Case 1:21-cv-00775-PAB-STV Document 87 Filed 03/31/23 USDC Colorado Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No.: 1:21-cv-00775-PAB-STV

THRIVAL LLC, a Colorado limited liability company,

CAMERON SMITH, an individual,
DOMINIC RAINVILLE, an individual, and
WILLIAM SMITH, an individual,

Counterclaim-plaintiff,

v.

MACKENZIE MOLLOHAN, an individual,

Counter-defendant,

______________________________________________________________________________

COUNTERCLAIM-DEFENDANT MACKENZIE MOLLOHAN’S ANSWER,

DEFENSES, AND COUNTERCLAIMS
______________________________________________________________________________

Counterclaim-Defendant Mackenzie Mollohan (“Counterclaim-defendant” or

“Mollohan”), by and through its undersigned counsel, hereby provides its Answer, Defenses, and

Counterclaims in response to Defendants and Counterclaim-plaintiff Thrival LLC’s

(“Defendant” or “Thrival”) Counterclaims filed on October 28, 2022 (Dkt. 55), and states and

avers as follows:

GENERAL DENIAL

Mollohan denies all the allegations in Thrival’s Counterclaims unless expressly admitted

in the following paragraphs. Moreover, Mollohan denies that Thrival is entitled to any relief,

including that requested in its Prayer for Relief. Mollohan reserves the right to take additional

positions and assert additional defenses as further discovery may warrant.

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Because headings are not allegations, no response to them is required. To the extent the

headings in Thrival’s Counterclaims are deemed to contain factual allegations, such allegations

are hereby denied.

NATURE OF THE ACTION1

1. Except to admit that Thrival filed a counterclaim action for various claims,

including patent infringement, declaratory judgment of patent invalidity and non-infringement,

trademark cancellation, declaratory judgment of trademark non-infringement and invalidity,

declaratory judgment of trademark fair use, and intentional interference with prospective

business relations, Mollohan denies the allegations set forth in Paragraph 1 and denies that

Thrival has any viable causes of action against Mollohan.

THE PARTIES

2. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 2, and on that basis denies them.

3. Admitted.

4. Mollohan admits that he is one of Pso-Rite’s founders, owners, and principals and

is the inventor of “The Pso-Rite.” Mollohan further admits that he is Pso-Rite’s registered agent

and that he can be served at 1815 Purdy Avenue, Miami Beach, FL 33139 in his capacity as Pso-

Rite’s agent only. Mollohan denies Paragraph 4 to the extent that it alleges that he currently

1All headings and subheadings are as stated in Thrival’s Counterclaims. Mollohan’s replication
of headings in the Counterclaims are merely for convenience and are not to be considered an
admission of their accuracy. Accordingly, Mollohan denies them on this basis.

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resides in Miami, Florida. Any other allegation set forth in Paragraph 4 not expressly admitted is

denied.

JURISDICTION AND VENUE

5. Paragraph 5 asserts a legal conclusion regarding the subject matter jurisdiction of

this Court, so no response is required. To the extent that a response is required, Mollohan admits

that this Court has subject matter jurisdiction over Thrival’s Counts I-III and VI-VIII, but denies

that the Court has subject matter jurisdiction over Thrival’s Counts IV and V. Mollohan denies

any remaining allegations in Paragraph 5.

6. Paragraph 6 asserts a legal conclusion regarding the subject matter jurisdiction of

this Court, so no response is required. To the extent that a response is required, Mollohan admits

that this Court has subject matter jurisdiction over Thrival’s state-law counterclaims, Thrival’s

Count IX. Mollohan denies any remaining allegations in Paragraph 6.

7. Paragraph 7 asserts a legal conclusion regarding the personal jurisdiction of this

Court, so no response is required. To the extent that a response is required, Mollohan admits that

for the purposes of this action only the Court has personal jurisdiction over it. Mollohan denies

any remaining allegations in Paragraph 7.

8. Paragraph 8 asserts a legal conclusion regarding the personal jurisdiction of this

Court over Counterclaim-Defendant Mackenzie Mollohan (“Mr. Mollohan”), so no response is

required. To the extent that a response is required, Mollohan denies the allegations set forth in

Paragraph 8.

