Thrival v. Mollohan - Answer & Counterclaims

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.

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.
2
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
3
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
Thrival’s Design Patent Related to the Hip Hero Product
4
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.
23. Denied.
25. Denied.
26. Denied.
The Pso-Rite Massage Tool and Pso-Rite’s Design Patents
28. Admitted.
29. Admitted.
30. Admitted.
31. Admitted.
5
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.
of the ’336 Design Patent, the ’336 Design Patent speaks for itself. Mollohan denies the
remaining allegations in Paragraph 39.
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
6
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.
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.
Moreover, because Mollohan is not aware of the source of the screenshot set forth in Paragraph
7
53, Mollohan is without knowledge or information as to its authenticity, and therefore denies the
allegations set forth in Paragraph 53.
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
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.
8
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.
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)
FOURTH COUNTERCLAIM
(Request for Declaratory Judgment of Invalidity of the ’479 Design Patent)
(Against Pso-Rite)
9
FIFTH COUNTERCLAIM
(Request for Declaratory Judgment of Non-Infringement of the ’479 Design Patent)
(Against Pso-Rite)
SIXTH COUNTERCLAIM
(Trademark Cancellation – 15 U.S.C. § 1119)
(Against Pso-Rite)
SEVENTH COUNTERCLAIM
(Request for Declaratory Judgment of Non-Infringement and Invalidity of PSO Marks)
(Against Pso-Rite)
EIGHTH COUNTERCLAIM
(Request for Declaratory Judgment of Fair Use of “Pso”)
(Against Pso-Rite)
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
135. Denied.
10
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)
11
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)
12
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.
13
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.
14
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.
15
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)
16
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.
17
The D’336 Patent Defendants’ Infringing Bullseye Product
18
19
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
20
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
21
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)
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)
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
22
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;
23
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.
24
DATED: March 31, 2023 Respectfully submitted,
s/ Hollie J. Kucera
Hollie J. Kucera
[email protected]
Insigne PC
5650 El Camino Real, Ste 130
Carlsbad, CA 92008
Telephone: (858) 227-6633
Facsimile: (858) 408-4422
Trevor Q. Coddington
[email protected]
Insigne PC
2121 Lohmans Crossing Rd., Ste 504-138
Austin, TX 78734
Telephone: (737) 282-3600
Attorneys for Counterclaim-defendant

MACKENZIE MOLLOHAN
25
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
26

Thrival v. Mollohan - Answer & Counterclaims

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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

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

THRIVAL LLC, a Colorado limited liability company,

MACKENZIE MOLLOHAN, an individual,

COUNTERCLAIM-DEFENDANT MACKENZIE MOLLOHAN’S ANSWER,

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

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

positions and assert additional defenses as further discovery may warrant.

are hereby denied.

NATURE OF THE ACTION1

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

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

Thrival has any viable causes of action against Mollohan.

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

JURISDICTION AND VENUE

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

any remaining allegations in Paragraph 5.

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

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

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

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

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

Mollohan denies any remaining allegations in Paragraph 9.

Thrival and Its Products

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

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

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

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

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

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

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

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

Thrival’s Design Patent Related to the Hip Hero Product

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

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

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

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

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

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

remaining allegations in Paragraph 39.

remaining allegations in Paragraph 40.

remaining allegations in Paragraph 41.

its strict proofs.

therefore denies the allegations set forth in Paragraph 47.

allegations in Paragraph 48.

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

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

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

allegations set forth in Paragraph 53.

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

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

allegations set forth in Paragraph 55.

Mollohan otherwise denies the allegations set forth in Paragraph 60.

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

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

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

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

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

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

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