UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

CEQUENT PERFORMANCE PRODUCTS, INC., Plaintiff, v. WYERS PRODUCTS GROUP, INC., and PHILIP W. WYERS, Defendants. ________________________________________/ David B. Cupar (OH 0071622) Matthew J. Cavanagh (OH 0079522) MCDONALD HOPKINS LLC 600 Superior Avenue, East, Ste. 2100 Cleveland, Ohio 44114 t 216.348.5400 f 216.348.5474 dcupar@mcdonaldhopkins.com mcavanagh@mcdonaldhopkins.com and Timothy J. Lowe (P68669) MCDONALD HOPKINS LLC 39533 Woodward Ave., Suite 318 Bloomfield Hills, Michigan 48304 t 248.646.5070 f 248.646.5075 tlowe@mcdonaldhhopkins.com Attorneys for Cequent Performance Products, Inc. ________________________________________/

Case No. 2:13-cv-10065 Judge

Demand For Jury Trial

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Complaint For its complaint against defendants Wyers Products Group, Inc. (Products Group) and Philip W. Wyers (Wyers), plaintiff Cequent Performance Products, Inc. (Cequent) states: Summary Of Case 1. This is an action for damages and injunctive relief to remedy the

infringement by Products Group and Wyers (collectively, the Defendants) of U.S. Patent No. 6,722,686 (the 686 Patent), which is assigned to and owned by Cequent. The 686 Patent is directed to a coupler lock that closes around the socket of an unhitched trailer hitch coupler to prevent theft. A copy of the 686 Patent is attached as Exhibit A. 2. Cequent also seeks declaratory judgments that two patents that are

owned by Wyers, which he and Products Group have accused Cequent of infringing, are: (a) not infringed by Cequent; and (b) not valid and thus not enforceable against Cequent. Those two patents are U.S. Patent Nos. 6,672,115 (the 115 Patent) and 7,121,121 (the 121 Patent). The Parties 3. Michigan. 4. Products Group is a Colorado corporation with a principal place of Cequent is a Delaware corporation with a principal place of business in

business in Colorado. 5. Wyers is an individual who resides in Colorado.

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Jurisdiction And Venue 6. This Court has subject matter jurisdiction over Cequents patent

infringement claim under 28 U.S.C. 1331 and 1338 because it arises under federal law and under 28 U.S.C. 1332 because the parties are diverse. 7. This Court also has subject matter jurisdiction over Cequents

declaratory judgment claims because they too arise under federal law, because the parties are diverse, and because the Defendants have created a judiciable controversy by each accusing Cequent of infringing the 115 and 121 Patents. 8. This Court has specific personal jurisdiction over Products Group on

various grounds, including (without limitation) because it has accused Michiganbased Cequent of infringing the 115 and 121 Patents; it has derived benefit from the sale of products allegedly covered by the 115 and 121 Patents throughout the U.S. and, upon information and belief, in Michigan; it and Wyers have worked together to exclude others from selling products covered by the 115 and 121 Patents in the United States, including in Michigan; its infringement of the 686 Patent has caused tortious harm to Cequent in Michigan; and it offers to sell products in Michigan that infringe the 686 Patent and, upon information and belief, has actually sold infringing products in Michigan. 9. This Court also has specific personal jurisdiction over Wyers on

various grounds, including (without limitation) because he has accused Michiganbased Cequent of infringing the 115 and 121 Patents; he has derived personal benefit from the sale of products allegedly covered by the 115 and 121 Patents

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throughout the U.S. and, upon information and belief, in Michigan; he and Products Group have worked together to exclude others from selling products covered by the 115 and 121 Patents in the United States, including in Michigan; his infringement of the 686 Patent has caused tortious harm to Cequent in Michigan; and because, upon information and belief, he has personally directed Products Group to offer for sale, ship, and sell products that infringe the 686 Patent in Michigan, and Wyers has personally profited by having Products Group do so. 10. This Court further has general personal jurisdiction over Defendants

because, upon information and belief, Wyers and his Products Group business have regularly solicited business in Michigan, engaged in a persistent course of conducting business in Michigan, and derived substantial revenue from goods sold in Michigan. 11. Venue is proper under 28 U.S.C. 1391 because the Defendants are

each subject to personal jurisdiction in this district under Michigan law and, therefore, each resides in the Eastern District of Michigan according to federal law. Relevant Facts I. The 686 Patent 12. Since around 1950, Cequent and its predecessors have continually

designed, produced, manufactured, and marketed a wide array of towing and trailer hitch products and accessories for trailer equipment manufacturers, wholesalerdistributors, and retail markets.

