Cequent Performance Products v. Wyers Products Group Et. Al.

Case 1:13-cv-02976-MSK Document 2 Filed 10/31/13 USDC Colorado Page 1 of 40 2:13-cv-10065-AJT-PJK Doc # 1 Filed 01/08/13 Pg 1 of 16 Pg ID 1
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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11
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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12
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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13
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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14
(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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Case 1:13-cv-02976-MSK Document 2 Filed 10/31/13 USDC Colorado Page 17 of 40 2:13-cv-10065-AJT-PJK Doc # 1-1 Filed 01/08/13 Pg 1 of 10 Pg ID 17
Exhibit A
Exhibit B
Exhibit C
1/8/13
Case 1:13-cv-02976-MSK Document 2 Filed 10/31/13 USDC Colorado Page 31 of 40 UMAX 50 Universal Trailer 01/08/13 Lock 2:13-cv-10065-AJT-PJK Doc Unattended # 1-3 Filed Pg 2 of 5 Pg ID 31
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Items in cart: 0
Current Total: $0.00
| HOME PAGE | FREQUENTLY ASKED Q'S | FULL LIFETIME WARRANTY | PRODUCT INSTRUCTIONS | TESTIMONIALS | PRIVACY | CONTACT US | ABOUT US |
ADJUSTABLE TOW H ITCH ES TOW BALLS RECEIV ER LOCKIN G PIN S N ON - LOCKIN G RECEIV ER PIN S UN IV ERSAL UN ATTEN DED COUPLER LOCKS COUPLER LEV ER LOCKS KEYED- ALIKE RECEIV ER & COUPLER LOCK SETS SPARE TIRE LOCKS MULTI- USE CABLE LOCK SYSTEMS ULTRA- MAX U LOCKS MOTORCYCLE ROTOR / DISC LOCKS ULTRA- MAX CH AIN LOCKS ALARM LOCKS MAGN UM PADLOCKS & DOOR LOCKS SPECIALTY LOCKS WH EEL LOCKS Bugzook a KEYS
UMAX 50 Universal Unattended Trailer Lock

UNIVERSAL die cast dual purpose coupler lock (fits ALL couplers). Sku # Our Price
Qty
: UMAX50 : $39.99
: 1
Product Detail
UNIVERSAL die cast dual purpose coupler lock (fits ALL couplers).
Normally ships same business day or next business day. Call us for expedited shipping. The UMAX 50 features a rugged corrosion resistant finish. Provides instant security for your camper, boat or trailer when they are not hooked up to your vehicle. Features 1/2 turn technology that cannot be false locked. For dual force security add a TRIMAX chain or cable secured to an anchor point! Also, add a TRIMAX coupler lever lock for additional protection. Easy Installation. Slide ball up into coupler and replace u-shackle. Fits all of the following couplers and more... 1 7/8" or 2" Fulton Atwood 2" UFP Bulldog 2 5/16" couplers Fulton Heavy Duty Surge Brake (Reverse Mount)
trimaxlocks.com/_e//UMAX_50_Universal_Unattended_Trailer_Lock.htm
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1/8/13
Case 1:13-cv-02976-MSK Document 2 Filed 10/31/13 USDC Colorado Page 32 of 40 UMAX 50 Universal Trailer 01/08/13 Lock 2:13-cv-10065-AJT-PJK Doc Unattended # 1-3 Filed Pg 3 of 5 Pg ID 32
One size fits all (from 1 7/8", 2", to 2 5/16", all coupler types) Key hole cover slides up to seal out dirt and grime Type A key w hich is a spring loaded, 7 pin, high security key. Resists attempted drill outs. Rugged and durable, the key w ill not bend or break.
Specifications: LIFETIME WARRANTY Huge 6 tooth, 3/8" dual ratchet locking system Hardened 5/8" 16mm steel shackle
TRIMAX makes the worlds toughest locks. Through value added engineering design, TRIMAX is committed to product innovation that holds up to the highest quality standards. TRIMAX provides maximum security for marine, trailer and tow, RV, performance truck, power sports and bicycle applications. Tested. Tough. TRIMAX. TRIMAX offers a lifetime warranty on all of their products.
Average Customer Review:

