IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA INTERMETRO INDUSTRIES CORPORATION, a Delaware corporation,

Plaintiff, v. ERGOTRON, INC. a Minnesota corporation, Defendant.

COMPLAINT FOR PATENT INFRINGEMENT AND DEMAND FOR JURY TRIAL NOW COMES the Plaintiff, INTERMETRO INDUSTRIES

CORPORATION (InterMetro), by its attorneys HARNESS, DICKEY & PIERCE, PLC, and for its Complaint against ERGOTRON, INC. (Ergotron), states as follows: NATURE OF THE ACTION 1. This is an action for patent infringement under 35 U.S.C. 271, 283,

284 and 285.

THE PARTIES 2. InterMetro is a Delaware corporation having a principal place of

business at 651 N. Washington St., Wilkes-Barre, PA 18705. 3. On information and belief, Ergotron is a Minnesota corporation

having a place of business at 1811 Trapp Road, Saint Paul, MN 55121. JURISDICTION AND VENUE 4. This Court has subject matter jurisdiction over this matter pursuant to

28 U.S.C. 1331 and 1338(a). 5. This Court has personal jurisdiction over Ergotron because Ergotron

has transacted business in Pennsylvania by offering for sale and selling point-of-care carts in Pennsylvania, among other products, that InterMetro alleges infringe its patents. See Fed. R. Civ. P. 4(h) and 42 PA. CONS. STAT. 5322(a). 6. This Court also has personal jurisdiction over Ergotron because

Ergotron has in the past and continues to cause harm to InterMetro in Pennsylvania as a result of acts it has and continues to commit both inside and outside of Pennsylvania. See Fed. R. Civ. P. 4(h) and 42 PA. CONS. STAT. 5322(a). 7. Venue over Ergotron is proper in this judicial district under 28 U.S.C.

1391(d) and 1400(b).

FACTUAL BACKGROUND 8. On December 10, 2002, the United States Patent and Trademark

Office (Patent Office) issued United States Patent No. 6,493,220 entitled Mobile Clinical Workstation (the 220 patent). A copy of the 220 patent is attached to this Complaint as Exhibit 1. 9. On December 20, 2002, EMS Technologies Inc. (EMS), an

InterMetro predecessor-in-interest to point-of-care cart technology embodied in the 220 patent, issued a news release announcing that the Patent Office awarded the 220 patent. The release stated: This patent describes the essential features of the cart-based form factor in a workstation, which is equipped with a computer and power supply, and is connected wirelessly to a local area network by WiFi access points. [We] developed the technology for cart-based systems, which allow healthcare providers to realize the full benefits of clinical point-of-care applications as the way to improve patient safety with a device that is easy to use. The patent on the Mobile Clinical Workstation protects the flagship product of our Healthcare Solutions Group, which has established the industry-standard form factor and created a leading position in this growing market for wireless technology. See Exhibit 2. 10. Over the next decade, EMS and subsequent owners of the point-of-

care-cart technology, including InterMetro, pursued additional patents on the technology through Patent Office continuation practice.

11.

Their efforts resulted in the Patent Office awarding U.S. Patent Nos.

6,721,178 (the 178 patent); 7,009,840 (the 840 patent); 7,612,999 (the 999 patent); 7,791,866 (the 866 patent); 7,990,691 (the 691 patent); and 8,526,176 (the 176 patent). See Exhibits 3 and 5-9, respectively. 12. patent. 13. The next day, the Atlanta Business Chronicle published an article On February 10, 2003, EMS sued a competitor for infringing the 220

about the lawsuit. The article quoted EMSs Heathcare Solutions Group Director: We are quite determined to enforce our patent rights, and to require other providers of point-of-care carts to either develop their own unique products, or pay reasonable compensation to EMS for the use of technology that we created. See Exhibit 10. 14. EMSs enforcement activities further included issuing press releases

and publishing product brochures with notice of its patents. 15. Moreover, EMS marked its point-of-care carts with its patent

numbers; approached competitors at trade shows to inform them of its patents; and sent letters to competitors offering an opportunity to license its patent rights. 16. EMSs actions resulted in multiple lawsuits that resolved on terms

which included the infringers paying undisclosed amounts to license the patents, and acknowledging the validity and enforceability of the patents. See Exhibit 11.

17.