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13. 686 Patent. 14.

On April 20, 2004, the U.S. Patent and Trademark Office issued the

The 686 Patent claims an innovative coupler lock that closes around

the socket of an unhitched trailer hitch coupler, as shown in Figure 3 of the patent:

Hitch Coupler

15.

As the 686 Patent explains, the lock blocks a would-be thief from

engaging his vehicles hitch ball with the coupler and towing the trailer away. 16. By assignment from the inventor, Cequent has owned the 686 patent

since it issued and still owns it today. 17. Cequent sells a universal coupler lock that is a commercial

embodiment of the 686 Patent.

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18.

Cequent marks its universal coupler lock with the number of the 686

Patent in accordance with the patent marking statute, 35 U.S.C. 287(a). II. Defendants Infringement Of The 686 Patent 19. Wyers is the founder, owner, President, and decision-maker of

Products Group. 20. In accordance with Wyers directions, Products Group is making or

importing, selling, and offering to sell coupler locks in the United States that are covered by one or more claims of the 686 Patent, including, without limitation, Trimax model nos. UMAX50 and UMAX100, (collectively, the Accused Products). 21. Products Group sells and offers to sell the Accused Products

throughout the United States, including in Michigan, in various ways, including (without limitation) through its online store at www.trimaxlocks.com, through online retailers (such as Amazon.com), through dealers around the United States, and (upon information and belief) through brick-and-mortar retailers. III. The Parties 2004 Encounter 22. In July 2004, through its outside counsel, Cequent sent a letter to

Wyers in which it notified him that Products Groups universal trailer coupler lock (model no. UMAX100) infringed the 686 Patent. 23. In an August 3, 2004 letter, attorney Timothy J. Martin acknowledged

receipt of Cequents July 2004 letter on behalf of Products Group and Wyers, individually. Wyers was copied on Martins letter.

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24.

In his letter, Martin stated that Wyers had a pending patent

application for the UMAX100. Wyers patent application eventually ripened into the 121 Patent, which issued on October 17, 2006. 25. The parties exchanged more correspondence, but litigation did not

ensue until Products Group sued Cequent on October 5, 2012, in the United States District Court for the District of Colorado. That case is entitled Wyers Products Group v. Cequent Performance Products, Inc., Case No. 1:12-cv-02640-REB (the Colorado Action). IV. Products Group Sues Cequent In Colorado, Without Standing 26. In the Colorado Action, Products Group alleged that Cequent infringed

the 115 and 121 Patents. 27. Products Group filed the Colorado Action as the sole plaintiff. Wyers

was not named as a plaintiff because, according to Product Groups amended complaint, the 115 and 121 Patents had been exclusively assigned to Wyers Products by Wyers. (Am. Compl. 5.) 28. On December 13, 2012, Cequent moved to dismiss the amended

complaint in the Colorado Action, in part, because the 115 Patent is entirely invalid as a matter of law based upon the collateral estoppel effect of a decision by the United States Court of Appeals for the Federal Circuit. In that decision, Wyers v. Master Lock Co., the Federal Circuit declared the claims of the 115 Patent invalid as obvious. 616 F.3d 1231 (Fed. Cir. 2010).

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29.

Cequents motion to dismiss also sought to dismiss Products Groups

claim for induced infringement of the 115 Patent for failure to plausibly allege several essential elements of such a claim. 30. 31. Cequents motion to dismiss remains pending. On December 28, 2012, Products Groups attorney e-mailed Cequents

attorney to advise that Products Group would be seeking leave to amend the complaint in the Colorado Action a second time to add Philip Wyers, individually, as a plaintiff. 32. On January 2, 2013, Cequents attorney spoke with Products Groups

attorney about Products Groups desire to add Wyers as a plaintiff. 33. During that call, Products Groups attorney stated that Wyers needs to

be added as a plaintiff because Products Group is Wyers business and he and Products Group enforce Wyers patents together. 34. Products Groups attorney also stated that, although Wyers and

Products Group do not have a written instrument granting an assignment or license of the 115 and 121 Patents to Products Group, Wyers implicitly transferred his rights to those patents to Products Group. 35. In the past, Wyers and Products Group have filed lawsuits asserting

patents, including the 115 Patent, together as co-plaintiffs against other businesses, including Master Lock Company and Valley Industries, Inc. 36. In the Master Lock case, Products Group alleged that it is the

exclusive licensee to the 115 Patent by virtue of an oral license from P. Wyers.