Sort by : 0 of 0 people found the following review helpful: Review Reviewer: George L.
Based on 1 Reviews.
Most Recent Date
[Write Review]
March, 2011
Just purchased this lock at my local RV dealer. Installs quickly. I love the added protection that it gives versus a standard padlock that I was using before. Great product. I highly recommend. George Was this review helpful to you? [Yes] [No]
| HOM E PAGE | FREQUENTLY ASKED Q'S | FULL LIFETIM E WARRANTY | PRODUCT INSTRUCTIONS | TESTIM ONIALS | PRIVACY | CONTACT US | ABOUT US |
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1/8/13
Case 1:13-cv-02976-MSK Document 2 Filed 10/31/13 USDC Colorado Page 33 of 40 UMAX 100 Universal Unattended Trailer01/08/13 Lock 2:13-cv-10065-AJT-PJK Doc # 1-3 Filed Pg 4 of 5 Pg ID 33
GO
Items in cart: 0
Current Total: $0.00
| HOME PAGE | FREQUENTLY ASKED Q'S | FULL LIFETIME WARRANTY | PRODUCT INSTRUCTIONS | TESTIMONIALS | PRIVACY | CONTACT US | ABOUT US |
ADJUSTABLE TOW H ITCH ES TOW BALLS RECEIV ER LOCKIN G PIN S N ON - LOCKIN G RECEIV ER PIN S UN IV ERSAL UN ATTEN DED COUPLER LOCKS COUPLER LEV ER LOCKS KEYED- ALIKE RECEIV ER & COUPLER LOCK SETS SPARE TIRE LOCKS MULTI- USE CABLE LOCK SYSTEMS ULTRA- MAX U LOCKS MOTORCYCLE ROTOR / DISC LOCKS ULTRA- MAX CH AIN LOCKS ALARM LOCKS MAGN UM PADLOCKS & DOOR LOCKS SPECIALTY LOCKS WH EEL LOCKS Bugzook a KEYS
UMAX 100 Universal Unattended Trailer Lock

Premium UNIVERSAL 360 degrees of "solid hardened steel" dual purpose coupler lock (fits ALL couplers). Sku # Our Price
Qty
: UMAX100 : $79.95
: 1
Product Detail
Premium UNIVERSAL 360 degrees of "solid hardened steel" dual purpose coupler lock (fits ALL couplers).
Normally ships same business day or next business day. Call us for expedited shipping. The UMAX 100 features an exclusive design that provides 360 degrees of hardened steel protection for your unattended trailer. Provides instant security for your camper, boat or trailer when they are not hooked up to your vehicle. Features 1/2 turn technology that cannot be false locked. For dual force security add a TRIMAX chain or cable secured to an anchor point! Also, add a TRIMAX coupler lever lock for additional protection. Easy Installation. Slide ball up into coupler and replace u-shackle. Fits all of the following couplers and more... 1 7/8" or 2" Fulton Atwood 2" UFP Bulldog 2 5/16" couplers Fulton Heavy Duty Surge Brake (Reverse Mount)
One size fits all (from 1 7/8", 2", to 2 5/16", all coupler types) Key hole cover slides up to seal out dirt and grime Attractive ballistic grade nylon housing absorbs hammer blows and protects against weather
1/2
1/8/13
Case 1:13-cv-02976-MSK Document 2 Filed 10/31/13 USDC Colorado Page 34 of 40 UMAX 100 Universal Unattended Trailer01/08/13 Lock 2:13-cv-10065-AJT-PJK Doc # 1-3 Filed Pg 5 of 5 Pg ID 34
Type A key which is a spring loaded, 7 pin, high security key. Resists attempted drill outs. Rugged and durable, the key will not bend or break. Specifications: LIFETIME WARRANTY Weighs 6 pounds Huge 6 tooth, 3/8" dual ratchet locking system Hardened 5/8" 16mm steel shackle
TRIMAX makes the worlds toughest locks. Through value added engineering design, TRIMAX is committed to product innovation that holds up to the highest quality standards. TRIMAX provides maximum security for marine, trailer and tow, RV, performance truck, power sports and bicycle applications. Tested. Tough. TRIMAX. TRIMAX offers a lifetime warranty on all of their products.
| HOM E PAGE | FREQUENTLY ASKED Q'S | FULL LIFETIM E WARRANTY | PRODUCT INSTRUCTIONS | TESTIM ONIALS | PRIVACY | CONTACT US | ABOUT US |
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JS 44
Case 1:13-cv-02976-MSK Document 2 Filed 10/31/13 USDC Colorado Page 35 of 40 2:13-cv-10065-AJT-PJK Doc # 1-4 Filed 01/08/13 Pg 1 of 2 Pg ID 35 (Rev. 09/11) Wayne County in which action arose __________________
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
Cequent Performance Products, Inc. (b) County of Residence of First Listed Plaintiff Wayne, Michigan
(EXCEPT IN U.S. PLAINTIFF CASES)
DEFENDANTS Wyers Products Group, Inc., and Philip W. Wyers

County of Residence of First Listed Defendant
NOTE:
Arapahoe, Colorado
(IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
Attorneys (Firm Name, Address, and Telephone Number) David B. Cupar, McDonald Hopkins LLC, 600 Superior Ave.,
(c)
Aaron Bradford, Lathrop & Gage, 950 17th

