UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION Electronically Filed SSW HOLDING COMPANY, INC.

, 3501 South Tulsa Ft. Smith, AR 72906 Plaintiff, Civil Action No.: v. SCHOTT GEMTRON CORPORATION, 615 Highway 68 Sweetwater, TN 37874, Serve: Corporation Service Company 2908 Poston Ave Nashville, TN 37203-1312, Defendant. COMPLAINT FOR PATENT INFRINGEMENT DEMAND FOR JURY TRIAL
3-12-cv-661-S

For its Complaint against Schott Gemtron Corporation (Gemtron), Plaintiff SSW Holding Company, Inc. (SSW) alleges as follows:

THE PARTIES 1. Plaintiff SSW is a Delaware corporation having its corporate address

at 3501 South Tulsa, Ft. Smith, Sebastian County, Arkansas 72906. 2. SSW is a provider of shelving components to original equipment

manufacturers of appliances, including spill-proof refrigerator shelving. As a

direct result of its substantial research and development efforts, SSW has developed their spill-proof shelving technology for which SSW has received extraordinary commercial recognition. 3. SSW is the exclusive supplier of refrigerator shelving components

incorporating SSWs patented (as described more fully below) spill-proof shelving technology to Whirlpool Corporation (Whirlpool) for use in Whirlpool refrigerators, including Whirlpool side-by-side refrigerator models. With the

commercial success of SSWs spill-proof shelving technology, SSW has sought and is currently seeking to expand to other refrigerator manufacturers and to other Whirlpool refrigerator models, including but not limited to Whirlpools French door refrigerator models. 4. On information and belief, Defendant Gemtron is a Tennessee

corporation having its principal place of business at 615 Highway 68, Sweetwater, Monroe County, Tennessee 37874. 5. On information and belief, Gemtron is in the business of providing

fabricated components to appliance OEMs. As relevant here, Gemtron has, on information and belief, provided or has offered to provide at least Whirlpool with spill-proof shelving components incorporating SSWs patented spill-proof technology, including but not limited to the following parts numbers: W10467425, W10467466, W10467426, W10487646. On information and belief, Gemtron is offering or will be offering to Whirlpool, as well as to other manufacturers, additional spill-proof shelving components for appliance products that incorporate SSWs patented spill-proof technology. The foregoing spillproof shelving components are collectively referred to herein as Gemtron SpillProof Shelving Components. 6. On information and belief, Gemtron has provided or offered to

provide Whirlpool with Gemtron Spill-Proof Shelving Components for use in at 2

least Whirlpools French door refrigerator models.

And on information and

belief, Gemtron has offered to provide or is planning to provide Gemtron SpillProof Shelving Components for use in connection with other Whirlpool products and/or products manufactured by other appliance manufacturers. Gemtrons

conduct has undercut SSWs position as the exclusive provider of refrigerator shelving components incorporating SSWs patented spill-proof shelving technology to Whirlpool, and has hampered SSWs ability to provide such refrigerator shelving components to Whirlpool and to other manufacturers.

JURISDICTION AND VENUE 7. Plaintiff incorporates herein by reference the allegations set forth in

paragraphs 1-6 of the Complaint as though fully set forth herein. 8. This is a civil action for patent infringement arising under the Patent

Act of the United States, 35 U.S.C. 1 et seq. This court has subject matter jurisdiction of such federal question claims pursuant to 28 U.S.C. 1331 and 1338(a). 9. Venue is proper under 28 U.S.C. 1391(b), 1391(c) and 1400(b) in

that the acts and transactions complained of herein were conceived, carried out, made effective, and had effect within the State of Kentucky and within this district, among other places. SSW has a manufacturing facility in Elizabethtown, Kentucky, within both this judicial district and the Louisville jury division. Gemtron resides in this judicial district by virtue of its business activities in this district and have committed acts of infringement in this judicial district.

