IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

-----------------------------------------------------------------S.A.S. of Luxemburg, Ltd.
|
133 Center Drive Hwy 54
|
Luxemburg, WI 54217
|
Plaintiff,
|
v.
|
|
Bateman Manufacturing
|
5 Winstar Road RR#1
|
Shanty Bay, Ontario L0L 2L0
|
Canada
|
|
Defendant.
|
___________________________________________

Civil Action No. 2:16-cv-1171

COMPLAINT FOR PATENT INFRINGEMENT

1.

This is an action for direct patent infringement of United States Letters Patent No.

D704,752 brought against defendant, who is an Ontario, Canadian corporation.

THE PARTIES
2.

Plaintiff is S.A.S. of Luxemburg, a corporation duly organized and existing under

the laws of the State of Wisconsin. Plaintiff is the exclusive owner of U.S. Patent No. D704,752,
which is issued to Paul D. Secker on May 13, 2014.

3.

Defendant is Bateman Manufacturing. On information and belief, Bateman

Manufacturing is a corporation duly organized and existing under the laws of Ontario, Canada.

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JURISDICTION AND VENUE

4.

This action arises under an Act of Congress, the patent laws as codified in Title 35

United States Code, and under Section 281 and other applicable sections thereof. Subject matter
jurisdiction is based on 28 U.S.C. Sections 1331 and 1338.

5.

Plaintiff is a corporation organized in the State of Wisconsin. The defendant is on

information and belief actively doing business in the State of Wisconsin. This court has jurisdiction
under 28 U.S.C. Section 1332. Venue is proper in this judicial district under 28 U.S.C. Section
1391(c) and 1400(b).

CLAIM FOR RELIEF

6.

On May 13, 2014, United States Letters Patent No. D704,752 was issued to Paul D.

Secker for an invention entitled, Extractor Tongs; plaintiff is presently the assignee of said Letters
Patent. A copy of Patent No. D704,752 is attached and identified as Exhibit A.

7.

Defendants are presently directly infringing said Letters Patents by making, using,

selling and offering for sale an extractor tongs, offered under the product name of Autogator
embodying the patented invention, and are infringing said Letters Patents under Title 28 U.S.C.
Section 271. Defendant will continue their acts of direct patent infringement unless enjoined by this
Court.
8.

The defendant is offering to sell its Autogator product through the Recycling Product

News magazine. The April 2016 issue of Recycling Product News on page 20 includes an
advertisement of the Bateman Autogator. The Autogator product may be purchased through its
website of www.batemanmanufacturing.com. A front page of the Recycling Product News
magazine, page 20 of the same and an enlarged view of the Bateman advertisement and identified as
2

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Exhibit B. The Bateman Autogator product was offered for sale in Wisconsin, because a copy of
the April 2016 Recyling News was mailed to Paul Secker of SAS Forks at an address of 2425
Ironwood Drive, Green Bay, WI 54304. Therefore, Bateman Manufacturing offers its products for
sale in the state of Wisconsin.

9.

The Autogator product directly infringes the Claim of US Patent No. D704,752 by

being confusingly similar to the ornamental design for extraction tongs, as shown and described.

10.

Plaintiff is entitled to damages from the date of issuance of said patent, under 35

U.S.C. 287. Defendant does not have a license from Plaintiff to utilize US Patent No. D704,752.

WHEREFORE, Plaintiff S.A.S. of Luxemburg, Ltd. respectfully prays this Court for an
Order:

1.

Granting judgment in favor of plaintiff and against the defendant herein, said order

holding that defendants have infringed United States Letters Patent No. D704,752.

2.

Awarding to plaintiff its compensatory and consequential damages incurred by

plaintiff, because of such infringement, and further that such damages assessed be trebled in
accordance with 28 U.S.C. Section 284;

3.

Enjoining defendant by preliminary and permanent injunction from continuing their

acts of infringement of said patent, said injunctions to be binding on defendant, its officers, agents,
servants, employees, and attorneys, as well as any juridical persons owned or controlled by them,
3

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and upon those persons in active concert or participation with them who receive actual notice of the
order by personal service or otherwise;

4.

Awarding to plaintiff prejudgment and post judgment interest on the award of

damages, as well as its Court costs;

5.

