1 2 3 4 5 6 7 8 9 10 11 12 13 14 COMPLAINT FOR PATENT INFRINGEMENT 15 16 17 18 19 20 21 22 6,257,007 (the 007 Patent), and 6,185,946 (the 946 Patent) (collectively, the

Patents-in23 24 25 26 COMPLAINT - 1 Case No. 13-cv-1117

FOSTERPEPPERPLLC 1111THIRDAVENUE,SUITE3400 SEATTLE,WASHINGTON981013299 PHONE(206)4474400FAX(206)4479700

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE OPTIMUM ENERGY LLC, Plaintiff, v. KILTECH, INC. and KILTECH PTY LTD, Defendants. ) ) ) ) ) ) ) ) ) )

No. 13-cv-1117 COMPLAINT FOR PATENT INFRINGEMENT JURY DEMAND

Plaintiff Optimum Energy LLC, by and through its attorneys, alleges as follows: NATURE OF THE LAWSUIT 1. This is a civil action arising under the Patent Laws of the United States, Title 35

of the United States Code, particularly including 35 U.S.C. 271 and 281. 2. Plaintiff Optimum requests, among other things, a final injunction against

defendants continuing infringement of United States Patent Nos. 5,946,926 (the 926 Patent),

Suit). True and correct copies of the Patents-in-Suit are attached hereto as Exhibits A through C, respectively.

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THE PARTIES Plaintiff Optimum is a Washington limited liability company with a principal

place of business at 411 First Avenue South, Suite 620, Seattle, WA 98104. 4. On information and belief, defendant Kiltech, Inc. is a corporation organized

under the laws of Quebec, Canada and having a principal place of business at 1840 TransCanada Highway, Dorval, H4P 1H7, Quebec, Canada. 5. On information and belief, defendant Kiltech Pty Ltd is a proprietary company,

limited by shares, organized under the laws of Australia and having a principal place of business at 144 Colchester Road, Bayswater North, Victoria 3153, Australia. JURISDICTION AND VENUE This is an action arising under the Patent Laws of the United States, Title 35 of

the United States Code, particularly including 35 U.S.C. 271, 281, and 284. This Court has jurisdiction under 28 U.S.C. 1331 and 1338(a). 7. The acts and transactions complained of herein were conceived, carried out, made

effective, and had effect within the State of Washington and within this District, among other places. Venue in this District is proper under 28 U.S.C. 1391(b), 1391(c), and 1400(a) because plaintiff Optimum is informed and believes that defendant Kiltech, Inc. and defendant Kiltech Pty Ltd (collectively, the defendants) have committed acts of infringement in the State

21 22 23 24 25 26 COMPLAINT - 2 Case No. 13-cv-1117

FOSTERPEPPERPLLC 1111THIRDAVENUE,SUITE3400 SEATTLE,WASHINGTON981013299 PHONE(206)4474400FAX(206)4479700

of Washington, County of King. Plaintiff Optimum is informed and believes that defendants acts of willful patent infringement arose out of transactions and occurrences in King County. FACTUAL AVERMENTS License and Sale of the Patents-in-Suit from Hartman to Plaintiff Optimum

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8.

In the late 1990s, Thomas Hartman d/b/a The Hartman Company (Hartman)

applied for and obtained patents in methods, systems, and devices that improve the overall efficiency of chilled water cooling systems. These patents, collectively called the LOOP Patents, include the Patents-in-Suit. 9. On or about February 4, 2005, Hartman and Armstrong Pump, Inc. (Armstrong)

entered into a license agreement with respect to the Patents-in-Suit (the Armstrong License Agreement). Pursuant to the Armstrong License Agreement, Armstrong received a limited license to use the Patents-in-Suit. Among other restrictions, Armstrongs license was limited to Factory Implementation of the Patents-in-Suit. 10. On or about November 28, 2005, Hartman and plaintiff Optimum entered into a

license agreement with respect to the Patents-in-Suit and six additional patents (the Optimum 13 14 15 16 17 18 19 20 12. 21 22 23 24 25 26 COMPLAINT - 3 Case No. 13-cv-1117
FOSTERPEPPERPLLC 1111THIRDAVENUE,SUITE3400 SEATTLE,WASHINGTON981013299 PHONE(206)4474400FAX(206)4479700