9. Paragraph 9 asserts a legal conclusion regarding venue of this Court, so no

response is required. To the extent that a response is required, Mollohan admits that for the

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purposes of this action only venue is proper in this Court as to counterclaims against Mollohan.

Mollohan denies any remaining allegations in Paragraph 9.

BACKGROUND

Thrival and Its Products

10. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 10, and on that basis denies them.

11. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 11, and on that basis denies them.

12. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 12, and on that basis denies them.

13. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 13, and on that basis denies them.

14. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 14, and on that basis denies them.

15. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 15, and on that basis denies them.

16. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 16, and on that basis denies them.

17. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 17, and on that basis denies them.

Thrival’s Design Patent Related to the Hip Hero Product

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18. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 18, and on that basis denies them.

19. To the extent the allegations of Paragraph 19 purport to characterize the contents

of the ’180 Design Patent, the ’180 Design Patent speaks for itself. As for the remaining

allegations of Paragraph 19, Mollohan is without knowledge or information sufficient to form a

belief as to the truth or falsity of the allegations set forth therein, and on that basis denies them.

20. Admitted.

21. Admitted.

22. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 22, and on that basis denies them.

23. Denied.

24. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 24, and on that basis denies them.

25. Denied.

26. Denied.

27. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 27, and on that basis denies them.

The Pso-Rite Massage Tool and Pso-Rite’s Design Patents

28. Admitted.

29. Admitted.

30. Admitted.

31. Admitted.

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32. Admitted.

33. Admitted.

34. Admitted.

35. Admitted.

36. Denied.

37. Mollohan admits that the Court granted in part Thrival’s Motion to Dismiss and

dismissed with prejudice Pso-Rite’s claim that Thrival and its members infringe the ’479 Design

Patent, but further states that this decision is not a final, non-appealable judgment and thus may

still be appealed to the United States Court of Appeals for the Federal Circuit.

38. Admitted.

39. To the extent the allegations of Paragraph 39 purport to characterize the contents

of the ’336 Design Patent, the ’336 Design Patent speaks for itself. Mollohan denies the

remaining allegations in Paragraph 39.

40. To the extent the allegations of Paragraph 40 purport to characterize the contents

of the ’336 Design Patent, the ’336 Design Patent speaks for itself. Mollohan denies the

remaining allegations in Paragraph 40.

41. To the extent the allegations of Paragraph 41 purport to characterize the contents

of the ’336 Design Patent, the ’336 Design Patent speaks for itself. Mollohan denies the

remaining allegations in Paragraph 41.

42. Mollohan admits the allegations set forth in Paragraph 42. However, because

Mollohan is not aware of the source of the photographs depicted in Paragraph 42, Mollohan is

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without knowledge or information as to the authenticity of the photographs, and leaves Thrival to

its strict proofs.

43. Denied.

44. Admitted.

45. Admitted.

46. Denied.

47. Because Mollohan is not aware of the source of the quotation and screenshot set

forth in Paragraph 47, Mollohan is without knowledge or information as to their authenticity, and

therefore denies the allegations set forth in Paragraph 47.

48. To the extent the allegations of Paragraph 48 purport to characterize the contents

of Pso-Rite’s website, Pso-Rite’s website speaks for itself. Mollohan denies the remaining

allegations in Paragraph 48.

49. Denied.

Pso-Rite’s [Alleged] Pattern and Practice of Suppressing Fair Competition

50. Denied.

51. Denied.

52. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 52, and on that basis denies them.

53. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 53, and on that basis denies them.

Moreover, because Mollohan is not aware of the source of the screenshot set forth in Paragraph

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53, Mollohan is without knowledge or information as to its authenticity, and therefore denies the

allegations set forth in Paragraph 53.

54. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 54, and on that basis denies them.

55. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 55, and on that basis denies them.

Moreover, because Mollohan is not aware of the source of the screenshot set forth in Paragraph

55, Mollohan is without knowledge or information as to its authenticity, and therefore denies the

allegations set forth in Paragraph 55.

