that the flute element was patentable by the
Blouches and that Alpha Cognetics was not the rightful owner of the intellectual property of the
flute antenna element.
86. Mr. Blouch also falsely represented to Codan that Alpha Cognetics’ products
were “inferior in operation, fabrication, quality, and have had electrical/mechanical concerns.”
See Exhibit L.
87. These false representations were defamatory and harmed Alpha Cognetics’
reputation with Codan such that Codan indefinitely postponed its business relationship with
Alpha Cognetics.
88. Mr. Blouch knew or should have known that these false and defamatory
statements would harm Alpha Cognetics’ business relationship with Codan.
89. The false and defamatory representations to Codan were not protected by any
privilege.
90. Mr. Blouch knew at the time of the false and defamatory representations to Codan
that the representations were false, as the Blouches had extreme familiarity with Alpha
Cognetics’ ownership of the flute antenna element intellectual property as well as the true
inventorship of the Alpha Cognetics Antenna and its flute antenna element.
15
91. Additionally, and/or in the alternative, Mr. Blouch’s conduct amounts at least to
negligence in making the referenced false and defamatory representations to Codan.
92. Mr. Blouch’s false and defamatory representations to Codan proximately caused
or contributed to Codan’s decision to postpone its agreement with Alpha Cognetics. As a result
of the loss of its contract with Codan, Alpha Cognetics has suffered actual, compensatory,
consequential, and other damages (including storage costs) in an amount to be proven at trial, but
not less than $399,000.
93. Mr. Blouch made the false and defamatory statements in the course and scope of
his employment, membership, affiliation, and/or agency relationships with Advanced HF
Solutions, and his defamation of Alpha Cognetics was authorized and/or ratified by Advanced
HF Solutions.
94. Accordingly, Advanced HF Solutions and Mr. Blouch are jointly and severally
liable to Alpha Cognetics for all actual, compensatory, and consequential damages arising from
such defamation of Alpha Cognetics.
COUNT VI: BREACH OF FIDUCIARY DUTY
96. Prior to his termination, Mr. Blouch was an officer of Alpha Cognetics in his role
as Chief Technology Officer and Vice President. As such, Mr. Blouch owed a fiduciary duty to
Alpha Cognetics.
97. Mr. Blouch did not act with the utmost good faith and loyalty to Alpha Cognetics,
which he was required to do as Alpha Cognetics’ fiduciary. By stealing Alpha Cognetics
Drawings, claiming the design of the flute antenna element, applying for the ‘746 Patent
16
representing that he and Mrs. Blouch were the invetors, and in other acts that will be discovered
in this litigation, Mr. Blouch breached his fiduciary duty owed to Alpha Cognetics.
98. Alpha Cognetics has suffered damages as a result of Mr. Blouch’s actions
described herein.
COUNT VII: CONVERSION
100. Defendants are in wrongful possession of and have exerted dominion over Alpha
Cognetics’ intellectual property, specifically, the Alpha Cognetics Drawings.
101. Defendants have converted the Alpha Cognetics Drawings for their own use in
exclusion of and inconsistent with Alpha Cognetics’ rights to same.
102. Defendants’ actions have caused damaged to Alpha Cognetics, and Defendants
are liable to Alpha Cognetics for their conversion.
COUNT VIII: FRAUD
104. The Blouches made a false representation to the USPTO that they invented the
flute antenna element.
105. These representations were material in that it was the basis for the entire ‘746
Patent application and approval.
106. Additionally, the Blouches made a false representation to Alpha Cognetics that
they returned all of Alpha Cognetics’ property, when in fact, they were still in possession of the
Alpha Cognetics Drawings (and perhaps other Alpha Cognetics property).
17
107. At the time of these representations, the Blouches were both aware of the true
ownership of the Alpha Cognetics Drawings and the actual inventor of the flute antenna element
and that Alpha Cognetics had the exclusive rights to the intellectual property therein. Thus, they
had knowledge of the falsity of their statements at the time they were made.
108. The Blouches intended that the USPTO would rely upon the false representation
in evaluating the patent application and in ultimately approving the ‘746 Patent.
109. The Blouches also intended that Alpha Cognetics would rely upon the false
representation in response to the demand for return of Alpha Cognetics’ property and Alpha
Cognetics Drawings.
110. The USPTO was not aware of the true Inventorship of the flute antenna element,
and Alpha Cognetics was not aware that the Blouches had refused to return the Alpha Cognetics
Drawings.
111. The USPTO and Alpha Cognetics both rightfully relied on the Blouches’ material
false representations.
112. Alpha Cognetics has been damaged as a proximal result of the fraud.