License Agreement). Pursuant to the Optimum License Agreement, plaintiff Optimum received, among other rights, the exclusive right to Field Implementation of the Patents-in-Suit. 11. Hartman and plaintiff Optimum entered into a Patent Purchase Agreement

(PPA) dated February 9, 2010. In short, through the PPA Hartman sold and assigned to plaintiff Optimum rights to the nine patents that are the subject of the Optimum License Agreement (the three Patents-in-Suit and the six additional patents). The PPA was subsequently the subject of a number of amendments. Amendment

three of the PPA reflected Hartman and plaintiff Optimums decision to proceed with closing on the six additional patents as to which Armstrong does not have any license rights, and delay closing on the three Patents-in-Suit that are subject to the Armstrong License Agreement. 13. On or about May 19, 2010, Hartman and plaintiff Optimum closed on the sale of

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the six additional patents from Hartman to plaintiff Optimum. 14. On or about March 18, 2011, Hartman and plaintiff Optimum closed on the sale

of the three Patents-in-Suit from Hartman to plaintiff Optimum. 15. Agreement. 16. Plaintiff Optimum owns all right, title, interest in and has standing to sue for the Plaintiff Optimum is the successor-in-interest under the Armstrong License

infringement of the three Patents-in-Suit, including for past damages. 17. 18. The Patents-in-Suit are valid and enforceable. Defendants have infringed and continue to infringe the Patents-in-Suit by making,

using, selling, or offering to sell in the United States products, devices or methods known as CPECS (Central Plant Energy Control System) that embody or otherwise practice one or more

13 14 15 16 17 18 19 20 Armstrongs products manufactured under license of the Patents-in-Suit. 21 22 23 24 25 26 COMPLAINT - 4 Case No. 13-cv-1117
FOSTERPEPPERPLLC 1111THIRDAVENUE,SUITE3400 SEATTLE,WASHINGTON981013299 PHONE(206)4474400FAX(206)4479700

of the claims of each of the Patents-in-Suit. 19. Defendants infringing activities are and have been without the authorization of

plaintiff Optimum. 20. Armstrong, as a licensee of the Patents-in-Suit, marks the products that it

manufactures and sells with the patent numbers of each of the Patents-in-Suit. 21. On information and belief, defendants do not sell, or offer to sell, any of

22.

Pursuant to the Armstrong License Agreement, on June 27, 2013, counsel for

Armstrong requested that plaintiff Optimum take appropriate steps to protect Armstrongs rights and interests in the Patents-in-Suit against defendants apparent and potential use, and thus infringement, of the technology embodying the Patents-in-Suit (referred to as Hartman

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LOOP). For example, under Section 5.3 of the Armstrong License Agreement, plaintiff Optimum may enforce any of the Patents-in-Suit against an infringing third party such as defendants. 23. On information and belief, plaintiff Optimum alleges that defendants

infringement of the Patents-in-Suit is and has been willful and deliberate. Due to the intentional nature of defendants acts, this is an exceptional case in which plaintiff Optimum is entitled to treble damages and attorney fees pursuant to 35 U.S.C. 284 and 285. 24. Defendants personnel have a history of copying and misappropriating plaintiff

Optimums methods, practices, patented technology, copyrighted material and business model. Plaintiff Optimum currently has revenue at risk in multiple bids in the U.S. where defendants are in a position to cause plaintiff Optimum great and irreparable injury to, among other things,

13 14 15 16 17 18 19 20 personnel. The primary representative for defendants in these installations, including installations 21 22 23 24 25 26 COMPLAINT - 5 Case No. 13-cv-1117
FOSTERPEPPERPLLC 1111THIRDAVENUE,SUITE3400 SEATTLE,WASHINGTON981013299 PHONE(206)4474400FAX(206)4479700

plaintiff Optimums good will, business reputation, and market share, as a result of these practices. 25. Many of the early installations of the Hartman LOOP technology were in the San

Diego area and involved chillers with Turbocor compressors with Kiltech control panels (for retrofit units and new Smardt chillers). These installations often involved significant interaction between Hartman and defendants technicians and other controls programming and installation

at the San Diego Juvenile Hall, Prometheus Labs, and San Diego County Health Services buildings, was Philip Kennedy, defendants current President and Chief Technology Officer. 26. Plaintiff Optimums first installation of the technology embodying the Patents-in-