56. Denied.

57. Denied.

58. Denied.

59. Denied.

60. Mollohan admits that on or about December 29, 2020, Pso-Rite sent a cease and

desist letter to Defendant Mr. Cameron Smith, with copy to Defendant Mr. William Edward

Smith, Defendant Mr. Dominic Rainville, Ms. McKenzie Flinchum, Mr. River Radamus, and

Ms. Wendy Puckett, accusing Thrival of, among other things, willfully infringing the ’479

Design Patent and unfairly competing and tortiously interfering with Pso-Rite’s business.

Mollohan otherwise denies the allegations set forth in Paragraph 60.

61. Denied.

62. Denied.

63. Denied.

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FIRST COUNTERCLAIM
([Alleged] Infringement of U.S. Patent No. 9,687,416)
(Against Pso-Rite and Mr. Mollohan)

64. Mollohan repeats its responses to the prior allegations as if fully set forth herein.

65. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 65, and on that basis denies them.

66. Mollohan is without knowledge or information sufficient to form a belief as to the

truth or falsity of the allegations set forth in Paragraph 66, and on that basis denies them.

67. Denied.

68. Denied.

69. Denied.

70. Denied.

71. Denied.

72. Denied.

73. Denied.

SECOND COUNTERCLAIM
(Request for Declaratory Judgment of Invalidity of the ’336 Design Patent)
(Against Pso-Rite)

74.-80. No response required as this counterclaim is not against Mollohan.

THIRD COUNTERCLAIM
(Request for Declaratory Judgment of Non-Infringement of the ’336 Design Patent)
(Against Pso-Rite)

81.-93. No response required as this counterclaim is not against Mollohan.

FOURTH COUNTERCLAIM
(Request for Declaratory Judgment of Invalidity of the ’479 Design Patent)
(Against Pso-Rite)

94.-100. No response required as this counterclaim is not against Mollohan.

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FIFTH COUNTERCLAIM
(Request for Declaratory Judgment of Non-Infringement of the ’479 Design Patent)
(Against Pso-Rite)

101.-105. No response required as this counterclaim is not against Mollohan.

SIXTH COUNTERCLAIM
(Trademark Cancellation – 15 U.S.C. § 1119)
(Against Pso-Rite)

106.-116. No response required as this counterclaim is not against Mollohan.

SEVENTH COUNTERCLAIM
(Request for Declaratory Judgment of Non-Infringement and Invalidity of PSO Marks)
(Against Pso-Rite)

117.-125. No response required as this counterclaim is not against Mollohan.

EIGHTH COUNTERCLAIM
(Request for Declaratory Judgment of Fair Use of “Pso”)
(Against Pso-Rite)

126.-132. No response required as this counterclaim is not against Mollohan.

NINTH COUNTERCLAIM
([Alleged] Intentional Interference with Prospective Business Relations)
(Against Pso-Rite and Mr. Mollohan)

133. Mollohan repeats its responses to the prior allegations as if fully set forth herein.

134. Mollohan admits that on or about December 29, 2020, Pso-Rite sent a cease and

desist letter to Defendant Mr. Cameron Smith, with copy to Defendant Mr. William

Edward Smith, Defendant Mr. Dominic Rainville, Ms. McKenzie Flinchum, Mr. River

Radamus, and Ms. Wendy Puckett, accusing Thrival of, among other things, willfully

infringing the ’479 Design Patent, Pso-Rite’s trademarks, and unfairly competing and

tortiously interfering with Pso-Rite’s business. Mollohan otherwise denies the

allegations set forth in Paragraph 134.

135. Denied.

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136. Denied.

137. Denied.

138. Denied.

RESPONSE TO EXCEPTIONAL CASE

Mollohan denies that this is an exceptional case and therefore denies that Defendants are

entitled to an award of their reasonable attorneys’ fees, costs, and expenses incurred in

connection with this action pursuant to 35 U.S.C. § 285, 15 U.S.C. § 1117, or any other statute,

rule or common law.

RESPONSE TO THRIVAL’S PRAYER FOR RELIEF

Mollohan denies each and every allegation not expressly admitted above. A response is

not required to Thrival’s Prayer for Relief. To the extent that a response is required, Mollohan

expressly denies that Thrival is entitled to the judgment and relief prayed for in Paragraphs A

through Q or to any relief whatsoever. Mollohan respectfully requests that the Court deny all of

Thrival’s Counterclaims and Prayer for Relief in their entirety and with prejudice.

