Agricultural Instruments v. Bou-Matic, LLC - false marking complaint

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Agricultural Instruments v. Bou-Matic, LLC - false marking complaint Powered By Docstoc
					                           UNITED STATES DISTRICT COURT
                           WESTERN DISTRICT OF WISCONSIN
AGRICULTURAL INSTRUMENTS
CORP.
609 North Holmen Drive
Holmen, Wisconsin 54636,
              Plaintiff,
                                                 Case No: ___________________
       v.
BOU-MATIC LLC
1919 South Stoughton Road
Madison, Wisconsin 53708,
              Defendant.

                                    COMPLAINT


       Plaintiff Agricultural Instruments Corp. (“AIC”), by and through its attorneys,

DeWitt Ross & Stevens S.C., for its Complaint against Defendant Bou-Matic LLC

(“Bou-Matic”), states as follows:

                             NATURE OF THE ACTION
       1.     This is an action arising under the United States Patent Laws, 35 U.S.C.

§ 1 et seq. AIC brings this action seeking damages and injunctive relief arising out of

Defendants’ infringement of U.S. Patent Nos. 6,031,367 (“367 Patent”) and 6,307,362

(“362 Patent”).

       2.     AIC also brings this matter as a qui tam action for false patent marking

under 35 U.S.C. § 292.

       3.     As set forth below, Bou-Matic has violated 35 U.S.C. § 292 by marking its

“Advantage TS” Automatic Tie-Stall Detacher (“Advantage TS”) product with the term

“patented,” even though it does not hold any patents that cover the Advantage TS. On
information and belief, Bou-Matic marks the Advantage TS with the term “patented”

with the intent to deceive the public and to gain a competitive advantage in the market.

         4.    AIC seeks an award of monetary damages against Bou-Matic pursuant to

35 U.S.C. § 292(b) of up to $500 for each offense, with one-half going to the use of the

United States and the other half going to the person bringing the action.

                                     THE PARTIES

         5.    Plaintiff AIC is a Wisconsin corporation, with its principal place of

business located at 609 North Holmen Drive, Holmen, Wisconsin 54636.

         6.    Defendant Bou-Matic is a Nevada limited liability company, with its

principal place of business located at 1919 South Stoughton Road, Madison, Wisconsin

53708.

         7.    Bou-Matic is the maker of the Advantage TS, which is marked with the

word “patented.”

      8.       Upon information and belief, Bou-Matic is a sophisticated company and

has experience applying for and obtaining patents.

      9.       As a sophisticated company, Bou-Matic (by itself or by its representatives)

knows, or reasonably should know, of the requirements of 35 U.S.C. § 292. In particular,

Bou-Matic knows, or reasonably should know, that products may not be marked with the

word “patent” or any word or number importing the same is patented for the purpose of

deceiving the public.

                            JURISDICTION AND VENUE

         10.   This is an action for patent infringement and false patent marking arising

under the patent laws of the United States, 35 U.S.C. § 1 et seq. This Court has subject

matter jurisdiction under 28 U.S.C. §§ 1331 and 1338.


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        11.      Bou-Matic is registered to do business in Wisconsin and holds its principal

place of business within this judicial district. Bou-Matic regularly and systematically

conducts business activities in this judicial district.

        12.      Bou-Matic has committed acts of patent infringement in this judicial

district and throughout the State of Wisconsin, and has offered for sale its falsely marked

product in this district.

        13.      Venue is proper in this Court under 28 U.S.C. §§ 1391 and 1400(b), in that

Bou-Matic carried out solicitation or service activities within this judicial district, and as

Bou-Matic’s falsely marked products have been offered for sale and/or sold in this

district.

                                      BACKGROUND

        14.      On February 29, 2000, the ‘367 Patent issued for an invention entitled

“Somatic Cell Analyser,” which was subsequently assigned to AIC.

        15.      On October 23, 2001, the ‘362 Patent issued for the “Somatic Cell

Analyser,” which was subsequently assigned to AIC.

        16.      The “Somatic Cell Analyser” is a device for evaluating milk quality and

detecting the presence of either infectious or environmental mastitis in dairy cows during

the milking process.

        17.      AIC manufactures and sells dairy equipment using its patented Somatic

Cell Analyser.

        18.      Between approximately February 2005 and September 2008, upper-level

management representatives from AIC and Bou-Matic met at various times and held




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ongoing negotiations in an effort to develop a long-term business relationship between

the parties, including the potential of an acquisition of AIC by Bou-Matic.

       19.     Of particular interest to Bou-Matic was the Somatic Cell Analyser

intellectual property and equipment manufactured by AIC which incorporated it.

       20.     In conjunction with said discussions, AIC disclosed to Bou-Matic

confidential financial, asset, ownership, marketing, product, sales projection, and patent

information.

       21.     During the course of these negotiations, Bou-Matic announced its

acquisition of Strangko (“Strangko”), a Danish company that manufactures milking and

other agricultural equipment, in approximately February 2007.

