UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN OUT RAGE LLC, Plaintiff, v.

NEW ARCHERY PRODUCTS CORPORATION, Defendant. Civil Action No. 3:13-CV-240 JURY TRIAL DEMANDED

COMPLAINT Plaintiff Out RAGE LLC files this Complaint against Defendant New Archery Products Corporation: NATURE OF THE ACTION 1. This is an action for infringement of U.S. Patent No. RE 44,144 (the 144

patent), which is directed to an expandable broadhead. THE PARTIES 2. Out RAGE LLC (Out RAGE) is a limited-liability company organized and

existing under the laws of the State of Delaware, with its principal place of business located at 110 Beasley Road, Cartersville, Georgia 30120. 3. New Archery Products Corporation (NAP) is a corporation organized and

existing under the laws of the State of Illinois, with its principal place of business located at 7500 Industrial Drive, Forest Park, Illinois 60130. JURISDICTION 4. This is a civil action for patent infringement arising under the patent laws of the

United States. See, e.g., 35 U.S.C. 271, 281-285. 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 NAP.

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NAP has conducted and continues to conduct business in the State of Wisconsin

and in this judicial district. NAP, directly and/or through third parties, makes or assembles devices that fall within one or more claims of the 144 patent (the NAP Infringing Devices) and that are and have been offered for sale, sold, purchased, and used within this judicial district. NAP also has engaged in, and is currently engaging in, litigation before this Court, submitting itself to the jurisdiction of this Court. 7. NAP, directly or through intermediaries (including distributors, retailers, and

others), ships, distributes, offers for sale, sells, and advertises the NAP Infringing Devices in this judicial district. For example, NAP has purposefully and voluntarily sold one or more of the NAP Infringing Devices to consumers in this judicial district via the website http://www.newarchery.com. The NAP Infringing Devices have been and continue to be purchased by consumers in this judicial district. Additionally, NAP, directly and/or through distribution networks, regularly places the NAP Infringing Devices within the stream of commerce, with the knowledge and/or understanding that such products will be sold in this judicial district and, on information and belief, such products have, in fact, been sold to consumers by retailers located within this district. NAP has committed acts of patent infringement within the State of Wisconsin and, more particularly, within the Western District of Wisconsin. NAP has purposefully availed itself of the benefits of the State of Wisconsin and the exercise of jurisdiction over NAP would not offend traditional notions of fair play and substantial justice. VENUE 8. Venue is proper in this judicial district under 28 U.S.C. 1391(b) and 1400(b),

because acts and transactions constituting at least a subset of the violations alleged herein occurred in this judicial district and because NAP conducts business in this judicial district. Venue is also proper in this judicial district under 28 U.S.C. 1391(c) because NAP is subject to personal jurisdiction in this district.

THE NAP INFRINGING DEVICES 9. Broadheads). 10. The NAP Accused Broadheads include, without limitation: (1) broadheads sold NAP makes, uses, offers to sell, sells, and/or imports into the United States

broadheads having blades that expand upon striking and entering a target (the NAP Accused

under the Bloodrunner designation, including Bloodrunner II, Bloodrunner 3, and Bloodrunner D6 (collectively, the Bloodrunner Broadheads); and (2) broadheads sold under the Killzone designation, including Killzone Maxx, Killzone Low KE, Killzone Crossbow, and Killzone D6 (collectively, the Killzone Broadheads). THE 144 PATENT 11. On April 9, 2013, the 144 patent was duly and legally reissued by the U.S. Patent

& Trademark Office (the Patent Office) from U.S. Patent Application 11/823,458 (the 144 application). A copy of the official Issue Notification from the Patent Office, identifying the patent number and issue date of the 144 patent, is attached hereto as Exhibit A. The 144 patent is incorporated herein by reference. 12. The 144 patent is a reissue of U.S. Patent No. 6,910,979 (the 979 patent), which

duly and legally issued on June 28, 2005. 13. 14. patent. NAPS INFRINGEMENT OF THE 144 PATENT 15. NAP is liable for direct infringement of one or more of the claims of the 144 The 144 patent is valid and enforceable. Out RAGE is the owner of the 144 patent and has the right to enforce the 144

patent under 35 U.S.C. 271(a), because it has made, used, sold, offered for sale, and/or imported into the United States the NAP Accused Broadheads. 16. NAP is liable for indirect infringement of the 144 patent under 35 U.S.C.