COUNT IX: VIOLATION OF THE LANHAM ACT – 15 U.S.C. § 1125
114. Defendants made false and misleading statements about the Alpha Cognetics
Antenna to Codan and are believed to have made similar statement on the Department of
Homeland Security’s Shared Resources “SHARES” HF radio network.
115. Such actions either deceived or had the capacity to deceive a substantial segment
of potential customers.
18
116. Such deception is material and likely to influence the consumer’s purchasing
decision.
117. Upon information and belief, Defendants’ antenna is in interstate commerce, as
Mr. Blouch offered to sell Codan an antenna similar to that of Alpha Cognetics. It is not known
at this time whether such antenna infringes on the ‘535 Patent.
118. Alpha Cognetics has suffered damages as a result of Defendants’ false statements
of fact about the Alpha Cognetics Antenna and the Defendants’ infringing antenna.
COUNT X: COMMON LAW TRADEMARK INFRINGEMENT
120. The term “flute antenna” and derivates thereof such as “flute antenna element” or
“fluted antenna” is a common law trademark acquired by Ted Hart and later licensed and
assigned to Alpha Cognetics as stated above.
121. Defendants’ use of the term “flute antenna element” in the ‘746 Patent and “Flute
Antenna” in the June 20, 2018 email to Codan is without Alpha Cognetics’ consent and is likely
to confuse or deceive the public into believing that Defendants are associated with Alpha
Cognetics in some fashion when, in fact, they are not.
122. Defendants continue to use by reference the mark “flute antenna element” and
“Flute Antenna” while knowing that such use is likely to cause actual confusion among
consumers.
123. Defendants’ use in commerce of the Alpha Cognetics Antenna marks and design
without Alpha Cognetics’ consent is likely to confuse or deceive the public into believing,
contrary to fact, that the unauthorized activities of Defendants are licensed, franchised,
sponsored, authorized, or otherwise approved by Alpha Cognetics.
19
124. Such continued use of the Alpha Cognetics Antenna design infringes Alpha
Cognetics’ exclusive rights in the Alpha Cognetics Antenna in violation of Mississippi law.
125. As a result of Defendants’ actions, Alpha Cognetics has suffered and is
continuing to suffer irreparable injury, and has incurred and is continuing to incur monetary
damage in an amount yet to be determined.
126. Defendants’ misconduct is willful within the meaning of Miss. Code Ann. § 75-
25-23.
COUNT XI: CIVIL CONSPIRACY
128. Mr. Blouch, Mrs. Blouch, and Advanced HF Solutions entered into an agreement
to accomplish the unlawful purpose of obtaining the ‘746 Patent through fraud upon the USPTO
and to accomplish the unlawful purpose of maliciously interfering with Alpha Cognetics’
business relations and other torts alleged herein.
129. Defendants’ conspiracy caused Alpha Cognetics to suffer damages.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray for the following relief:
A. INJUNCTIVE RELIEF
That Defendants and all of their subsidiaries, affiliates, officers, agents, servants,
employees, attorneys, and their heirs, successors, and assigns, and all persons acting in concert or
participation with it and each of them, be immediately enjoined and restrained, preliminarily and
permanently, without bond, from (i) manufacturing, marketing, distributing, selling, or offering
for sale antennas manufactured according to the ‘535 Patent and/or the Alpha Cognetics
Drawings and (ii) from making any false statements or representations regarding the
20
Inventorship of the flute antenna element, the Alpha Cognetics Antenna, or any component
thereof; and further that Defendants be required to immediately deliver to Alpha Cognetics for
destruction all intellectual or physical or electronic property of Alpha Cognetics.
B. DECLARATORY RELIEF
That the Court declare that the ‘746 Patent is unenforceable based on the Blouches’
inequitable conduct; that the commercial manufacture, use, offer for sale, or sale of the Alpha
Cognetics Antenna has not infringed any valid or enforceable claim of the ‘746 Patent; and that
the ‘746 Patent is invalid.
C. DAMAGES
That judgment be entered against Defendants in favor of Plaintiffs for:
(1) All damages suffered by Alpha Cognetics as a result of the conduct of Defendants
complained of herein;
(2) An accounting for all revenue and profits obtained by Defendants as a result of
the conduct complained of herein;
(3) Treble damages where allowed by applicable law;
(4) Attorneys’ fees and costs recoverable under law;
(5) Punitive damages in order to punish Defendants’ willful and malicious conduct
and to deter others from committing similar acts; and
(6) Prejudgment and post-judgment interest.
D. JURY TRIAL
Plaintiff demands trial by jury.
E. OTHER RELIEF
Such other, further, or different relief as this Court may deem just and proper.
21
Dated, this the 6th day of July, 2018.
By: s/ John H. Dollarhide_________