ADDITIONAL DEFENSES

Mollohan asserts the following additional defenses to Thrival’s Counterclaims. In doing

so, Mollohan does not assume any burden of proof on any issues that is Thrival’s burden as a

matter of law. Mollohan also reserves the right to amend or supplement these defenses as

additional facts become known.

FIRST DEFENSE
(Lack Of Subject Matter Jurisdiction)

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The Court lacks subject matter jurisdiction over at least Thrival’s Fourth and Fifth

Counterclaims regarding the ’479 Design Patent because Thrival does not make, use, sell, or

offer for sale any product that Mollohan is presently accusing infringes the ’479 Design Patent.

SECOND DEFENSE
(Failure To State A Claim)

Thrival’s Counterclaims and any purported claims for relief alleged therein fail to state a

claim upon which relief can be granted.

THIRD DEFENSE
(Non-Infringement Of The ’416 Patent)

Mollohan has not infringed, and currently does not infringe, including directly, indirectly,

and/or under the doctrine of equivalents, any valid and enforceable claim of the ’416 Patent, and

therefore Mollohan is not liable for any infringement thereof.

FOURTH DEFENSE
(Invalidity Of The ’416 Patent)

The ’416 Patent is invalid for failure to comply with one or more of the conditions and

requirements of the patent laws, including but not limited to 35 U.S.C. §§ 101, 102, 103, 112,

and/or any other applicable statutory provisions of Title 35 of the United States Code.

FIFTH DEFENSE
(Prosecution History Estoppel)

The relief sought by Thrival with respect to the ’416 Patent is barred, in whole or in part,

under the doctrine of prosecution history estoppel due to amendments and/or statements made

during the prosecution of the ’416 Patent.

SIXTH DEFENSE
(Limitation On Damages And Costs)

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Thrival’s claim for damages for any alleged infringement of the ’416 Patent is barred, in

whole or in part, because Thrival and/or the predecessor or licensee(s) of the ’416 Patent failed

to satisfy the requirements of one or more of 35 U.S.C. §§ 286, 287, and/or 288.

SEVENTH DEFENSE
(Unavailability Of Injunctive Relief)

Thrival is not entitled to injunctive relief, as a matter of law, and cannot satisfy the

requirements applicable to its request for injunctive relief in any form.

EIGHTH DEFENSE
(Good Faith)

Mollohan has engaged in all relevant activities in good faith and, therefore, Mollohan’s

actions do not give rise to an exceptional case under 35 U.S.C. § 285 or 15 U.S.C. § 1117.

Accordingly, even if Thrival prevails, it is precluded from recovering its reasonable attorneys’

fees and/or costs under 35 U.S.C. § 285 or 15 U.S.C. § 1117.

NINTH DEFENSE
(Equitable Defenses)

Thrival’s claims against Mollohan are barred, in whole or in part, by the doctrine of

laches, waiver, estoppel, acquiescence, implied license, unclean hands, and/or any other

equitable remedy.

RESERVATION OF ADDITIONAL DEFENSES

Mollohan reserves the right to assert additional defenses in the event that discovery or

other analyses indicate that additional defenses are appropriate.

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COUNTERCLAIMS

Counterclaim-defendant Mackenzie Mollohan (“Mollohan”), by and through its

undersigned counsel, hereby brings the following Counterclaims against Counterclaim-defendant

Thrival LLC (“Thrival”) and Mr. Cameron Smith, Mr. Dominic Rainville, and Mr. William

Smith (Messrs. Smith, Rainville and Smith collectively referred to as “Individual Defendants”;

all Defendants collectively referred to as “Defendants”). Mollohan avers and states as follows:

Mollohan incorporates by reference herein Paragraphs 1-138 and its Defenses set forth

above in its Answer.

NATURE OF THE ACTION

1. This is a counterclaim action for various claims arising under the patent laws of

the United States, under 35 U.S.C. § 1, et seq., including but not limited to patent infringement

and declaratory judgment of patent non-infringement and invalidity. This “Counterclaims”

Section incorporates by reference and hereby alleges each of the facts set forth in the Complaint

(Dkt. 1) and the facts admitted by Mollohan in the above Answer.