U.S. PATENT NO. 8,286,561 10. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1-9 of the Complaint as though fully set forth herein. 3

11. On October 16, 2012, the United States Patent & Trademark Office duly and legally issued United States Letters Patent No. 8,286,561 (the 561 Patent), entitled Spill Containing Refrigerator Shelf Assembly. The disclosure of this patent is incorporated herein by reference. 12. SSW is the owner of all right, title, and interest in the 561 Patent. 13. The 561 Patent claims, among other things, spill-containing refrigerator shelf assemblies, and methods of manufacturing such shelving assemblies. In certain of the claimed embodiments, the shelving assemblies

comprise a shelf panel having a generally flat top surface for supporting articles thereon, and a hydrophobic surface applied in a spill containment pattern on the top surface, the hydrophobic surface being applied such that one or more nonhydrophobic central portions are bounded by the spill containment pattern. 14. On April 29, 2010, the USPTO duly and legally published United States Patent Publication No. 2010/0102693 (the 693 PGPUB). The disclosure of the 693 PGPUB is incorporated herein by reference. The application of the 693 PGPUB issued as the 561 Patent and the 693 PGPUB includes claims that are substantially identical to the claims of the 561 Patent.

FIRST CLAIM FOR RELIEF (INFRINGEMENT OF U.S. PATENT NO. 8,286,561) 15. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1-14 of the Complaint as though fully set forth herein. 16. On information and belief, Gemtron makes, uses, sells, offers for sale and/or distributes Gemtron Spill-Proof Shelving Components. The Gemtron

Spill-Proof Shelving Components generally include among other things - a shelf panel having a generally flat top surface for supporting articles thereon, and a hydrophobic surface applied in a spill containment pattern on the top surface, the 4

hydrophobic surface being applied such that one or more non-hydrophobic central portions are bounded by the spill containment pattern. 17. By making, using, selling, offering for sale and/or distributing Gemtron Spill-Proof Shelving Components, Defendant Gemtron has directly infringed and continues to directly infringe the 561 Patent, including infringement under 35 U.S.C. 271(a) and (f). 18. On information and belief, Defendant Gemtron has also indirectly infringed and continues to indirectly infringe the 561 Patent, including infringement under 35 U.S.C. 271(b), by actively inducing direct infringement by others who manufacture home appliances using Gemtron Spill-Proof Shelving Components when Gemtron had knowledge of the 561 Patent and knew or should have known that their actions would induce direct infringement by others and intended that their actions would induce direct infringement by others. 19. On information and belief, Gemtron has also indirectly infringed and continues to indirectly infringe the 561 Patent by contributory infringement, including infringement under 35 U.S.C. 271(c), by providing non-staple articles of commerce to others for use in an infringing apparatus and/or method with knowledge of the 561 Patent and knowledge that these non-staple articles of commerce are used as a material part of the claimed invention of the 561 Patent. 20. On information and belief, Gemtron will continue to infringe the 561 Patent unless enjoined by this Court. 21. On information and belief, Gemtrons infringement of the 561 Patent is, has been, and continues to be willful and deliberate. For example, SSW gave notice to Gemtron at least as early as May 25, 2011 of SSWs intellectual property rights in SSWs now-patented spill-proof technology and provided Gemtron a copy of the 693 PGPUB. SSW not only notified Gemtron of SSWs pending intellectual property rights in Gemtrons hydrophobic-type shelving 5

products, but also warned Gemtron that SSW would actively protect those rights from unauthorized infringement. While Gemtron responded to SSW on July 11, 2011, Gemtron declined to address SSWs concerns, stating only that SSWs pending intellectual property rights as reflected in the 693 PGPUB did not present a viable concern to Schott Gemtron, particularly given that they have not issued as patents. Since that date, Gemtron has continued to manufacture, sell, and offer for sale products that incorporate and therefore infringe upon SSW patented spill-proof technology as embodied in the 561 patent. 22. As a direct and proximate result of Gemtrons infringement of the

561 Patent, SSW has been and continues to be damaged in an amount yet to be determined. 23. Unless a preliminary and permanent injunction are issued enjoining Gemtron and its officers, agents, servants and employees, and all others acting on their behalf or in concert with Gemtron, from infringing the 561 Patent, SSW will be greatly and irreparably harmed.