In February 2005, Flo Healthcare Solutions, L.L.C. (Flo), a

successor-in-interest to EMSs point-of-care-cart technology, including the related patents and patent applications, sent notice letters to competitors in the point-ofcare-cart market, including Rioux Vision, Inc. (Rioux Vision) and Ergotron, among others. See Exhibits 12 and 13. 18. The letters offered an opportunity to license both the 220 and 178

patents, they enclosed copies of the patents, and they pointed out that other competitors were licensed under the patents. 19. patent. 20. On March 21, 2008, the Court granted Flo summary judgment that On October 26, 2006, Flo sued Rioux Vision for infringing the 178

Rioux Visions point-of-care carts infringed numerous claims of the 178 patent. 21. On December 8, 2008, Flo sued Omnicell, Inc. (Omnicell), for

infringing the 178 patent. 22. On September 30, 2009, Flo assigned InterMetro the entire right, title

and interest to the point-of-care cart technology, including the related patents and patent applications. 23. The written assignment expressly granted InterMetro the exclusive

right to seek and obtain all remedies available at law (including money damages) and in equity for any past, present and future infringement of the patent properties.

24.

In September 2010, InterMetro settled the lawsuits against Rioux

Vision and Omnicell, including granting them a license to the patents. 25. Three years before, on September 20, 2007, Rioux Vision filed a

Petition for Inter Partes Reexamination of the 178 patent with the Patent Office. 26. On February 15, 2013, the Patent Office issued a reexamination

certificate for the 178 patent that confirmed the patentability of claims 2-6, 18-22, 27-33, 39, 43, 44, as well as the patentability of newly added claims 45-130. A copy of the Inter Partes Reexamination Certificate for the 178 patent is attached to this Complaint as Exhibit 4. 27. Since the 220 patent issued on December 10, 2002, InterMetro and

its predecessors have continuously marked their point-of-care carts with the 220 patent and related patents. 28. Competitors in the point-of-care-cart market have long been on notice

of InterMetros patents for the point-of-care-cart technology and its intent to enforce these patents. COUNT I INFRINGEMENT OF U.S. PATENT NO. 6,493,220 29. 30. 220 patent. InterMetro restates the allegations contained in paragraphs 1-28. On December 10, 2002, the Patent Office duly and lawfully issued the

31.

InterMetro owns the 220 patent, along with the right to bring suit and

recover damages for past, present and future infringement of the 220 patent. 32. Ergotron has in the past and/or currently is directly infringing the

claims of the 220 patent under 35 U.S.C. 271(a) by making, using, offering for sale and selling, without InterMetros authority, point-of-care carts that embody one or more of the 220 patent claims. 33. By way of example and not limitation, Ergotron has in the past and/or

currently is making, using, offering for sale and selling StyleView point-of-care carts that directly infringe at least claims 12 and 15 of the 220 patent, among other carts and claims. See, e.g., Exhibits 14 - 16. 34. Ergotron has in the past and/or currently is inducing and contributing

to the direct infringement of the 220 patent claims in violation of 35 U.S.C. 271(b) and (c), by making, using, offering for sale and selling, without InterMetros authority, point-of-care carts with knowledge of the 220 patent and its claims; knowing that others, including customers and users of its point-of-care carts, will use the carts in an infringing manner; knowing that its point-of-care carts are a material part of the invention claimed in the 220 patent; knowing that its point-of-care carts are especially made or especially adapted for use in an infringement of the 220 patent; and knowing that its point-of-care carts are not

staple articles or commodities of commerce that are suitable for substantial noninfringing use. 35. By way of example and not limitation, Ergotron has in the past and/or

currently is making, using, offering for sale and selling StyleView point-of-care carts that its customers use to directly infringe at least claims 12 and 15 of the 220 patent, among other carts and claims. See, e.g., Exhibits 14 - 16. 36. Ergotrons marketing materials extoll the benefits of its point-of-care See, e.g., Exhibits 14 - 21.

carts having a computing device and display.

Moreover, Ergotron describes the point-of-care carts as accommodating multiple configurations [of computing devices], including open notebooks, closed notebooks with monitor, CPU and monitor, thin clients, tablets and all-in-one computers. See Exhibits 15 and 16. 37. The benefits Ergotron touts in its marketing materials for its point-of-

care carts could not be realized without using a computing device and display with the carts. 38. 39. Ergotrons point-of-care carts have no substantial non-infringing use. In view of the facts alleged herein, Ergotron has known of the 220

patent, or has been willfully blind to the 220 patents existence, since at least 2005. 40. Ergotrons infringing activities have been willful and deliberate.