271(b), because it has knowingly induced the direct infringement of one or more of the claims of the 144 patent by end-users.

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End-users directly infringe one or more of the claims of the 144 patent by using

the NAP Accused Broadheads. 18. NAP has taken active steps to induce end-users to engage in direct infringement

of the claims of the 144 patent. For example, NAP provides end-users with instructions and information regarding the use of the NAP Accused Broadheads on packaging, NAPs website, and print media. 19. NAP had knowledge of the claims of the 144 patent and possessed specific intent

to induce infringement of the claims of the 144 patent by end-users. 20. NAP was aware of the patent applications leading to the 979 patent. For example,

Bruce Barrie told Robert Mizek (Vice President of Engineering at NAP) at the January 2001 archery trade show that he had filed for patent protection on the rearwardly deploying Snyper broadhead. On January 30, 2001, Robert Mizek sent Bruce Barrie an email stating: Please get me a copy of the patent when it issues and we can discuss some sort of arrangement if NAP would like to manufacture a broadhead covered by the patent. 21. NAP was aware of the 979 patent after it issued. For example, on January 10,

2006, Robert Mizek sent Bruce Barrie an email with the subject Rage broadhead that requested to discuss a licensing arrangement for a potential NAP rearwardly deploying broadhead. 22. NAP was aware of the pending application for the reissue of the 979 patent as the

144 patent. For example, on July 22, 2011, Andy Simo (President of NAP) sent the CEO of Out RAGE a letter demanding a royalty-free license to Out RAGEs intellectual property, including the 979 patent, which Andy Simo acknowledged was pending as a Reissue Patent Application. 23. On September 14, 2011, Andy Simo sent the CEO of Out RAGE an email with the

subject line 979 patent in the interest of resolving a potentially serious patent conflict. Andy Simo indicated that NAP wishes to bring to market a new broadhead and that NAP would challenge the validity of the patent if Out RAGE did not grant NAP a royalty-free license.

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On September 22, 2011, Andy Simo sent the CEO of Out RAGE a proposed

royalty-free license agreement. The agreement defined the licensed technology to include, among other things, the 979 patent and the reissue application. 25. NAP has attempted to delay or prevent the reissuance of the 144 patent. For

example, on January 31, 2012, NAP filed a Protest regarding the 144 application in the Patent Office. NAP has also attempted to interfere in the reissue proceedings, for example, by sending alleged prior art to the attorneys prosecuting the 144 application so as to trigger disclosure of additional, and in some cases irrelevant, materials. 26. NAPs attempts to prevent reissuance of the 144 patent were unsuccessful. On

February 5, 2013, the Patent Office confirmed allowability of the claims of the 144 patent. 27. On information and belief, NAP has actively followed the progress of the 144

application by monitoring the Patent Offices Patent Application Information Retrieval (PAIR) website, which is accessible to the general public. Thus, NAP has known that the 144 patent would issue since approximately February 5, 2013, when the Patent Office issued a Notice of Allowance for the 144 patent. 28. NAP knew or should have known that making, using, offering to sell, selling,

and/or importing into the United States the NAP Accused Broadheads would constitute infringement of the 144 patent, based on, among other things, communications between Out RAGE and NAP and the Patent Offices confirmation of the validity of the 144 patent claims during the reissue proceedings. 29. NAP has knowingly taken active steps to induce end-users to engage in direct

infringement of the claims of the 144 patent and has done so with an affirmative intent to cause such direct infringement and/or with purposeful, culpable expression and conduct to encourage such direct infringement. NAPs specific intent to induce infringement is evidenced by, among other things, NAPs providing of instructions and information to end-users knowing that its acts would induce end-users to use the NAP Accused Broadheads and to directly infringe the claims of the 144 patent. 30. In the alternative, NAP has taken the active steps described above with deliberate

indifference of a known risk that end-users directly infringe the claims of the 144 patent.