       22.     In August 2008, Bou-Matic extended an offer to purchase AIC.

       23.     The parties were unable to reach an agreement.

       24.     Despite multiple efforts by AIC to continue discussions with Bou-Matic,

all business discussions between the parties ceased after September 2008.

       25.     In approximately August 2010, AIC became aware of a product developed

by Bou-Matic, the Advantage TS.

       26.     On or about September 20, 2010, AIC sent Bou-Matic a cease and desist

letter, informing Bou-Matic that the Advantage TS incorporates features patented by

AIC.

       27.     In that letter, AIC demanded that Bou-Matic immediately cease all sales

and marketing efforts of the Advantage TS, and that failure to do so would result in legal

action by AIC for patent infringement.




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          28.   To date, upon information and belief, Bou-Matic has not ceased its sales

of or marketing efforts for the Advantage TS.

          29.   Bou-Matic had prior knowledge of the ‘367 Patent and ‘362 Patent owing

to the prior and unsuccessful negotiations between AIC and Bou-Matic concerning a

possible purchase of AIC and its patents.

          30.   Strangko developed a product by the name of the Soffimat Plus, which

Strangko has displayed at the World Dairy Expo for at least three years.

          31.   Upon information and belief, the Advantage TS and the Soffimat Plus are

essentially the same pieces of equipment.

          32.   The Advantage TS and the Soffimat Plus infringe claim 1 of the ‘367

Patent.

          33.   The Advantage TS and the Soffimat Plus infringe claims 1 and 20 of the

‘362 Patent.

          34.   The Advantage TS is marked as “patented” although, upon information

and belief, Bou-Matic does not hold any patents that cover this product.

                                      COUNT ONE

                  INFRINGEMENT OF U.S. PATENT NO. 6,031,367

          35.   Paragraphs 1-34 above, inclusive, are incorporated herein by reference.

          36.   Without consent or license from AIC, and in violation of 35 U.S.C.

§ 271(a), Bou-Matic has made, used, sold or offered to sell the Advantage TS, which

infringes claim 1 of the ‘367 Patent, literally and/or under the doctrine of equivalents.

          37.   Without consent or license from AIC, and in violation of 35 U.S.C.

§ 271(b) and/or (c), Bou-Matic has actively induced the infringement of, and/or




                                              5
contributed to the infringement of, claim 1 of the ‘367 Patent, literally and/or under the

doctrine of equivalents.

       38.      The foregoing acts of infringement were and continue to be performed

with Bou-Matic’s knowledge of the ‘367 Patent and, upon information and belief, Bou-

Matic’s knowledge that the Advantage TS infringes the ‘367 Patent.

       39.      Upon information and belief, Bou-Matic has infringed, and continues to

infringe, upon the ‘367 Patent knowingly and willfully, rendering this an exceptional case

pursuant to 35 U.S.C. § 285.

       40.      As a direct and proximate consequence of the acts and practices of Bou-

Matic, Bou-Matic has caused, is causing and, unless such acts and practices are enjoined

by the Court, will continue to cause irreparable harm to AIC for which there is no

adequate remedy at law, and for which AIC is entitled to injunctive relief pursuant to 35

U.S.C. § 283.

       41.      As a direct and proximate consequence of the acts and practices of Bou-

Matic, AIC has also been, is being and, unless such acts and practices are enjoined by the

Court, will continue to be injured in its business and property rights, and AIC has

suffered, is suffering, and will continue to suffer injury and damages for which it is

entitled to relief under 35 U.S.C. § 284.

                                      COUNT TWO

                  INFRINGEMENT OF U.S. PATENT NO. 6,307,362

       42.      Paragraphs 1-41 above, inclusive, are incorporated herein by reference.

       43.      Without consent or license from AIC, and in violation of 35 U.S.C.

§ 271(a), Bou-Matic has made, used, sold or offered to sell the Advantage TS, which




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infringes claims 1 and 20 of the ‘362 Patent, literally and/or under the doctrine of

equivalents.

       44.      Without consent or license from AIC, and in violation of 35 U.S.C.

§ 271(b) and/or (c), Bou-Matic has actively induced the infringement of, and/or

contributed to the infringement of, claims 1 and 20 of the ‘362 Patent, literally and/or

under the doctrine of equivalents.

       45.      The foregoing acts of infringement were and continue to be performed

with Bou-Matic’s knowledge of the ‘362 Patent and, upon information and belief, Bou-

Matic’s knowledge that the Advantage TS infringes the ‘362 Patent.

       46.      Upon information and belief, Bou-Matic has infringed, and continues to

infringe, upon the ‘362 Patent knowingly and willfully, rendering this an exceptional case

pursuant to 35 U.S.C. § 285.

       47.      As a direct and proximate consequence of the acts and practices of Bou-

Matic, Bou-Matic has caused, is causing and, unless such acts and practices are enjoined

by the Court, will continue to cause irreparable harm to AIC for which there is no

adequate remedy at law, and for which AIC is entitled to injunctive relief pursuant to 35

U.S.C. § 283.