Attorneys (If Known)
St., Ste. 2400, Denver, CO 80202, t 720.931.3200
East, Ste. 2100, Cleveland, Ohio 44114, t 216.348.5400
II. BASIS OF JURISDICTION

1 U.S. Government Plaintiff
(Place an X in One Box Only)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff)

(For Diversity Cases Only) PTF Citizen of This State 1 DEF 1 and One Box for Defendant) PTF DEF Incorporated or Principal Place 4 4 of Business In This State 5
X3
Federal Question (U.S. Government Not a Party)
U.S. Government Defendant
4 Diversity (Indicate Citizenship of Parties in Item III)
Citizen of Another State
Incorporated and Principal Place of Business In Another State Foreign Nation
Citizen or Subject of a Foreign Country
IV. NATURE OF SUIT

CONTRACT 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veterans Benefits 160 Stockholders Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property
(Place an X in One Box Only) TORTS PERSONAL INJURY PERSONAL INJURY 310 Airplane 365 Personal Injury 315 Airplane Product Product Liability Liability 367 Health Care/ 320 Assault, Libel & Pharmaceutical Slander Personal Injury 330 Federal Employers Product Liability Liability 368 Asbestos Personal 340 Marine Injury Product 345 Marine Product Liability Liability PERSONAL PROPERTY 350 Motor Vehicle 370 Other Fraud 355 Motor Vehicle 371 Truth in Lending Product Liability 380 Other Personal 360 Other Personal Property Damage Injury 385 Property Damage 362 Personal Injury Product Liability Med. Malpractice CIVIL RIGHTS PRISONER PETITIONS 440 Other Civil Rights 510 Motions to Vacate 441 Voting Sentence 442 Employment Habeas Corpus: 443 Housing/ 530 General Accommodations 535 Death Penalty 445 Amer. w/Disabilities 540 Mandamus & Other Employment 550 Civil Rights 446 Amer. w/Disabilities 555 Prison Condition Other 560 Civil Detainee 448 Education Conditions of Confinement
FORFEITURE/PENALTY 625 Drug Related Seizure of Property 21 USC 881 690 Other
BANKRUPTCY 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157 PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
X
LABOR 710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 740 Railway Labor Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act
FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff or Defendant) 871 IRSThird Party 26 USC 7609
OTHER STATUTES 375 False Claims Act 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/ Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes
IMMIGRATION 462 Naturalization Application 463 Habeas Corpus Alien Detainee (Prisoner Petition) 465 Other Immigration Actions
V. ORIGIN X 1 Original
Proceeding
(Place an X in One Box Only)
Transferred from 2 Removed from 3 Remanded from 4 Reinstated or 5 another district 6 Multidistrict State Court Appellate Court Litigation Reopened (specify) Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
VI. CAUSE OF ACTION VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S) IF ANY
DATE
35 USC 281
Brief description of cause:
Patent infringement and declaratory judgment action

DEMAND $ CHECK YES only if demanded in complaint: JURY DEMAND:
CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

(See instructions):
X Yes
No
JUDGE
Robert E. Blackburn
U.S. Dist. of Colorado, DOCKET NUMBER Case No. 1:12-cv-2640
SIGNATURE OF ATTORNEY OF RECORD
January 8, 2013
FOR OFFICE USE ONLY RECEIPT # AMOUNT
s/ David B. Cupar
APPLYING IFP JUDGE MAG. JUDGE
PURSUANT TO LOCAL RULE 83.11

1.
Is this a case that has been previously dismissed? If yes, give the following information: Court: Case No.: Judge:
Yes X No
2.
Other than stated above, are there any pending or previously discontinued or dismissed companion cases in this or any other court, including state court? (Companion cases are matters in which it appears substantially similar evidence will be offered or the same or related parties are present and the cases arise out of the same transaction or occurrence.) If yes, give the following information: Court: U.S. Dist. Court for District of Colorado 1:12-cv-02640-REB
X Yes No
Case No.:
Judge: Robert E. Blackburn The Colorado case should be dismissed and not proceed because the sole plaintiff in that case, Wyers Products Group, lacks standing Notes : due to lack of ownership of the patents it asserts in that action.
AO 440 (Rev. 12/09) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
Eastern District of Michigan
Cequent Performance Products, Inc.,

Plaintiff,
v.
Wyers Products Group, Inc., and Philip W. Wyers

Defendant.
) ) ) ) ) ) ) ) ) )
Civil Action No. 2:13-cv-10065
Hon.
SUMMONS IN A CIVIL ACTION To:
Philip W. Wyers 14705 East Aberdeen Avenue Centennial, Colorado 80016