John H. Dollarhide (MS Bar # 103655)
BUTLER SNOW LLP
Suite 1400
1020 Highland Colony Parkway
Ridgeland, MS 39157
T: (601) 948-5711
F: (601) 985-4500
Email: john.dollarhide@butlersnow.com
Kathryn K. Van Namen (MS Bar # 104079)

BUTLER SNOW LLP
6075 Poplar Avenue, 5th Floor
Memphis, TN 38119
T: (901) 680-7200
F: (901) 680-7201
Email: kate.vannamen@butlersnow.com
Counsel for Alpha Cognetics LLC and Alpha

Cognetics Tech LLC
22
Case 3:18-cv-00440-CWR-FKB Document 1-1 Filed 07/06/18 Page 1 of 9
exhibit "a"
exhibit "b"
exhibit "c"
exhibit "d"
exhibit "e" Case 3:18-cv-00440-CWR-FKB Document 1-5 Filed 07/06/18 Page 1 of 1
exhibit "f"
exhibit "g"
From: Dr. Roger Blouch <DrRoger@DrRoger.net>

Sent: Tuesday, October 04, 2016 9:21 AM
To: John Dollarhide; DrRoger@DrRoger.net
Cc: 'Barrie McArthur'; Matt Thornton; Matthew Smith; 'Mike Guest'; 'Oscar de leon'; Suzanne Cockroft; Wesley Roberts;
'BRIAN HILL'; 'willie.bolick'; 'Jonathan Brassard'; 'Wendy'; 'John Roth'
Subject: Very Simply, still don't have 5 antennas out here.
Attachments: McArthur Notification.pdf
Barrie McArthur
220 Strong Road
Canton, MS 39046
cc:
Butler Snow LLP
Suite 1400
1020 Highland Colony Parkway
Ridgeland, MS 39157
October 4th, 2016
Still don’t have 5 antennas, or 4, or 3, or 2, or 1, or any parts. We have 0 (zero) here. As we

discussed in the call, they were all disassembled to remove non-Barrie McArthur parts, then
returned to 220 Strong Road Canton, Mississippi. The parts that were not Barrie McArthur’s were
returned to the manufacturers that lent them to me. None had been paid for. This included the
“Palstar” unit you asked about. As I suggested, please check all the UPS tickets, ya’ll have all that
documentation to prove what I am saying. In reviewing all the UPS tracking paperwork, ticket
number 80 was on the UPS disabled truck from the 19th/20 th shipments and they lost the ticket,
UPS figured out where the package came from and we stuck another ticket (81) on it after they
returned it to us. However; it is just one package of a couple of dome cover parts, not our mistake
and not five (5) antennas (or parts for such) you think we have here. Please have Barrie or Wendy
dispute shipping charges on UPS tracking ticket (80) if it does show up on the bill
If you check the inventory list you mentioned….we did return everything. No assembled or
disassembled antennas or parts here or anywhere in Texas we know of. Hope that statement is
definitive enough for you. It is such a shame that you do not believe Susan and me.
Yes, we received the letter regarding the law suit about the City of West Point, Mississippi /
Prescott and are forwarding that on to our attorney as well. I spoke to Mayor Robinson @ the City
of West Point and he stated we could disregard your letter and did not have to show up. FYI, the
only address the USPS will deliver mail to here is the PO Box 99. A local resident received the
envelope and delivered it as they recognized our name.
Our attorney will discuss all this and our other concerns with you. Forwarded Friday’s (09-30) COB
e-mail from you to him & previously he did receive your other e-mail with our reply. He is
traveling this week so it might be next week before he gets back to you.
Susan and Roger Blouch