THE PARTIES

2. Mackenzie Mollohan is an individual residing at 1815 Purdy Avenue, Miami

Beach, Florida 33139. Mackenzie Mollohan is the owner of Pso-Rite.com LLC (“Pso-Rite”)

3. Upon information and belief, Thrival is a Colorado limited liability company

formed and owned by Defendants Cameron Smith, Dominic Rainville and William Smith. Upon

information and belief, Thrival has its principal place of business at 2655 Copper Ridge Circle,

Unit 5, Steamboat Springs, Colorado 80487.

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4. Upon information and belief, Cameron Smith is an individual currently residing in

Routt County, Colorado. Upon information and belief, Cameron Smith is one of Thrival’s

founders, owners and principals. Upon information and belief, at all relevant times, Cameron

Smith is and has been an owner and principal of Thrival.

5. Upon information and belief, Dominic Rainville is one of Thrival’s founders,

owners and principals. Upon information and belief, at all relevant times, Dominic Rainville is

and has been an owner and principal of Thrival.

6. Upon information and belief, William Smith is one of Thrival’s founders, owners

and principals. Upon information and belief, at all relevant times, William Smith is and has been

an owner and principal of Thrival.

7. Upon information and belief, the Individual Defendants are the owners and

principals of Thrival. Upon information and belief, as part of their roles as Thrival, the

Individual Defendants directly and personally participate and participated in the acts of patent

infringement alleged and described herein, with full knowledge that such activities are in

violation of Mollohan’s rights pursuant to the U.S. patent laws. Accordingly, upon information

and belief, the Individual Defendants, in their capacity as owners and principals of Thrival, were

the moving, active and conscious forces behind Thrival’s infringement and other illegal

activities, as alleged herein.

JURISDICTION AND VENUE

8. This Court has subject matter jurisdiction over this action and Mollohan’s

counterclaims under 28 U.S.C. §§ 1331, 1338(a), 2201, and 2202.

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9. This Court has personal jurisdiction over Thrival for the reasons set forth in the

Complaint, which are incorporated herein by reference. Dkt. 1, ¶ 10. This Court also has

personal jurisdiction over Thrival because, inter alia, Thrival has submitted to the personal

jurisdiction of this Court by the filing of its Counterclaims. Dkt. 55.

10. This Court has personal jurisdiction over each of the Individual Defendants for

the reasons set forth in the Complaint, which are incorporated herein by reference. Dkt. 1, ¶ 11.

This Court also has personal jurisdiction over each of the Individual Defendants because, inter

alia, each Individual Defendant has submitted to the personal jurisdiction of this Court by filing

an Answer to the Complaint without challenging personal jurisdiction therein. Dkt. 55. As such,

any assertion that this Court does not have personal jurisdiction over the Individual Defendants

has been waived. See Fed. R. Civ. P. 12(h)(1).

11. Pursuant to 28 U.S.C. §§ 1391(b), (c) and 1400(b), venue is proper in this judicial

district as to the Defendants for the reasons set forth in the Complaint, which are incorporated

herein by reference. Dkt. 1, ¶ 12. Venue is also proper in this judicial district as to the

Defendants because, inter alia, Thrival has submitted to the venue of this Court by filing its

Counterclaims, because each Individual Defendant has submitted to the venue of this Court by

filing an Answer to the Complaint without challenging venue therein (and thus such challenge is

waived), and because the Defendants have committed acts of patent infringement in this district

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

(INFRINGEMENT OF U.S. DESIGN PATENT NO. D928,336
AS AGAINST ALL DEFENDANTS)

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12. Mollohan hereby incorporates by reference Paragraphs 1-11 as if fully set forth

herein.

13. On August 17, 2021, United States Design Patent No. D928,336 (the “D’336

Patent”), entitled “Massager,” was duly and legally issued by the United States Patent and

Trademark Office (“USPTO”). A true and correct copy of the D’336 Patent is attached hereto as

Exhibit A. The D’336 Patent is valid, enforceable, and currently in full force and effect.

14. Pso-Rite is the owner and assignee of all substantial rights, title, and interest in the

D’336 Patent, including the full and exclusive right to bring this action and enforce the D’336

Patent against infringers, and the right to recover damages for all relevant time periods, including

for past infringement.

