UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ) ) ) ) Case No. v.

) ) Judge ULTIMATE BODY PRESS, INC., ) a North Carolina corporation, ) Defendant. ) _____________________________________________________________________________ COMPLAINT FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT ______________________________________________________________________________ NOW COMES plaintiff, BLACK MOUNTAIN PRODUCTS, INC. (Black Mountain), and complains against the above-named defendant, ULTIMATE BODY PRESS, INC. (Ultimate Body), as follows: Parties 1. Black Mountain is incorporated under the laws of the State of Illinois, and is in good standing. Black Mountains principal place of business at 481 Scotland Rd., Unit 102 Lakemoor, Illinois. 2. On information and belief, defendant, Ultimate Body is a North Carolina corporation with its principal place of business at 3217 Grey Leaf Drive, Wilmington, North Carolina. Nature of the Action 3. This is a declaratory judgment action seeking a determination that Black Mountain does not infringe any valid or enforceable claim of Patent No. 7,651,449 ( the Subject Patent), which on information and belief, is owned by Ultimate Body. A true copy of the 449 patent is attached as Exhibit A. BLACK MOUNTAIN PRODUCTS, INC. an Illinois corporation, Plaintiff,

Jurisdiction and Venue 4. This is a complaint for declaratory relief under the patent laws of the United States, 35 U.S.C. 1, et. seq. 5. Black Mountain seeks declaratory relief under 28 U.S.C. 2201 and 2202. 6. This Court has jurisdiction over the subject matter of this action under 28 U.S.C. 1331, 1338, 2201 and 2202. 7. Venue is also proper in this judicial district pursuant to 28 U.S.C. 1391(b) and 1391(c) since a substantial part of the events giving rise to the claim occurred in this district and Ultimate Body does or has done business in this district and is subject to personal jurisdiction in this district. This Court has personal jurisdiction over Ultimate Body since Ultimate Body has advertised and actively promoted its business nationally, including without exclusion to the residents in the Northern District of Illinois, in particular by actively advertising and making sales on its company internet website at http://www.ultimatebodypress.com and otherwise, including sales to customers in this judicial district. The Substantial Controversy Between the Parties 8. On October 17, 2013, R. Brian Johnson (counsel for defendant) sent a letter (Exhibit B) to Mr. Daniel Borak of Black Mountain alleging infringement of the 449 patent. 9. On October 22, 2013, Julie Kirby (counsel for Black Mountain) sent a response letter to R. Brian Johnson (Exhibit C) asserting multiple reasons for non-infringement. No response was received to this letter until R. Brian Johnson sent a letter on December 16, 2013 (Exhibit D) indicating that a patent infringement lawsuit would be filed against Black Mountain and asking whether counsel for Black Mountain would accept service of process. -2-

10. Counsel for the parties had a back and forth email exchange and ultimately a call on January 2, 2014 regarding the Subject Patent and the alleged infringement thereof. In that call, counsel for Black Mountain again asserted clear grounds for non-infringement and referred to existing prosecution-history estoppel which even more firmly established non-infringement. Such defenses were further elaborated upon in a January 2, 2014 letter from Julie Kirby to R. Brian Johnson (Exhibit E) inviting an end to the matter. 11. In response to such letter however, counsel for Ultimate Body gave further indications that a patent infringement action is intended. 12. Black Mountain has not infringed and does not infringe, either directly or indirectly, any valid and enforceable claim of the Subject Patent. 13. By virtue of the foregoing, a substantial controversy exists between the parties that is of sufficient immediacy and reality to warrant declaratory relief. COUNT I - DECLARATORY JUDGMENT OF NON-INFRINGEMENT 14. Paragraphs 1-13 are realleged and incorporated by reference as if fully set forth herein. 15. Black Mountain is entitled to a declaratory judgment that it has not infringed and does not infringe, directly or indirectly, any valid and enforceable claim of the 449 patent. COUNT II - EXCEPTIONAL CASE 16. Paragraphs 1-15 are realleged and incorporated by reference as if fully set forth herein.

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17. There are clear grounds for non-infringement and such non-infringement is further bolstered by clear prosecution-history estoppel foreclosing any claim against Black Mountain and its product. 18. Black Mountain carefully and thoroughly informed Ultimate Body and its counsel of such clear grounds for non-infringement, including, clear prosecution-history estoppel foreclosing any claim against Black Mountain and its product. Nevertheless, Ultimate Body indicated an intention to proceed with patent infringement litigation against Black Mountain. 19. In view of all of the above, this is an exceptional case under 35 U.S.C. 285.

Prayer for Relief WHEREFORE, Plaintiff, Black Mountain, prays for the following relief: A. A declaration that Black Mountain has not infringed, either directly or indirectly, any valid and enforceable claim of the 449 patent; B. A finding that this case is exceptional within the meaning of 35 U.S.C. 285 and ordering defendant to pay Black Mountain its reasonable attorneys fees; C. Awarding Black Mountain its full costs and expenses in bringing this action; and D. Ordering such other and further relief as this Court deems just and proper. Dated this 3rd day of January, 2014.

Respectfully submitted, BLACK MOUNTAIN PRODUCTS, INC.

By

s/Peter N. Jansson Peter N. Jansson (IL Bar #1326074)

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Peter N. Jansson E-Mail: pjansson@janlaw.com Molly H. McKinley E-Mail: mmckinley@janlaw.com JANSSON MUNGER MCKINLEY & SHAPE LTD. 245 Main Street Racine, WI 53403 Tel: 262/632-6900 Fax: 262/632-2257

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