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney, whose name and address are:
If you fail to respond, judgment by default may be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.
DAVID J. WEAVER, CLERK OF COURT
By:
Signature of Clerk or Deputy Clerk
Date of Issuance:
Summons and Complaint Return of Service

Case No. Hon. A copy of the Summons and Complaint has been served in the manner indicated below: Name of Party Served: Date of Service:
Method of Service
Personally served at this address:
Left copies at the usual place of abode with (name of person):
Other (specify):
Returned unexecuted (reason):
Service Fees:
Travel $
Service $
Total $
Declaration of Server
I declare under the penalty of perjury that the information contained in this Return of Service is true and correct. Name of Server: Signature of Server: Date: Servers Address:
UNITED STATES DISTRICT COURT

for the
Eastern District of Michigan
Cequent Performance Products, Inc.,

Plaintiff,
v.
Wyers Products Group, Inc., and Philip W. Wyers

Defendant.
) ) ) ) ) ) ) ) ) )
Civil Action No. 2:13-cv-10065
Hon.
SUMMONS IN A CIVIL ACTION To:
Wyers Products Group, Inc. 6770 South Dawson Circle, Ste. 200 Centennial, Colorado 80112
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney, whose name and address are:
If you fail to respond, judgment by default may be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.
DAVID J. WEAVER, CLERK OF COURT
By:
Signature of Clerk or Deputy Clerk
Date of Issuance:
Summons and Complaint Return of Service

Case No. Hon. A copy of the Summons and Complaint has been served in the manner indicated below: Name of Party Served: Date of Service:
Method of Service
Personally served at this address:
Left copies at the usual place of abode with (name of person):
Other (specify):
Returned unexecuted (reason):
Service Fees:
Travel $
Service $
Total $
Declaration of Server
I declare under the penalty of perjury that the information contained in this Return of Service is true and correct. Name of Server: Signature of Server: Date: Servers Address:

Cequent Performance Products v. Wyers Products Group Et. Al.

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Case 1:13-cv-02976-MSK Document 2 Filed 10/31/13 USDC Colorado Page 1 of 40 2:13-cv-10065-AJT-PJK Doc # 1 Filed 01/08/13 Pg 1 of 16 Pg ID 1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Case No. 2:13-cv-10065 Judge

Demand For Jury Trial

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

13. 686 Patent. 14.

embodiment of the 686 Patent.

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

Cequents motion to dismiss also sought to dismiss Products Groups

Products Group has contributed to infringement of the 686 Patent by

paragraphs of this Complaint as if fully rewritten herein.

Current Total: $0.00

UMAX 50 Universal Unattended Trailer Lock

Average Customer Review:

Current Total: $0.00

UMAX 100 Universal Unattended Trailer Lock

CIVIL COVER SHEET

DEFENDANTS Wyers Products Group, Inc., and Philip W. Wyers

Aaron Bradford, Lathrop & Gage, 950 17th

St., Ste. 2400, Denver, CO 80202, t 720.931.3200

East, Ste. 2100, Cleveland, Ohio 44114, t 216.348.5400

II. BASIS OF JURISDICTION

(Place an X in One Box Only)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff)

Federal Question (U.S. Government Not a Party)

U.S. Government Defendant

4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

Incorporated and Principal Place of Business In Another State Foreign Nation

Citizen or Subject of a Foreign Country

IV. NATURE OF SUIT

(Place an X in One Box Only)

Brief description of cause:

Patent infringement and declaratory judgment action

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

U.S. Dist. of Colorado, DOCKET NUMBER Case No. 1:12-cv-2640

SIGNATURE OF ATTORNEY OF RECORD

PURSUANT TO LOCAL RULE 83.11

UNITED STATES DISTRICT COURT

Eastern District of Michigan

Cequent Performance Products, Inc.,

Wyers Products Group, Inc., and Philip W. Wyers

Civil Action No. 2:13-cv-10065

SUMMONS IN A CIVIL ACTION To:

Philip W. Wyers 14705 East Aberdeen Avenue Centennial, Colorado 80016

DAVID J. WEAVER, CLERK OF COURT

Summons and Complaint Return of Service

Left copies at the usual place of abode with (name of person):

Returned unexecuted (reason):

UNITED STATES DISTRICT COURT

Eastern District of Michigan

Cequent Performance Products, Inc.,

Wyers Products Group, Inc., and Philip W. Wyers

Civil Action No. 2:13-cv-10065

SUMMONS IN A CIVIL ACTION To:

DAVID J. WEAVER, CLERK OF COURT

Summons and Complaint Return of Service

Left copies at the usual place of abode with (name of person):

Returned unexecuted (reason):

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