Dog resting on mat.

We have three dogs—all big, goofy rescue mutts—and love them dearly, though apparently not as much as some people love their dogs. Because until now, I was unaware of the existence of self-cooling mats, which keep your dog "cool and comfy with pressure activated gel technology that absorbs body heat and delivers relief for pets from heat or joint pain."

Apologies to Bailey, Cassie and Merlin for depriving you of the latest in dog comfort. You'll have to make do with lying on the tile floor in the bathroom and panting. 

Yet apparently the market for these mats is lucrative enough to warrant hiring Kirkland & Ellis to litigate a patent fight and antitrust counterclaims of attempted monopolization.

Kirkland partners David Draper and Russell Levine represent Fine Promotions in a fight against Green Pet Shop Enterprise and its lawyers from The Rando Law Firm in New York and Carlson, Gaskey & Olds in Michigan.

In August of 2018, Green Pet Shop sued Fine for patent infringement in the Eastern District of New York, alleging that Fine's "Unleashed Comfort Cooling Gel Pet Mat" infringes two of Green Pet Shop's patents for a "Pressure Activated Recharging Cooling Platform."

Green Pet Shop noted that it sued another gel pet mat maker, Maze Innovations (represented by K&L Gates), in 2015 in the Northern District of Illinois, and that the U.S. Patent and Trademark Office rejected Maze's petition to institute an inter partes review on validity of the relevant patents. After the judge in that case issued a claim construction decision favorable to Green Pet Shop, Maze settled.

Apparently emboldened, Green Pet Shop has gone all-out against other competitors. But if they want to play hardball, they may have picked the wrong opponent. 

(Which is not to say Kirkland counsel are being jerks. When Green Pet Shop lawyers from Carlson Gaskey missed the due date for filing preliminary infringement contentions, "because of internal confusion regarding the appropriate due date. This was solely the fault of Green Pet Shop's counsel," wrote Steven Susser in a letter to the court, he said the Kirkland team "graciously agreed to concur in Green Pet Shop's request" to extend the deadline,)

But when it comes to substance, the Kirkland team has responded with big counterclaims alleging that Green Pet Shop and its brand manager Firefly Buys have conspired since 2017 to monopolize the market for cooling pet mats.

According to Draper, Green Pet Shop and Firefly browsed product listings on Amazon to find targets for takedown requests, allegedly getting more than 1,000 self-cooling pet mat products removed.  (OK seriously, how are there 1,000 self-cooling pet mat products? Something is very wrong with our society.)

But Draper argues the takedown requests were misleading. 

To support the requests, Green Pet Shop submitted its consent decree with Maze, claiming "without support, that the competitor product listings being complained of 'have the same characteristics as the Maze accused products that have been found to infringe,'" Draper wrote. 

He pointed out that "no court had 'found' that Maze's accused products infringed Green Pet Shop's patents. Rather, in exchange for dismissal of Green Pet Shop's lawsuit, Maze agreed to stipulate that its product infringed two of Green Pet Shop's patents."

Moreover, there's no way to tell from a product description on Amazon if a rival pet mat even uses Green Pet Shop's technology. "Green Pet Shop's and Firefly Buy's actual criteria for submitting an IP infringement complaint to Amazon was, on information and belief, whether a third-party product posed any competitive risk," Draper asserted.

So how come Amazon went along with the requests? 

Initially, they didn't, Draper said. 

"In the beginning, Green Pet Shop's and Firefly Buys' IP infringement complaints yielded mixed results. Sometimes Amazon would grant the request to remove the complained-of product listing, but other times Amazon would simply forward the complaint to the seller, and advise the seller and Green Pet Shop to confer."

In response, Draper said, Green Pet Shop "worked on developing an inside relationship with Alex Crawford, a program manager at Amazon, to gain insight into Amazon's product listing takedown process and to gain inside help with facilitating the submission of Green Pet Shop's complaints and obtaining successful product removals. At Green Pet Shop's and Firefly Buys' behest, Alex Crawford began coordinating with Amazon's 'patents team' and 'legal team' to fast-track Green Pet Shop's and Firefly Buys' efforts to remove competitors' product listings."

Draper continued, "Alex Crawford also divulged to Green Pet Shop and Firefly Buys how they could circumvent Amazon's proprietary automated algorithms that rank legitimacy of takedown complaints."

Neither Amazon nor Crawford are named in the suit.

Draper also questioned whether Green Pet Shop's patents are even valid, claiming the existence of prior art. 

Given the, um, high stakes in the pet cooling mat market, I guess I shouldn't be surprised that at least five other companies are also fighting Green Pet Shop's allegations of patent infringement and also have allegedly uncovered invalidating prior art.

The Kirkland team in alleging conspiracy to attempt to monopolize, tortious interference with their client's relationship with Amazon, bad faith patent enforcement and unfair competition wants treble damages, legal fees, injunctive relief and a declaratory judgment of non-infringement.