1 exhibit "h"
PO Box 99
Oakwood, Texas 75855
DrRoger@DrRoger.net
903-545-2222
This email contains privileged and /or confidential and /or unclassified For Official Use Only information that is intended solely for the
informational and non-disclosure use of the addressee. If you are not the intended recipient or entity, you are strictly prohibited from disclosing,
copying, distributing, or using any of the information contained in the transmission. If you received this communication in error, please contact the
sender immediately and destroy the material in its entirety, whether electronic or hard copy. This communication may contain nonpublic
information and/or technical declarations and/or drawings, etc. You agree to not directly or indirectly reuse or disclose such information for any
purpose other than to provide the services for which you are receiving the information or as general non-specific informational background
information . Dr. Blouch does not control the method of transmittal or service providers. They are providing duty and obligation for the security,
receipt, or protection from third party interception of this transmission. All e-mail contents, attachments, drawings, documents, pictures, and/or
files enclosed and /or disclosed are copyrighted 2016 by Dr. Blouch.
From: John Dollarhide [mailto:John.Dollarhide@butlersnow.com]

Sent: Friday, September 30, 2016 3:13 PM
To: drroger@drroger.net
Subject: Alpha Cognetics - demand for return of all personal property [IWOV-ButlerSnow.FID6489646]
Dr. Blouch,
Please allow this email to serve as Alpha Cognetics’ demand upon you and your wife and any business either or both of
you own or operate (“you”) for the relinquishment and return of all inventory, parts, and/or equipment belonging to
Alpha Cognetics that you have in your possession, in your custody, or under your control. Alpha Cognetics demands such
relinquishment and return on or before October 7, 2016. We have someone in your area that can pick up all the
materials or that can meet you at a public location to consummate the exchange.
During our previous call, you asked me if Mr. McArthur was claiming there were 12 assembled antennas on your
property. I replied that we counted five that have not been returned. Then, in your email to me of September 23, 2016,
you very specifically said that you did not have “5” antennas. You said that twice. You didn’t say that you don’t have any
antennas. That caused us concern, especially considering your May 2016 document titled “Alpha Cognetics Antenna
Inventory” that you prepared on “Laptop 2” as well as multiple witnesses who will testify that they have seen multiple
assembled antennas on your property. These facts, when compared to your September 23, 2016 email to me, lead us to
believe that you are not being forthcoming. Therefore, to remove any ambiguity in our request, we are demanding the
relinquishment and return of ALL assembled antennas, component parts, and any other property of Alpha Cognetics that
you have in your possession, custody, or control. With respect to the materials purchased with advancement checks you
requested, received, and negotiated, Alpha Cognetics demands return of those materials or repayment of those funds.
I also stated during our call that I believe your physical address to be 13192 County Road 236, Oakwood, Texas 75855.
You would neither confirm nor deny that the address was accurate. Please give me your correct physical address.
Finally, let me strongly encourage you to seek the advice and counsel of an attorney. If the materials are not returned by
October 7, 2016, we will proceed with legal action in federal court and will seek all available damages and penalties for
2
all causes of action including, but not limited to, conversion, breach of oral contract, misrepresentation, patent
infringement, and misappropriation of trade secrets. We will also demand recoupment from you of our attorneys’ fees
and other litigation costs and expenses where available under the law.
I look forward to hearing from you or your attorney before October 7, 2016, in order to arrange the return of the
materials.
Please reply to this email to confirm your receipt. If you do not reply by Monday, October 3, 2016, we will assume that
you have received the email and are refusing to return the materials, and we will proceed accordingly.
Very truly,
John H. Dollarhide
Butler Snow LLP
D: (601) 985-4593 | F: (601) 985-4500
1020 Highland Colony Parkway, Suite 1400, Ridgeland, MS 39157
P.O. Box 6010, Ridgeland, MS 39158-6010
John.Dollarhide@butlersnow.com| vCard | Bio
Twitter | LinkedIn | Facebook | YouTube
CONFIDENTIALITY NOTE: This e-mail and any attachments may be confidential and protected by legal privilege. If you
are not the intended recipient, be aware that any disclosure, copying, distribution or use of the e-mail or any attachment is
prohibited. If you have received this e-mail in error, please notify us immediately by replying to the sender and deleting
this copy and the reply from your system. Thank you for your cooperation.
……………………………………………………………………………………….
Very simply, we don’t have 5 antennas out here, Barrie and others have provided false, inaccurate
and misleading info as we discussed. Your threating to send somebody out here because you are
using an incorrect mailing address to send us information is harassment and to indicate you would
need to send a Marshall out here with a search warrant is troublesome and inflammatory, in our
minds.
I briefed Susan (Mrs. Blouch) on your call and she feels as I do. Barrie needs to follow thru on his
previous e-mail and call Susan and apologize for lying to her and I and make this right.
No, we did not record the phone call, why were you so focused on that? I called to discuss the
peaceful resolution of all the issues, including the stock issuance and let you know Barrie has not
called as he promised. Instead, ended up constantly correcting your inaccurate statements and
defending our good name, character, and honor. We were not the ones that have been repeatedly
providing false, inaccurate, and misleading information in company information being
disseminated, hence our letter to Barrie attached above. Again, we do not have 5 antennas out
here. If ya’ll want to have a civil, non-accusatory conversation, that is fine. Please don’t continue
to accuse Susan and I of things that are not true and threaten us with legal actions based on those
false accusations.
3
As we discussed, our mailing address is PO Box 99
Oakwood, Texas 75855 and our phone number is 903-545-2222. My e-mail is obviously
DrRoger@DrRoger.net
…………………………………………………….
From: Barry McArthur [mailto:bmcarthur@alphacognetics.com]

