1 2 3 4 5 6 7 8 9 10 11 12 Plaintiffs, 13 v.

14 15 16 17 18 19 20 21 22 23 24 25 26 27 COMPLAINT FOR DECLARATORY JUDGMENT 1

DWT 14223818v2 0065716-000007
Davis Wright Tremaine LLP
L AW O FFICE S Suite 2200 1201 Third Avenue
Seattle, Washington 98101-3045

UNITED STATES DISTRICT COURT NORTHWESTERN DIVISION DISTRICT OF NORTH DAKOTA COOPER EQUIPMENT, INC., an Idaho corporation, ENERGY HEATING, LLC, an Idaho limited liability company, and ROCKY MOUNTAIN OILFIELD SERVICES, LLC, an Idaho limited liability company, ) ) ) ) ) ) ) ) ) ) ) ) No. ________________________ COMPLAINT FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT AND INVALIDITY OF U.S. PATENT NO. 5,924,391 JURY TRIAL DEMANDED

ARMSTRONG INTERNATIONAL, INC. a Michigan corporation, Defendant.

Plaintiffs Cooper Equipment, Inc. (Cooper), Energy Heating, LLC (Energy), and Rocky Mountain Oilfield Services, LLC (Rocky Mtn.) ( collectively Plaintiffs), by and through their undersigned counsel, allege as follows for their Complaint against Defendant Armstrong International, Inc. (Armstrong). These allegations are made upon knowledge with respect to Plaintiffs and their own acts, and upon information and belief as to all other matters. I. 1. PARTIES TO THIS ACTION

Plaintiff Cooper is a corporation organized under the laws of the State of Idaho

with its principal place of business located in Burley, Idaho. Cooper is the manufacturer of the portable water heaters accused of infringement as described in paragraph 11 below.

(206) 622-3150 Fax: (206) 757-7700

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

2.

Plaintiff Energy is a limited liability company organized under the laws of the

State of Idaho with its principal place of business located in Burley, Idaho. 3. Plaintiff Rocky Mtn. is a limited liability company organized under the laws of

the State of Idaho with its principal place of business located in Belfield, North Dakota. 4. Energy and Rocky Mtn. are joint venturers with respect to the delivery of

water in North Dakota, using the portable water heaters accused of infringement as described in paragraph 11 below. 5. Defendant Armstrong is a corporation organized and existing under the laws of

the State of Michigan having a principal place of business in Three Rivers, Michigan. II. 6. JURISDICTION AND VENUE

This action arises under the Declaratory Judgment Act, 28 U.S.C. 2201(a)

and 2202, and the U.S. Patent statutes, 35 U.S.C. 101, et seq. An actual and justiciable controversy exists concerning the rights of and legal relationship between Plaintiffs and Armstrong. 7. As a claim arising under the federal patent statutes, this Court has original

subject matter jurisdiction under 28 U.S.C. 1331 and 1338(a). 8. The Court has personal jurisdiction over Defendant Armstrong on at least the

following grounds: a) Armstrong continuously and systematically transacts business within this district, including, without limitation, providing hot water to oil companies through a water depot system within this district; b) Armstrong has purposefully availed itself to the benefits and protections of this States laws; c) Armstrong has purposefully directed its activities at Plaintiffs and this State, and Plaintiffs claims arise out of and are directly related to Armstrongs activities; and COMPLAINT FOR DECLARATORY JUDGMENT 2
DWT 14223818v2 0065716-000007
Davis Wright Tremaine LLP
L AW O FFICE S Suite 2200 1201 Third Avenue
Seattle, Washington 98101-3045

(206) 622-3150 Fax: (206) 757-7700

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 III. 9.

d) This Courts assertion of personal jurisdiction over Armstrong upholds traditional notions of fair play and substantial justice. Venue is proper in this district pursuant to 28 U.S.C. 1391 and 1400(b).