15. Defendants have infringed and continue to infringe the D’336 Patent at least by

making, using, offering for sale, selling, and/or importing into or in the United States its Bullseye

product (“Infringing Product”), which is covered by the design claimed in the D’336 Patent,

without a license or permission from Pso-Rite.

16. As shown by the side-by-side comparisons of the design claimed in the D’336

Patent and the Infringing Product set forth below, in the eye of the ordinary observer familiar

with the relevant prior art, giving such attention as a purchaser usually gives, the overall

appearance of the claimed design of the D’336 Patent and the design of the Infringing Product

are substantially the same, such that the ordinary observer would be deceived into believing that

the Infringing Product is the same as the design claimed in the D’336 Patent, and would be

induced into purchasing one supposing it to be the other.

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The D’336 Patent Defendants’ Infringing Bullseye Product

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The D’336 Patent Defendants’ Infringing Bullseye Product

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The D’336 Patent Defendants’ Infringing Bullseye Product

17. Pso-Rite did not give Defendants a license or other authorization to make, use,

offer to sell, sell, or import the Infringing Product in or into the United States.

18. Defendants have directly infringed, and continue to directly infringe, the D’336

Patent by making, using, offering to sell, selling and/or importing into or in the United States the

Infringing Product in violation of 35 U.S.C. § 271(a).

19. Upon information and belief, Defendants also induced, and continue to induce,

others to infringe the D’336 Patent by encouraging and promoting the use and/or sale by others

of the Infringing Product in violation of 35 U.S.C. § 271(b).

20. Defendants have applied the patented design of the D’336 Patent, or at least a

colorable imitation thereof, to an article of manufacture for the purpose of sale, and/or have sold

or exposed for sale an article of manufacture to which such design or colorable imitation has

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been applied. Thus, Defendants are liable to Pso-Rite to the extent of Defendants’ total profit for

such sales under 35 U.S.C. § 289.

21. Upon information and belief, Defendants have had actual knowledge of the D’336

Patent since at least August 17, 2021 (the date the D’336 Patent issued) because Pso-Rite put

Defendants on notice of the D’336 Patent’s expected issuance and Defendants’ infringement

thereof on or about July 6, 2021. Dkt. 55, at ¶¶ 35-36.

22. Upon information and belief, Defendants knew or should have known that the

making, using, offering to sell, selling and/or importing into the United States of the Infringing

Product would directly infringe the D’336 Patent.

23. Defendants’ direct and indirect infringement of the D’336 Patent has caused and

will continue to cause damage to Pso-Rite.

24. Defendants’ direct and indirect infringement has also caused and will continue to

cause irreparable harm to Pso-Rite for which there is no adequate remedy at law unless and until

such infringing conduct is enjoined pursuant to 35 U.S.C. § 283 and/or the equitable powers of

this Court.

25. Because Defendants had knowledge of their direct infringement of the D’336

Patent since at least August 17, 2021, Defendants’ acts of infringement have been and continue

to be willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant,

characteristic of a pirate and an egregious case of misconduct beyond typical. Therefore, such

acts constitute willful infringement and make this case exceptional pursuant to 35 U.S.C. §§ 284

and 285. Defendants’ willful infringement entitles Pso-Rite to enhanced damages under 35

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U.S.C. § 284 and to its reasonable attorneys’ fees and costs in prosecuting this action under 35

U.S.C. § 285.

SECOND CLAIM FOR RELIEF

(DECLARATORY JUDGMENT OF NON-INFRINGEMENT
OF THRIVAL’S U.S. PATENT NO. 9,687,416)

26. Mollohan hereby incorporates by reference Paragraphs 1-25 as if fully set forth

herein.

27. Based on Thrival’s filing of its Counterclaim against Mollohan for alleged

infringement of U.S. Patent No. 9,687,416 (the “’416 Patent”) and Mollohan’s defenses to same

as set forth in Mollohan’s Answer above, an actual controversy has arisen and now exists

between Thrival and Mollohan as to Mollohan’s alleged infringement of the ’416 Patent.

28. Mollohan has not infringed, nor is it infringing, any of the asserted claims of the

’416 Patent either directly, or indirectly, literally or under the doctrine of equivalents, at least

because its Pso-Rite Massage Tool does not infringe, literally or under the doctrine of

equivalents, any claim of the ’416 Patent.