Sent: Wednesday, July 20, 2016 7:36 PM
To: Dr. Roger Blouch <DrRoger@DrRoger.net>
Cc: Oscar de leon <oscar@cytecsys.com>; Mike Guest <mguest@ss-machine.com>
Subject: Re: See Attached
Roger, I'm sorry that you and Susan have come to this decision.
After seeking legal counsel, I will be in touch with you in the next few days to determine an equitable manner in
which to conclude this relationship....Barrie
Sent from my iPhone

……………………………………………………………………
4
exhibit "i"
exhibit "j"
June 20, 2018
VIA ELECTRONIC AND U.S. MAIL
Steven R. Shaver, Esq.

FISHMAN JACKSON RONQUILLO
Three Galleria Tower
13155 Noel Road, Suite 700
Dallas, Texas 75240
sshaver@fjrpllc.com
Re: Roger and Susan Blouch / Alpha Cognetics LLC
Dear Mr. Shaver:
This firm represents Alpha Cognetics LLC with respect to protection of its intellectual
property. I am in receipt of your letter to dated May 21, 2018, regarding design patent number
D791,746 S. Unfortunately, your letter raises a host of grievous problems. Your client’s recent
actions regarding Codan Radio Communications are worse.
First, Mr. and Mrs. Blouch are not the inventors or designers of the flute antenna. Ted
Hart invented the flute antenna in 2012 and published a book containing the design (and, more
importantly, its function and assembly into a functioning antenna). The design was copyrighted
by Hart. Hart licensed and later assigned his patents to Alpha Cognetics. The drawings you
reference in your letter, including AC-A1-4010, are dated August 2012 and are titled to and the
property of Alpha Cognetics LLC, not the Blouches.
Because Mr. and Mrs. Blouch are not the inventors of the flute antenna design, patent
D791,746 S is unenforceable. See Cyber Acoustics, LLC v. Belkin Int'l, Inc., 988 F. Supp. 2d
1236, 1243 (D. Or. 2013) (holding that the “one bad apple” rule provides that “if either an
inventor or a non-inventor deliberately misrepresented to the PTO that he or she invented the
patent, that action renders the entire patent unenforceable”).
Given Mr. and Mrs. Blouch’s inequitable conduct in deceiving the Patent & Trademark
Office, Alpha Cognetics hereby demands that the Blouches cease and desist any and all efforts to
market, sell, or otherwise promote the flute antenna design. We have recently become aware of
the Blouches’ tortious interference with Alpha Cognetics’ dealings with Codan Radio
Communications and are preparing to take the necessary actions in court to remedy those
JOHN H. DOLLARHIDE Suite 1400

Post Office Box 6010 (601) 985-4593 1020 Highland Colony Park
Ridgeland, MS 39158-6010 John.Dollarhide@butlersnow.com Ridgeland, Mississippi 39157
T (601) 948-5711 x F (601) 985-4500 x www.butlersnow.com