       48.      As a direct and proximate consequence of the acts and practices of Bou-

Matic, AIC has also been, is being and, unless such acts and practices are enjoined by the

Court, will continue to be injured in its business and property rights, and AIC has

suffered, is suffering, and will continue to suffer injury and damages for which it is

entitled to relief under 35 U.S.C. § 284.




                                            7
                                    COUNT THREE

                                  FALSE MARKING

       49.     AIC hereby incorporates by reference herein paragraphs 1-48 above.

       50.     Upon information and belief, Bou-Matic has marked the Advantage TS as

“patented” although it does not hold any patents that cover this product.

       51.     Upon information and belief, Bou-Matic has marked the Advantage TS as

“patented” with knowledge that it does not hold any patents that cover this product.

       52.     Upon information and belief, Bou-Matic intentionally added the term

“patented” on the Advantage TS in an attempt to prevent competitors from using or

selling a similar product.

       53.     Upon information and belief, Bou-Matic marked the Advantage TS with

the term “patented” for the purpose of deceiving the public.

       54.     The false marking of “patented” on Bou-Matic’s Advantage TS product is

likely to, or at least has the potential to, discourage or deter persons and companies from

commercializing competing products.

       55.     Bou-Matic has wrongfully and illegally advertised patent rights which it

does not possess and, as a result, upon information and belief, has benefitted

commercially and financially by maintaining false statements of patent rights.

       56.     Upon information and belief, Bou-Matic knows or reasonably should

know that marking the Advantage TS with the term “patented,” where it does not possess

any patents that cover the product, is impermissible pursuant to 35 U.S.C. § 292.




                                             8
       57.      Upon information and belief, Bou-Matic’s false marking has wrongfully

deterred competition, causing harm to the United States in an amount that cannot be

readily determined.

       58.      Bou-Matic’s false marking on the Advantage TS product contributes to

causing harm to AIC, the United States, and the general public.

       59.      Each time the term “patented” wrongfully appears on an Advantage TS

product is a separate offense pursuant to 35 U.S.C. § 292(a).

                                REQUEST FOR RELIEF

       WHEREFORE, Plaintiff seeks the following relief from the Court:

       (a)      Judgment that Bou-Matic has infringed, induced infringement, and/or

committed acts of contributory infringement, with respect to claim 1 of U.S. Patent No.

6,031,367 and claims 1 and 20 of U.S. Patent No. 6,307,362;

       (b)      An order permanently enjoining Bou-Matic and its affiliates, subsidiaries,

officers, directors, agents, employees, representatives, licensees, successors, assigns, and

all those acting for Bou-Matic and on its behalf, or acting in concert with Bou-Matic

directly or indirectly, from making, using, selling or offering to sell products that infringe

U.S. Patent Nos. 6,031,367 and 6,307,362, pursuant to 35 U.S.C. § 283;

       (c)      An award of damages to Plaintiff in an amount adequate to compensate it

for Defendants’ infringement of U.S. Patent Nos. 6,031,367 and 6,307,362, but in no

event less than a reasonable royalty, together with interest and costs pursuant to 35

U.S.C. § 284;




                                              9
       (d)      A determination that Bou-Matic has willfully and deliberately infringed,

willfully contributed to the infringement of, and willfully induced infringement of one or

more claims of U.S. Patent Nos. 6,031,367 and 6,307,362;

       (e)      An order enhancing/trebling the foregoing damages due to Defendant’s

willful infringement pursuant to 35 U.S.C. § 284;

       (f)      A determination that this is an exceptional case within the meaning of 35

U.S.C. § 285;

       (g)      An order that Bou-Matic be ordered to pay AIC’s costs, expenses, and

reasonable attorneys’ fees pursuant to 35 U.S.C. §§ 284 and 285;

       (h)      An order that Bou-Matic has falsely marked products in violation of 35

U.S.C. § 292;

       (i)      An award of damages, pursuant to 35 U.S.C. § 292, of a fine of $500 per

false marking offense, or an amount as determined by the Court, one half of which shall

be paid to the United States;

       (j)      All costs and expenses incurred in pursuing this action;

       (k)      An award to AIC of pre-judgment and post-judgment interest on the

damages caused to it by the infringement of Bou-Matic; and

       (l)      An award of such other and further relief as the Court may deem just and

proper under the circumstances.




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                                        JURY DEMAND

        Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff hereby demands a

jury trial on all issues triable to a jury.

        Dated this 16th day of February, 2011.

                                          DEWITT ROSS & STEVENS S.C.


                                          By:     s/ Harry E. Van Camp
                                                Harry E. Van Camp (#1018568)
                                                Craig Fieschko (#1019872)
                                                Deborah C. Meiners (#1074114)
                                                Two East Mifflin Street, Suite 600
                                                Madison, WI 53703-2865
                                                608-255-8891
                                                ATTORNEYS FOR PLAINTIFF
                                                AGRICULTURAL INSTRUMENTS CORP.




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