SECOND CLAIM FOR RELIEF (INFRINGEMENT OF PROVISIONAL RIGHTS) 24. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1-23 of the Complaint as though fully set forth herein. 25. On information and belief, Defendant Gemtron has made, used, sold,

offered for sale, and/or distributed Gemtron Spill-Proof Shelving Components during the period of publication of the 693 PGPUB to the issuance of the 561 Patent. 26. By making, using, selling, and offering for sale and/or distributing

the Gemtron Spill-Proof Shelving Components, Defendant Gemtron has infringed

the provisional rights in the 561 Patent, including infringement under 35 U.S.C. 154(d). 27. On information and belief, Gemtron had actual knowledge of the

693 PGPUB, its specification and claims at least as early as May 25, 2011.

PRAYER FOR RELIEF WHEREFORE, Plaintiff SSW prays for judgment against Defendant Gemtron as follows: (1) For a judicial determination and declaration that Defendant Gemtron

has directly infringed, and continues to directly infringe, United States Letters Patent No. 8,286,561; (2) For a judicial determination and declaration that Defendant Gemtron

has induced, and continues to induce, the infringement of United States Letters Patent No. 8,286,561; (3) For a judicial determination and declaration that Defendant Gemtron

has contributorily infringed, and continues to contributorily infringe, United States Letters Patent No. 8,286,561; (4) For a judicial determination and decree that Defendant Gemtrons

infringement of United States Letters Patent No. 8,286,561 has been, and continues to be, willful and deliberate; (5) For a judicial determination and decree that Defendant Gemtron has

infringed SSWs provisional rights in United States Letters Patent No. 8,286,561; (6) For a judicial determination and decree that Defendant Gemtron, its

respective subsidiaries, officers, agents, servants, employees, licensees, and all other persons or entities acting or attempting to act in active concert or participation with it or acting on its behalf, be preliminarily and permanently enjoined from further infringement of United States Letters Patent No. 8,286,561; 7

(7)

For a declaration that Gemtron notify all of its customers and users of

the infringing products and processes of the customers participation in the infringement with Gemtrons encouragement, and that Gemtron encourages customers to cease all such infringing actions; (8) For a judicial decree that orders Defendant Gemtron to account for

and pay to SSW all damages caused to SSW by reason of Defendant Gemtrons infringement pursuant to 35 U.S.C. 284, including enhanced damages under 35 U.S.C. 285; (9) For an award of damages according to proof at trial;

(10) For an award of a reasonable royalty pursuant to 35 U.S.C. 154(d); (11) For a judicial declaration that this case is exceptional under 35 U.S.C. 285 and Defendant Gemtron be ordered to pay SSW costs, expenses, and reasonable attorneys fees pursuant to 35 U.S.C. 284 and 285; (12) For a judicial order awarding to SSW pre-judgment and postjudgment interest on the damages caused to it by Defendant Gemtrons infringement; and (13) For any such other and further relief as the Court may deem just and proper under the circumstances.

DEMAND FOR JURY TRIAL Plaintiff hereby demands a jury trial pursuant to Rule 38 of the Federal Rules of Civil Procedure as to all issues in this lawsuit.

Dated: October 16, 2012

Respectfully submitted, FROST BROWN TODD LLC /s/ Thomas P. OBrien III Thomas P. O'Brien, III tobrien@fbtlaw.com Cory J. Skolnick cskolnick@fbtlaw.com Frost Brown Todd LLC 400 West Market Street Suite 3200 Louisville, Kentucky 40202-3363 Telephone: (502) 589-5400 Facsimile: (502) 581-1087 -andONE LLP Nathaniel L. Dilger (CA Bar No. 196203) ndilger@onellp.com [to be admitted PHV] Peter Afrasiabi (CA Bar No. 193336) pafrasiabi@onellp.com [to be admitted PHV] Kainoa Asuega (CA Bar No. 279463) kasuega@onellp.com [to be admitted PHV] 4000 MacArthur Boulevard West Tower, Suite 1100 Newport Beach, California 92660 Telephone: (949) 502-2870 Facsimile: (949) 258-5081 Attorneys for Plaintiff SSW Holding Company, Inc.,

LOULibrary 0125603.0600122 1317975v1