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37. 38.

By statute, a patent assignment must be in writing. Because Products Group does not have a written assignment of the

115 or 121 Patents from Wyers, it has no ownership of the patents it asserts, the district court lacks subject matter jurisdiction over the Colorado Action, and Wyers lacks standing to proceed in that case against Cequenta deficiency that cannot be cured by adding Wyers by amendment. 39. Accordingly, Cequent will be moving to dismiss the entire Colorado

Action for lack of standing. Count One Infringement Of The 686 Patent 40. Cequent incorporates by reference all allegations in all preceding

paragraphs of this complaint as if fully rewritten herein. 41. Each of the Accused Products is covered by one or more claims of the

686 Patent, under any reasonable construction of the patents claim terms. 42. Products Group has directly infringed, and continues to directly

infringe, the 686 patent by making or importing, offering for sale, and selling the Accused Products in the United States. 43. Upon information and belief, Wyers controls the day-to-day operations

of Products Group, and he makes all of the management decisions for the company. 44. Upon information and belief, Wyers is the individual within Products

Group most responsible for, and most involved in, the design, manufacture, marketing, and sales of the Accused Products.

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45.

Upon information and belief, Wyers created and approved of the final

designs of the Accused Products, and he made the final decision that Products Group would continue to sell the Accused Products after receiving Cequents 2004 notice that such sales infringed the 686 Patent. 46. Upon information and belief, Wyers is the sole or majority owner of

Products Group, and thus benefits most from Products Groups infringing sales of the Accused Products. 47. Wyers is personally liable for direct infringement of the 686 Patent

because, upon information and belief, he personally authorized, participated in, directed, and is responsible for the infringing conduct complained of herein. 48. As demonstrated by its product packaging (a true copy of which is

attached as Exhibit B) and its online store advertisements for the Accused Products (a true copy of which is attached as Exhibit C), Products Group markets its Accused Products for one use: as a lock for unhitched trailer couplers. 49. Any use of the Accused Products as a lock for unhitched trailer

couplers is an act of direct infringement of the 686 Patent. 50. Because the sole intended consumer use of the Accused Products is an

infringing use, the Accused Products have no substantial non-infringing uses. 51. Products Group has induced infringement of the 686 Patent because,

with knowledge of the 686 Patent, it induced end users of the Accused Products to use them to lock unhitched trailers couplersa use that infringes the 686 Patent.

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52.

Products Group has contributed to infringement of the 686 Patent by

selling the Accused Products, which have no substantial use other than the infringing use as a lock for unhitched trailer couplers. 53. Wyers has actively induced infringement of the 686 Patent by

directing Products Group to make or import, sell, and offer to sell the Accused Products with knowledge that such actions would infringe the 686 Patent. 54. Defendants infringement of the 686 patent was, and continues to be,

willful and deliberate and, upon information and belief, both will continue their infringing activities unless restrained by this Court. 55. Upon information and belief, Defendants infringement of the 686

patent is exceptional under 35 U.S.C. 285. 56. Upon information and belief, Defendants activities were done with an

intent to, and in fact did allow them to, derive benefit from unauthorized use of Cequents 686 patent. 57. Defendants have enriched themselves, and will continue to enrich

themselves, by their infringing activities. 58. Cequent has been damaged by Defendants infringing activities, and it

will continue to be irreparably injured unless the infringing activities are enjoined by this Court.

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Count Two Declaratory Relief Non-Infringement of the 115 and 121 Patents 59. Cequent incorporates by reference all allegations in all preceding

paragraphs of this Complaint as if fully rewritten herein. 60. Each defendant has accused Cequent of infringing the 115 and 121

Patents through the ongoing sales of existing Cequent products, and each has claimed to have been damaged as a result. 61. Patents. 62. There is a substantial controversy between Cequent and the Cequent has not infringed, and is not infringing, the 115 or 121

Defendants, which have adverse legal interests, regarding Cequents ongoing sale of products vis--vis the 115 and 121 Patents of sufficient immediacy and reality to warrant the issuance of a declaratory judgment of non-infringement. 63. In accordance with the Declaratory Judgment Act, 28 U.S.C. 2201,

Cequent asks the Court to declare that Cequent has not infringed the 115 or 121 Patents. Count Three Declaratory Relief Invalidity of the 115 and 121 Patents 64. Cequent incorporates by reference all allegations in all preceding

paragraphs of this Complaint as if fully rewritten herein.