THE PATENT-IN-SUIT AND DEFENDANTS THREAT OF INFRINGEMENT 10. The patent at issue in this matter is U.S. Patent No. 5,924,391 (the 391

patent) issued on July 20, 1999. A copy of the 391 patent is attached hereto as Exhibit 1. 11. On June 5, 2012, through its attorney, Armstrong sent a letter to Rocky Mtn.

accusing Rocky Mtn. of infringing the 391 patent by making, using, and/or selling portable water heaters. A copy of this letter is attached hereto as Exhibit 2. 12. 391 patent. 13. Plaintiffs believe that the portable water heaters made, used, or sold by In the June 5, 2012 letter, Armstrong has represented that it is the owner of the

Plaintiffs do not infringe any valid claim of the 391 patent. 14. Accordingly, an actual and substantial judiciable controversy exists among the

parties concerning whether any of Plaintiffs products has infringed or is infringing any valid claim of the 391 patent. IV. COUNT 1 DECLARATORY JUDGMENT OF INVALIDITY OF THE 391 PATENT 15. Plaintiffs hereby repeat and incorporate by reference the allegations contained

in paragraphs 1 through 14 inclusive. 16. Count 1 is an action under 28 U.S.C. 2201 seeking a declaratory judgment

that the 391 patent is invalid. 17. Upon information and belief, one or more claims of the 391 patent are invalid

under 35 U.S.C. 102, 103 or 112, and/or other provisions of U.S. patent laws, 35 U.S.C. 1 et seq.

COMPLAINT FOR DECLARATORY JUDGMENT 3

DWT 14223818v2 0065716-000007

Davis Wright Tremaine LLP

L AW O FFICE S Suite 2200 1201 Third Avenue
Seattle, Washington 98101-3045

(206) 622-3150 Fax: (206) 757-7700

V. 1 2 3 4 5 6 7 8 9 10 11

COUNT 2 DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE 391 PATENT 18. Plaintiffs hereby repeat and incorporate by reference the allegations contained

in paragraphs 1 through 17 inclusive. 19. Count 2 is an action under 28 U.S.C. 2201 seeking a declaratory judgment

that Plaintiffs have not infringed any valid claim of the 391 patent. 20. The conduct of Armstrong has presented a substantial controversy between the

parties who have adverse legal interests of sufficient immediacy and reality to warrant issuance of a declaratory judgment as to Plaintiffs non-infringement of any valid claim of the 391 patent. VI. JURY TRIAL DEMAND

Plaintiffs hereby demand a trial by jury of all issues so triable. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 COMPLAINT FOR DECLARATORY JUDGMENT 4
DWT 14223818v2 0065716-000007
Davis Wright Tremaine LLP
L AW O FFICE S Suite 2200 1201 Third Avenue
Seattle, Washington 98101-3045

VII.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request the following relief: A. A declaration that Plaintiffs have not infringed, and are not infringing, any

valid and enforceable claim of the 391 patent, either directly or indirectly, literally or under the doctrine of equivalents, and that Plaintiffs have neither contributed to, nor induced infringement thereof by another; B. C. 285; and E. Such other and further relief as this Court may deem just and proper. A declaration that one or more claims of the 391 patent are invalid; An award of costs, including reasonable attorneys fees, pursuant to 35 U.S.C.

(206) 622-3150 Fax: (206) 757-7700

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

DATED this 12th day of July, 2012.

By: /s/ William P. Harrie William P. Harrie, #04411 Nilles Law Firm 1800 Radisson Tower 201 North Fifth Street P.O. Box 2626 Fargo, ND 58108-2626 Tel: 701-237-5544 Fax: 701-280-0762 Email: wharrie@nilleslaw.com F. Ross Boundy, WSBA #403 (pro hac vice pending) Bobby B. Soltani, WSBA #42641(pro hac vice pending) Suite 2200 1201 Third Avenue Seattle, WA 98101-3045 Tel: (206) 622-3150 Fax: (206) 757-7700 Email: rossboundy@dwt.com Email: bobbysoltani@dwt.com Steven V. Gibbons, Esq., WSBA #14028 (pro hac vice pending) Gibbons & Associates, P.S. 901 Fifth Avenue, Suite 4100 Seattle, WA 98164-2001 Tel: (206) 381-3340 Fax: (206) 381-3341 Email: svg@gibbonslawgroup.com Attorneys for Plaintiffs

19 20 21 22 23 24 25 26 27 COMPLAINT FOR DECLARATORY JUDGMENT 5

DWT 14223818v2 0065716-000007
Davis Wright Tremaine LLP
L AW O FFICE S Suite 2200 1201 Third Avenue
Seattle, Washington 98101-3045

(206) 622-3150 Fax: (206) 757-7700