Suit (referred to as OptimumLOOP), which was at the San Diego Natural History Museum

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(the Museum Site), included a Smardt Turbocor chiller with a Kiltech control panel. In early 2006, plaintiff Optimum provided documents containing the information required to interface the Kiltech control panel with Optimums control device, called a points list, to defendants personnel. 27. On information and belief, as a result of his close association with plaintiff

Optimum and Hartman in these installations, Mr. Kennedy had access to certain of plaintiff Optimums copyrighted and trade secret information, including plaintiff Optimums points list. 28. For a period of time in 2007, Mr. Kennedy was employed by Mesa Energy

Systems of Irvine, California, an EMCOR Group company (Mesa). During that period, Mesa was a distribution partner for plaintiff Optimum, and Mesa personnel were trained to sell and support OptimumLOOP installations. In this capacity, Mr. Kennedy had access to a variety of

13 14 15 16 17 18 19 20 sales personnel that contained material which had been copied verbatim, without attribution to 21 22 23 24 25 26 COMPLAINT - 6 Case No. 13-cv-1117
FOSTERPEPPERPLLC 1111THIRDAVENUE,SUITE3400 SEATTLE,WASHINGTON981013299 PHONE(206)4474400FAX(206)4479700

technical documents that plaintiff Optimum provides to distribution partners and which are used to integrate the OptimumLOOP with other control devices at the building site. 29. In early 2009, plaintiff Optimum began seeing some of its copyrighted and trade

secret information copied by defendants and/or Smardt, a chiller manufacturer that regularly partners with defendants. 30. In early 2009, plaintiff Optimum learned of a PowerPoint presentation by Smardt

the source, from original materials previously created and published by plaintiff Optimum and/or Hartman. Plaintiff Optimum notified Mr. Kennedy of the apparent copying of these materials. On information and belief, Mr. Kennedy advised Smardt to remove the offending material from the presentation.

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31.

In 2009, defendants began incorporating methods and practices that reflected

those developed and published by plaintiff Optimum in the preceding years relating to customer installations and presentations. For example, the form defendants used to capture information about potential customer sites blatantly copied the form that plaintiff Optimum had published and used. By way of further example, the points list forms defendants used to interface the Kiltech control panel with control devices substantially copied plaintiff Optimums points lists, which were indirectly made available to defendants personnel through a variety of means previously described. 32. Defendants practice of copying plaintiff Optimums materials without

acknowledgement or attribution appears to have continued in 2010 and 2011, but there was limited evidence of commercial activity by defendants during this period.

13 14 15 16 17 18 19 20 infringes numerous claims in the Patents-in-Suit. 21 22 23 24 25 26 COMPLAINT - 7 Case No. 13-cv-1117

FOSTERPEPPERPLLC 1111THIRDAVENUE,SUITE3400 SEATTLE,WASHINGTON981013299 PHONE(206)4474400FAX(206)4479700

33.

From 2012 to present, plaintiff Optimum obtained additional documentation of

defendants specifications for its CPECS product from publically available sources. As a result of defendants increased sales activity in the U.S., and the corresponding increased risk of harm to plaintiff Optimums business model and investments in the Patents-in-Suit and distribution channels, plaintiff Optimum reviewed defendants CPECS product to determine whether it infringed on the Patents-in-Suit. That analysis indicates that defendants CPECS product

COUNT 1 INFRINGEMENT OF U.S. PATENT NO. 5,946,926 34. stated herein. 35. On September 7, 1999, United States Patent No. 5,946,926 (the 926 Patent) Plaintiff Optimum incorporates and realleges the foregoing allegations as if fully

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was issued to Hartman for an invention in a variable flow chilled fluid cooling system. The 926 Patent is assigned to plaintiff Optimum. Plaintiff Optimum owned the 926 Patent throughout the period of defendants infringing acts and still owns the 926 Patent. 36. Defendants have infringed and are still infringing the 926 Patent by making,

selling, and using the CPECS product in conjunction with variable flow chilled fluid cooling systems that embody the patented invention, and defendants will continue to do so unless enjoined by this Court. 37. Plaintiff Optimum and licensee Armstrong have complied with the statutory

requirement of placing a notice of the 926 Patent on all products for control of variable flow chilled fluid cooling systems which embody the Patents-in-Suit and which they manufacture and sell.