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65.

Each defendant has accused Cequent of infringing the 115 and 121

Patents through the ongoing sales of existing Cequent products, and each has claimed to have been damaged as a result. 66. The 115 Patent is invalid, and therefore unenforceable against

Cequent, because, among other reasons, the Federal Circuit declared the claims of the 115 Patent that Defendants previously asserted against Master Lock Company as invalid for obviousness in Wyers v. Master Lock Co., 616 F.3d 1231 (Fed. Cir. 2010). The collateral estoppel effect of the Master Lock decision renders invalid all of the claims of the 115 Patent, including the claims that Defendants now accuse Cequent of infringing. 67. The 121 Patent is invalid, and therefore unenforceable against

Cequent, under 35 U.S.C. 102 because, among other reasons, Cequent engineer Tim Vander Koy invented what Wyers claimed to have invented in the 121 Patent before Wyers claims to have done so. 68. There is a substantial controversy between Cequent and the

Defendants, which have adverse legal interests, regarding Cequents ongoing sale of products vis--vis the 115 and 121 Patents of sufficient immediacy and reality to warrant the issuance of a declaratory judgment of invalidity. 69. In accordance with the Declaratory Judgment Act, 28 U.S.C. 2201,

Cequent asks the Court to declare that the 115 and 121 Patents are each invalid and unenforceable against Cequent.

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Prayer for Relief WHEREFORE, Cequent prays for judgment against Defendants as follows: (A) A finding that Defendants have each directly infringed one or more

claims of the 686 Patent under 35 U.S.C. 271(a). (B) A finding that Defendants have each induced infringement of one or

more claims of the 686 Patent under 35 U.S.C. 271(b). (C) A finding that Products Group has contributed to the infringement of

one or more claims of the 686 Patent under 35 U.S.C. 271(c). (D) Preliminary and permanent injunctive relief enjoining Wyers, Products

Group, and its officers, directors, managers, employees, affiliates, agents, representatives, parents, subsidiaries, successors, assigns, those in privity with them, and all others aiding, abetting, or acting in concert or active participation therewith, from: (1) making, using, selling, offering to sell, or importing into the U.S. any device covered by the 686 patent, including Trimax model nos. UMAX50 and UMAX100; or (2) otherwise directly or indirectly infringing the 686 patent. (E) (F) (G) Compensatory damages under 35 U.S.C. 284. Treble damages under 35 U.S.C. 284. An order that Defendants account to Cequent for all sales, revenues,

and profits derived from their infringing activities and that three times those profits be disgorged and paid to Cequent under 35 U.S.C. 284. (H) (I) Attorneys fees under 35 U.S.C. 285. Pre-judgment and post-judgment interest.

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(J) (K)

Costs of the action. A declaration that: (1) Cequent has not infringed the 115 or 121

Patents; and (2) the 115 and 121 Patents are each invalid and thus not enforceable against Cequent. (L) Such other and further relief as allowed at law or in equity that the

Court deems to be appropriate. Dated: January 8, 2013 s/ David B. Cupar David B. Cupar (OH 0071622) Matthew J. Cavanagh (OH 0079522) MCDONALD HOPKINS LLC 600 Superior Avenue, East, Ste. 2100 Cleveland, Ohio 44114 t 216.348.5400 f 216.348.5474 dcupar@mcdonaldhopkins.com mcavanagh@mcdonaldhopkins.com and Timothy J. Lowe (P68669) MCDONALD HOPKINS LLC 39533 Woodward Ave., Suite 318 Bloomfield Hills, Michigan 48304 t 248.646.5070 f 248.646.5075 tlowe@mcdonaldhhopkins.com Counsel for Cequent Performance Products, Inc.

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Jury Demand Plaintiff Cequent Performance Products, Inc. hereby demands a jury trial for all issues so triable. s/ David B. Cupar Counsel for Cequent Performance Products, Inc.

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