41.

Ergotrons infringing activities are directly and proximately causing

immediate and irreparable injury to InterMetro for which InterMetro has no adequate remedy at law. 42. Ergotron will continue its infringing activities unless enjoined from

doing so by the Court. 43. Ergotrons infringing activities have and continue to directly and

proximately cause damages to InterMetro. COUNT II INFRINGEMENT OF U.S. PATENT NO. 6,721,178 44. 45. InterMetro restates the allegations contained in paragraphs 1-43. On April 13, 2004, the Patent Office duly and lawfully issued the 178

patent. Exhibit 3. 46. On February 15, 2013, the Patent Office issued a reexamination

certificate for the 178 patent, confirming the patentability of claims 2-6, 18-22, 27-33, 39, 43 and 44, as well as the patentability of newly added claims 45-130. Exhibit 4. 47. InterMetro owns the 178 patent, along with the right to bring suit and

recover damages for past, present and future infringement of the 178 patent. 48. Ergotron has in the past and/or currently is directly infringing the

claims of the 178 patent under 35 U.S.C. 271(a) by making, using, offering for

sale and selling, without InterMetros authority, point-of-care carts that embody one or more of the 178 patent claims. 49. By way of example and not limitation, Ergotron has in the past and/or

currently is making, using, offering for sale and selling StyleView point-of-care carts that directly infringe at least claim 2 of the 178 patent, among other carts and claims. See, e.g., Exhibits 14 - 20. 50. Ergotron has in the past and/or currently is inducing and contributing

to the direct infringement of the 178 patent claims in violation of 35 U.S.C. 271(b) and (c), by making, using, offering for sale and selling, without InterMetros authority, point-of-care carts with knowledge of the 178 patent and its claims; knowing that others, including customers and users of its point-of-care carts, will use the carts in an infringing manner; knowing that its point-of-care carts are a material part of the invention claimed in the 178 patent; knowing that its point-of-care carts are especially made or especially adapted for use in an infringement of the 178 patent; and knowing that its point-of-care carts are not staple articles or commodities of commerce that are suitable for substantial noninfringing use. 51. By way of example and not limitation, Ergotron has in the past and/or

currently is making, using, offering for sale and selling StyleView point-of-care

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carts that its customers use to directly infringe at least claim 2 of the 178 patent, among other carts and claims. See, e.g., Exhibits 14 - 20. 52. Ergotrons marketing materials extoll the benefits of its point-of-care See, e.g., Exhibits 14 - 20.

carts having a computing device and display.

Moreover, Ergotron describes the point-of-care carts as accommodating multiple configurations [of computing devices], including open notebooks, closed notebooks with monitor, CPU and monitor, thin clients, tablets and all-in-one computers. See Exhibits 15 and 16. 53. The benefits Ergotron touts in its marketing materials for its point-of-

care carts could not be realized without using a computing device and display with the cart. 54. 55. Ergotrons point-of-care carts have no substantial non-infringing use. In view of the facts alleged herein, Ergotron has known of the 178

patent, or has been willfully blind to the 178 patents existence, since at least 2005. 56. 57. Ergotrons infringing activities have been willful and deliberate. Ergotrons infringing activities are directly and proximately causing

immediate and irreparable injury to InterMetro for which InterMetro has no adequate remedy at law.

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58.

Ergotron will continue its infringing activities unless enjoined from

doing so by the Court. 59. Ergotrons infringing activities have and continue to directly and

proximately cause damages to InterMetro. COUNT III INFRINGEMENT OF U.S. PATENT NO. 7,990,691 60. 61. InterMetro restates the allegations contained in paragraphs 1-59. On August 2, 2011, the Patent Office duly and lawfully issued the