BUTLER SNOW LLP
exhibit "k"
Steven R. Shaver, Esq.
June 20, 2018
Page 2
damages and any further actions. Furthermore, your letter additionally speaks that you and the
Blouches will “monitor for compliance.” The intention of this phrase was unknown, but it is now
apparent that you are set on interfering with Alpha Cognetics’ contracts and prospective business
relations. You and the Blouches are hereby demanded to cease and desist any such conduct.
Second, you noted at the end of your letter that the Blouches are represented by counsel
(you) and that Alpha Cognetics should not contact the Blouches. While this misstates the rules of
professional conduct regarding communications between parties when one or both are
represented by counsel, it does seem that you were unaware that this firm represents Alpha
Cognetics in its dispute with the Blouches. I take it the Blouches failed to inform you regarding
Alpha Cognetics’ attempt to have the Blouches return Alpha Cognetics property to it in 2016 and
that the Blouches failed to provide you a copy of my September 9, 2016 letter demanding such
return of all Alpha Cognetics property. Additionally, given that we now know that the Blouches
applied for the design patent only a few days later, it is clear that Mr. and Mrs. Blouch were
indeed in possession of the flute antenna drawings and other intellectual property despite their
representations to me to the contrary.
With respect to the Blouches’ malicious interference with Codan, Alpha Cognetics
demand that written communication be sent to Codan, copying me, whereby the Blouches
withdraw the previous correspondence. This written communication needs to be sent by 5 p.m.
central time this Friday, June 22, 2018.
Sincerely,
BUTLER SNOW LLP
John H. Dollarhide
JHD/csl
42831111v1
exhibit "l"
3:18-cv-440-CWR-FKB
# 0538-3752939

Alpha Cognetics v. Blouch - Complaint

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Alpha Cognetics v. Blouch - Complaint

Transféré par

Droits d'auteur :

Formats disponibles

Case 3:18-cv-00440-CWR-FKB Document 1 Filed 07/06/18 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT

ALPHA COGNETICS LLC and

v. Civil Action No. 3:18-cv-440-CWR-FKB

ROGER BLOUCH, SUSAN BLOUCH,

judgment seeking a declaration of noninfringement, unenforceability, and/or invalidity of United

Blouch, and Advanced HF Solutions, Inc. (collectively, “Defendants”), stating as follows:

NATURE OF THE ACTION

1. This is an action to end Defendants’ unauthorized and infringing actions of

business relations, and other tortious conduct.

natural citizen of Mississippi.

3. Alpha Cognetics Tech LLC is a wholly owned subsidiary of Alpha Cognetics

Oakwood, Texas 75855, by certified mail, or wherever he may be found.

wherever she may be found.

6. Advanced HF Solutions, Inc. (“Advanced HF Solutions”) is a corporation

JURISDICTION AND VENUE

Trade Secrets Act).

between citizens of different states.

have committed torts at least in part in this District.

dipole radio antennas, referred to as the Alpha Cognetics Antenna.

function, was referred to as the “Flute.”

Alpha Cognetics Acquires the Poynting Vector Antenna Intellectual Property

Exhibit B (the “License Agreement”).

develop, manufacture, and sell antennas based on the ‘535 Patent.

hereto as Exhibit C (the “Patent Assignment”).

Alpha Cognetics Antenna.

Roger Blouch Becomes an Officer of Alpha Cognetics

Technological Officer / Vice President of Engineering.

agent alongside Mr. Blouch.

is attached hereto as Exhibit E.

Mississippi from Texas, then fly out together with McArthur.

Mr. Blouch’s Actions Force His Termination

Mr. Blouch’s employment.

Cognetics property to Mr. McArthur, including the drawings.

belief, the Blouches were aware of these activities.

Alpha Cognetics Demands Return of All Property

See Affidavit of Non-Service, attached hereto as Exhibit G.

Oakwood, Texas residence.

Figure 1: Illustration from the ‘746 Patent

candidate for an ornamental design patent under 35 U.S.C. § 171.

filed their application.

As stated below, Alpha Cognetics has been harmed as a result.

Cognetics’ dealings with Codan Radio Communications (“Codan”). Id.

Mr. Blouch and Advanced HF Solutions Commence Tortious Interference

crux of this action and the need for injunctive relief.

communications equipment manufacturers and dealers, Codan was a preeminent business

Cognetics antenna in its catalog.

claimed patented design of the Flute Antenna. Id.

have had electrical/mechanical concerns.” Id.

demonstration and postponed all dealings with Alpha Cognetics indefinitely.

54. As a result of Defendants’ actions, Alpha Cognetics’ business relationships have

56. The above-described actions, words, and conduct of Defendants constituted

under Mississippi law.

59. Defendants’ actions were willful.

fraud on the USPTO as described below.

contributing to actual, compensatory, and consequential damages to Alpha Cognetics in an

and severally liable to Alpha Cognetics.

‘746 Patent, which requires a declaration of rights by this Court.

during the application process with the USPTO.

et seq. The duty of candor continues until the patent issues.

66. Information is material to patentability when it establishes, by itself or in

1.56; MPEP 2001.05 et seq.

substantially likely to consider important in deciding whether to allow an application to issue as

Cir. 2003) (emphasis in original).