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NAP has continued to make, use, offer for sale, sell, and/or import into the United

States the NAP Accused Broadheads despite an objectively high likelihood that its actions constituted infringement of a valid patent. The objectively high likelihood that NAPs actions constituted infringement of a valid patent is based on, among other things, the prosecution history of the 144 patent and communications between Out RAGE and NAP regarding the 144 patent. 32. The risk that NAPs actions constituted infringement of a valid patent was either

known to NAP or was so obvious that it should have been known to NAP, and NAPs potential defenses to such infringement are objectively baseless. NAPs continued infringement of the 144 patent is therefore willful. COUNT ONE: INFRINGEMENT OF THE 144 PATENT 33. herein. 34. NAP has infringed and/or continues to infringe one or more claims of the 144 Out RAGE incorporates the foregoing paragraphs by reference as if fully set forth

patent as set forth above. NAP is liable for direct infringement of the 144 patent pursuant to 35 U.S.C. 271(a) and inducement of infringement of the 144 patent pursuant to 35 U.S.C. 271(b). 35. Out RAGE has suffered damage by reason of NAPs infringement and will

continue to suffer additional damage unless and until this Court enjoins the infringing conduct. 36. On information and belief, NAP intends to continue its infringing activities after

receiving notice of the 144 patent, thus making such infringement willful and entitling Out RAGE to the recovery of increased damages under 35 U.S.C. 284. 37. NAPs actions with regard to the 144 patent make this an exceptional case

justifying an award of attorneys fees and costs to Out RAGE under 35 U.S.C. 285. 38. Out RAGE believes that NAP will continue to infringe the 144 patent unless

enjoined by this Court. Such infringing activity causes Out RAGE irreparable harm and will continue to cause such harm without the issuance of an injunction.

DEMAND FOR JURY TRIAL 39. Out RAGE hereby demands a jury trial on all issues so triable. PRAYER Out RAGE requests that the Court find in Out RAGEs favor and against NAP, and that the Court grant the following relief: A. NAP; B. Judgment for the full amount of actual damages caused to Out RAGE by NAPs Judgment that one or more of the claims of the 144 patent have been infringed by

infringing activities, including an assessment of interest and costs; C. D. Judgment for increased damages for willful infringement under 35 U.S.C. 284; Judgment that NAP be preliminarily and permanently enjoined from further

activity or conduct that infringes the claims of the 144 patent; E. Judgment that Out RAGE be awarded costs, together with reasonable attorneys

fees and all other expenses for this suit, because this case is exceptional under 35 U.S.C. 285; F. Judgment that Out RAGE be awarded costs, together with reasonable attorneys

fees and all other expenses for this suit, under 28 U.S.C. 2202, the Federal Rules of Civil Procedure, and any other applicable federal and state laws; and G. Judgment that Out RAGE may recover any and all other relief as is just and

proper under the circumstances.

DATE: April 9, 2013

Respectfully Submitted, /s/ R. Jason Fowler Kevin B. Collins* (kcollins@cov.com) Jay I. Alexander* (jalexander@cov.com) R. Jason Fowler* (jfowler@cov.com) Alexander A. Berengaut* (aberengaut@cov.com) Emily S. Ullman* (eullman@cov.com) COVINGTON & BURLING LLP 1201 Pennsylvania Avenue, NW Washington, DC 20004-2401 Telephone: (202) 662-6000 Facsimile: (202) 662-6291 * motion for pro hac vice admission pending Catherine Cetrangolo (cetrangolo@cetralaw.com) CETRA LAW FIRM LLC 20 North Carroll Street Madison, WI 53703 Telephone: (608) 535-9220 Counsel for Out RAGE LLC

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