691 patent. Exhibit 8. 62. InterMetro owns the 691 patent, along with all rights to bring suit and

recover damages for past, present and future infringement of the 691 patent. 63. Ergotron has in the past and/or currently is directly infringing the

claims of the 691 patent under 35 U.S.C. 271(a) by making, using, offering for sale and selling, without InterMetros authority, point-of-care carts that embody one or more of the 691 patent claims. 64. By way of example and not limitation, Ergotron has in the past and/or

currently is making, using, offering for sale and selling StyleView point-of-care carts that directly infringe at least claims 1, 16, 25 and 33 of the 691 patent. See, e.g., Exhibits 18 - 20. 65. By way of further example and not limitation, Ergotron has in the past

and/or currently is making, using, offering for sale and selling StyleView

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telepresence carts that directly infringe at least claims 1, 5 and 6 of the 691 patent. See, e.g., Exhibit 21. 66. Ergotron has in the past and/or currently is inducing and contributing

to the direct infringement of the 691 patent claims in violation of 35 U.S.C. 271(b) and (c), by making, using, offering for sale and selling, without InterMetros authority, point-of-care carts with knowledge of the 691 patent and its claims; knowing that others, including customers and users of its point-of-care carts, will use the carts in an infringing manner; knowing that its point-of-care carts are a material part of the invention claimed in the 691 patent; knowing that its point-of-care carts are especially made or especially adapted for use in an infringement the claims of the 691 patent; and knowing that its point-of-care carts are not staple articles or commodities of commerce that are suitable for substantial non-infringing use. 67. By way of example and not limitation, Ergotron has in the past and/or

currently is making, using, offering for sale and selling StyleView point-of-care carts that its customers use to directly infringe at least claims 1, 16, 25 and 33 of the 691 patent. See, e.g., Exhibits 18 - 20. 68. By way of further example and not limitation, Ergotron has in the past

and/or currently is making, using, offering for sale and selling StyleView

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telepresence carts that its customers use to directly infringe at least claims 1, 5 and 6 of the 691 patent. See, e.g., Exhibit 21. 69. Ergotrons marketing materials extoll the benefits of its point-of-care See, e.g., Exhibits 14 - 21.

carts having a computing device and display.

Moreover, Ergotron describes the point-of-care carts as accommodating multiple configurations [of computing devices], including open notebooks, closed notebooks with monitor, CPU and monitor, thin clients, tablets and all-in-one computers. See Exhibits 15 and 16. 70. The benefits Ergotron touts in its marketing materials for its point-of-

care carts could not be realized without using a computing device and display with the cart. 71. Ergotrons point-of-care carts and telepresence carts have no

substantial non-infringing use. 72. In view of the facts alleged herein, Ergotron has known of the 691

patent, or has been willfully blind to the 691 patents existence, since at least 2011. 73. 74. Ergotrons infringing activities have been willful and deliberate. Ergotrons infringing activities are directly and proximately causing

immediate and irreparable injury to InterMetro for which InterMetro has no adequate remedy at law.

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75.

Ergotron will continue its infringing activities unless enjoined from

doing so by the Court. 76. Ergotrons infringing activities have and continue to directly and

proximately cause damages to InterMetro. COUNT IV INFRINGEMENT OF U.S. PATENT NO. 8,526,176 77. 78. InterMetro restates the allegations contained in paragraphs 1-76. On September 3, 2013, the Patent Office duly and lawfully issued the

176 patent. Exhibit 9. 79. InterMetro owns the 176 patent, along with all rights to bring suit and

recover damages for past, present and future infringement of the 176 patent. 80. Ergotron has in the past and/or currently is directly infringing the

claims of the 176 patent under 35 U.S.C. 271(a) by making, using, offering for sale and selling, without InterMetros authority, point-of-care carts that embody one or more of the 176 patent claims. 81. By way of example and not limitation, Ergotron has in the past and/or

currently is making, using, offering for sale and selling StyleView point-of-care carts and telepresence carts that directly infringe at least claims 8 and 15 of the 176 patent. See, e.g., Exhibits 20 and 21. 82. Ergotron has in the past and/or currently is inducing and contributing

to the direct infringement of the 176 patent claims in violation of 35 U.S.C.