13 14 15 16 17 18 19 20 Optimum owned the 007 Patent throughout the period of defendants infringing acts and still 21 22 23 24 25 26 COMPLAINT - 8 Case No. 13-cv-1117
FOSTERPEPPERPLLC 1111THIRDAVENUE,SUITE3400 SEATTLE,WASHINGTON981013299 PHONE(206)4474400FAX(206)4479700

COUNT 2 INFRINGEMENT OF U.S. PATENT NO. 6,257,007 38. stated herein. 39. On July 10, 2001, United States Patent No. 6,257,007 (the 007 Patent) was Plaintiff Optimum incorporates and realleges the foregoing allegations as if fully

issued to Hartman for an invention in a method of control of cooling system condenser fans and cooling tower fans and pumps. The 007 Patent is assigned to plaintiff Optimum. Plaintiff

owns the 007 Patent. 40. Defendants have infringed and are still infringing the 007 Patent by making,

selling, and using the CPECS product to implement methods of control of cooling system condenser fans and cooling tower fans and pumps that embody the patented invention, and

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defendants will continue to do so unless enjoined by this Court. 41. Plaintiff Optimum and licensee Armstrong have complied with the statutory

requirement of placing a notice of the 007 Patent on all products which implement methods of control of cooling system condenser fans and cooling tower fans and pumps which embody the 007 Patent and which they manufacture and sell. COUNT 3 INFRINGEMENT OF U.S. PATENT NO. 6,185,946 42. stated herein. 43. On February 13, 2001, United States Patent No. 6,185,946 (the 946 Patent) Plaintiff Optimum incorporates and realleges the foregoing allegations as if fully

was issued to Hartman for an invention in a system for sequencing chillers in a loop cooling plant and other systems that employ all variable-speed units. The 946 Patent is assigned to

13 14 15 16 17 18 19 20 45. 21 22 23 24 25 26 COMPLAINT - 9 Case No. 13-cv-1117

FOSTERPEPPERPLLC 1111THIRDAVENUE,SUITE3400 SEATTLE,WASHINGTON981013299 PHONE(206)4474400FAX(206)4479700

plaintiff Optimum. Plaintiff Optimum owned the 946 Patent throughout the period of defendants infringing acts and still owns the 946 Patent. 44. Defendants have infringed and are still infringing the 946 Patent by making,

selling, and using the CPECS product to implement systems for sequencing chillers in a loop cooling plant and other systems that employ all variable-speed units that embody the patented invention, and defendants will continue to do so unless enjoined by this Court. Plaintiff Optimum and licensee Armstrong have complied with the statutory

requirement of placing a notice of the 946 Patent on all products which include systems for sequencing chillers in a loop cooling plant and other systems that employ all variable-speed units which embody the 946 Patent and which they manufacture and sell. Therefore, plaintiff Optimum demands:

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(a) (b) (c)

judgment in favor of plaintiff Optimum on all of its claims; a permanent injunction against the continuing infringement; an award of damages adequate to compensate for defendants

infringement but in no event less than a reasonable royalty for the use of the inventions; (d) (e) (f) (g) an award of treble damages pursuant to 35 U.S.C. 284; an award of reasonable attorney fees pursuant to 35 U.S.C. 285; an assessment of prejudgment interest and costs; and such other and further relief as the Court may deem just and proper.

DATED this 28th day of June, 2013. FOSTER PEPPER PLLC /s/ Joel B. Ard Joel B. Ard, WSBA No. 40104 /s/ Janelle Milodragovich Janelle Milodragovich, WSBA No. 43363 1111 Third Avenue, Suite 3400 Seattle, WA 98101-3299 Telephone: (206) 447-4400 Facsimile: (206) 447-9700 ardjb@foster.com miloj@foster.com Attorneys for Plaintiff Optimum Energy LLC

COMPLAINT - 10 Case No. 13-cv-1117

FOSTERPEPPERPLLC 1111THIRDAVENUE,SUITE3400 SEATTLE,WASHINGTON981013299 PHONE(206)4474400FAX(206)4479700

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