29. Mollohan respectfully requests the Court to declare that the asserted claims of the

’416 Patent are not infringed by Mollohan.

THIRD CLAIM FOR RELIEF

(DECLARATORY JUDGMENT OF INVALIDITY
OF THRIVAL’S U.S. PATENT NO. 9,687,416)

30. Mollohan hereby incorporates by reference Paragraphs 1-29 as if fully set forth

herein.

31. Based on Thrival’s filing of its Counterclaim against Mollohan for alleged

infringement of the ’416 Patent and Mollohan’s defenses to same as set forth in Mollohan’s

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Answer above, an actual controversy has arisen and now exists between Thrival and Mollohan as

to the validity of the ’416 Patent.

32. The asserted claims of the ’416 Patent are invalid for failing to comply with the

patent law provisions of the United States, as codified in Title 35 of the United States Code,

including failing to comply with one or more of the requirements of 35 U.S.C. §§ 101, 102, 103,

and/or 112 thereof, or the Rules and Regulations of the USPTO set forth in Title 37 of the Code

of Federal Regulations.

33. For example, the asserted claims of the ’416 Patent are invalid because they fail to

meet the conditions for patentability under 35 U.S.C. §§ 101, 102, 103, and/or 112 because they

lack utility, are taught by, suggested by, and/or rendered obvious in view of the prior art, and/or

are not adequately supported by the written description, and/or are indefinite and/or are not

enabled.

34. Mollohan requests the Court to declare that the asserted claims of the ’416 Patent

are invalid.

DEMAND FOR JURY TRIAL

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Mollohan hereby demands a

trial by jury on all issues so triable.

PRAYER FOR RELIEF

WHEREFORE, Mollohan respectfully requests the following relief:

A. Entry of a judgment in favor of Mollohan on all Counts of the Counterclaims;

B. Entry of a judgment that Thrival takes nothing by its Counterclaims and dismiss

the same with prejudice;

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C. Entry of a judgment that Defendants have directly and/or indirectly infringed the

D’336 Patent and that such infringement has been willful;

D. Entry of a permanent injunction against Defendants, pursuant to 35 U.S.C. § 283

and/or the equitable powers of this Court, to prevent further direct and/or induced infringement

of the D’336 Patent;

E. Entry of an award of damages, in an amount to be determined, adequate to

compensate Mollohan for the infringement that has occurred, pursuant to 35 U.S.C. § 284;

F. Entry of an Order requiring Defendants to account for and pay to Mollohan any

and all profits made by Defendants from the sales of their infringing products pursuant to 35

U.S.C. § 289;

G. Entry of an Order trebling damages pursuant to 35 U.S.C. § 284 for Defendants’

willful infringement of Pso-Rite’s D’336 Patent;

H. Entry of a judgment that Mollohan has not infringed, nor is it infringing, either

directly or indirectly, literally or under the doctrine of equivalents, any of the asserted claims of

the ’416 Patent;

I. Entry of a judgment that the asserted claims of the ’416 Patent are invalid;

J. Entry of a judgment finding that this case is exceptional within the meaning of 35

U.S.C. § 285 and an Order requiring Defendants to pay Mollohan its costs and attorneys’ fees in

this action pursuant to 35 U.S.C. § 285 and/or other applicable laws; and

K. Entry of an award for any further relief as the Court may deem just and proper.

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DATED: March 31, 2023 Respectfully submitted,

s/ Hollie J. Kucera
Hollie J. Kucera
hkucera@insigne.law
Insigne PC
5650 El Camino Real, Ste 130
Carlsbad, CA 92008
Telephone: (858) 227-6633
Facsimile: (858) 408-4422

Trevor Q. Coddington
trevor@insigne.law
Insigne PC
2121 Lohmans Crossing Rd., Ste 504-138
Austin, TX 78734
Telephone: (737) 282-3600

Attorneys for Counterclaim-defendant

MACKENZIE MOLLOHAN

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CERTIFICATE OF SERVICE

I hereby certify that on March 31, 2023, I electronically filed the foregoing with the Clerk

of the Court using the CM/ECF system which will send notification of such filing to all counsel of

record.

/s/ Hollie J. Kucera

Hollie J. Kucera

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