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271(b) and (c), by making, using, offering for sale and selling, without InterMetros authority, point-of-care carts with knowledge of the 176 patent and its claims; knowing that others, including customers and users of its point-of-care carts, will use the carts in an infringing manner; knowing that its point-of-care carts are a material part of the invention claimed in the 176 patent; knowing that its point-of-care carts are especially made or especially adapted for use in an infringement of the 176 patent; and knowing that its point-of-care carts are not staple articles or commodities of commerce that are suitable for substantial noninfringing use. 83. By way of example and not limitation, Ergotron has in the past and/or

currently is making, using, offering for sale and selling StyleView point-of-care carts and telepresence carts that its customers use to directly infringe at least claims 8 and 15 of the 176 patent, among other carts and claims. See, e.g., Exhibits 20 and 21. 84. Ergotrons marketing materials extoll the benefits of its point-of-care See, e.g., Exhibits 14 - 21.

carts having a computing device and display.

Moreover, Ergotron describes the point-of-care carts as accommodating multiple configurations [of computing devices], including open notebooks, closed notebooks with monitor, CPU and monitor, thin clients, tablets and all-in-one computers. See Exhibits 15 and 16.

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85.

The benefits Ergotron touts in its marketing materials for its point-of-

care carts could not be realized without using a computing device and display with the cart. 86. Ergotrons point-of-care carts and telepresence carts have no

substantial non-infringing use. 87. In view of the facts alleged herein, Ergotron has known of the 176

patent, or has been willfully blind to the 176 patents existence, since at least 2013. 88. 89. Ergotrons infringing activities have been willful and deliberate. Ergotrons infringing activities are directly and proximately causing

immediate and irreparable injury to InterMetro for which InterMetro has no adequate remedy at law. 90. Ergotron will continue its infringing activities unless enjoined from

doing so by the Court. 91. Ergotrons infringing activities have and continue to directly and

proximately cause damages to InterMetro. PRAYER FOR RELIEF WHEREFORE, InterMetro Industries Corporation prays that this Court:

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A.

Enter judgment for InterMetro against Ergotron declaring that it has

willfully infringed U.S. Patent Nos. 6,493,220; 6,721,178; 7,990,691; and 8,526,176; B. Permanently enjoin and restrain Ergotron, its agents, servants,

employees, partners, attorneys, successors and assigns, and all those acting in concert with it from infringing, either directly, by inducement or contributorily, U.S. Patent Nos. 6,493,220; 6,721,178; 7,990,691; and 8,526,176; C. Enter an Order requiring Ergotron to file with this Court and to serve

upon InterMetro or InterMetros counsel, within thirty (30) days after the entry and service of any injunction issued, a report in writing and under oath setting forth in detail the manner and form in which it has complied with the injunction; D. Require Ergotron post an appropriate bond and Order any other

appropriate relief to assure compliance with any injunctive provision or other provision Ordered by the Court; E. Enter an Order directing Ergotron and its agents, servants, employees,

partners, attorneys, successors and assigns, and all those acting in concert with it, to deliver to this Court or to InterMetro for destruction, or show proof of said destruction, of all infringing products; F. Order an equitable accounting to determine the profits of and other

sums Ergotron derived from the complained-of patent infringement and other

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wrongful acts, and that such amount be paid over to InterMetro as an equitable remedy; G. Award to InterMetro all damages it has sustained as a result of the

Ergotrons patent infringement and order that said damages be trebled in accordance with 35 U.S.C. 284; H. Enter judgment declaring that this case is exceptional and that

InterMetro is entitled to recover its costs and reasonable attorneys fees incurred in this action, pursuant to 35 U.S.C. 285; and I. Enter judgment granting such other and further relief and damages to

InterMetro as justice and equity may require. JURY DEMAND InterMetro Industries Corporation hereby requests a trial by jury of all issues so triable. Respectfully submitted, DATED: November 22, 2013 By: s/ Dale M. Heist Dale M. Heist, PA23314 John Frank Murphy, PA206307 WOODCOCK WASHBURN LLP Cira Centre, 12th Floor 2929 Arch Street Philadelphia, PA 19104 (215) 568-3100 (215) 564-3439 (fax) dheist@woodcock.com jmurphy@woodcock.com intermetro@woodcock.com
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OF COUNSEL Glenn E. Forbis, PA263218, MIP52119 George D. Moustakas, MIP41631 Neal D. Sanborn, MIP75725 HARNESS, DICKEY & PIERCE, PLC 5445 Corporate Drive, Suite 400 Troy, Michigan 48098 (248) 641-1400 (248) 641-0270 (fax) gforbis@hdp.com gmoustakas@hdp.com nsanborn@hdp.com

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