Awarding to plaintiff its reasonable attorney fees incurred in prosecuting this action

under 28 U.S.C. Section 285, and holding that, because of the willful and deliberate nature of
defendants acts of infringement, the present action is an exceptional case;
6.

That the defendant be ordered to collect and tender for destruction all infringing

product under its control.

7.

For such other and further relief as to this Court shall appear just and equitable.

S.A.S. of Luxemburg, Ltd.

s/ Donald J. Ersler
Donald J. Ersler
1165 Terrace Drive
Elm Grove, Wisconsin 53122
Atty No. 1022900
(262) 785-0160
Attorney For Plaintiff

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CIVIL COVER SHEET

JS 44 (R ev. 09/11)

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 IN STRU C TIO N S O N N EXT PAG E O F TH IS FO RM .)

Place an X in the appropriate box:

I. (a) PLAINTIFFS
S.A.S. of Luxemburg, Ltd.

Green Bay Division

(b) County of Residence of First Listed Plaintiff

Milwaukee Division
DEFENDANTS
Bateman Manufacturing
County of Residence of First Listed Defendant

Kewaunee

(EXC EPT IN U .S. PLAIN TIFF C ASES)

(IN U .S. PLAIN TIFF C ASES O N LY)

N O TE:

IN LAN D C O N D EM N ATIO N C ASE S, U SE THE LO C ATIO N O F

THE TR AC T O F LAN D IN V O LV ED .

Attorneys (If K nown)

(c) Attorneys (Firm N am e, Address, and Telephone N um ber)

Donald J. Ersler, S.C., 1165 Terrace Drive, Elm Grove, WI 53122

II. BASIS OF JURISDICTION

(Place an X in O ne Box O nly)

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

(For D iversity C ases O nly)

U .S. G overnment
Plaintiff

3 Federal Q uestion
(U .S. G overnm ent N ot a Party)

U .S. G overnment
D efendant

IV. NATURE OF SUIT

D iversity
(Indicate C itizenship of Parties in Item III)

TORTS

110
120
130
140
150

Insurance
M arine
M iller Act
N egotiable Instrument
R ecovery of O verpayment
& Enforcement of Judgment
151 M edicare Act
152 R ecovery of D efaulted
Student Loans
(Excl. V eterans)
153 R ecovery of O verpayment
of V eterans Benefits
160 Stockholders Suits
190 O ther C ontract
195 C ontract Product Liability
196 Franchise

210
220
230
240
245
290

R E A L P R O PE R T Y
Land C ondemnation
Foreclosure
R ent Lease & Ejectment
Torts to Land
Tort Product Liability
All O ther R eal Property

V. ORIGIN
1 Original
Proceeding

C itizen of This State

DEF
1

C itizen of Another State

Incorporated and Principal Place

of Business In A nother State

C itizen or Subject of a
Foreign C ountry

Foreign N ation

(Place an X in O ne Box O nly)

CONTRACT

and O ne Box for D efendant)

PTF
DEF
Incorporated or Principal Place
4
4
of Business In This State

PTF
1

P E R SO N A L IN JU R Y
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 M arine
345 M arine Product
Liability
350 M otor V ehicle
355 M otor V ehicle
Product Liability
360 O ther Personal
Injury
362 Personal Injury M ed. M alpractice
C IV IL R IG H T S
440 O ther C ivil R ights
441 V oting
442 Employment
443 Housing/
Accommodations
445 Amer. w /D isabilities Employment
446 Amer. w /D isabilities O ther
448 Education

F O R FE IT U R E /P E N A L T Y

P E R SO N A L IN JU R Y
365 Personal Injury Product Liability
367 Health C are/
Pharmaceutical
Personal Injury
Product Liability
368 Asbestos Personal
Injury P roduct
Liability
P E R SO N A L P R O P E R T Y
370 O ther Fraud
371 Truth in Lending
380 O ther Personal
Property D amage
385 Property D amage
Product Liability
P R ISO N E R PE T IT IO N S
510 M otions to V acate
Sentence
H abeas C orpus:
530 G eneral
535 D eath Penalty
540 M andamus & O ther
550 C ivil R ights
555 Prison C ondition
560 C ivil D etainee C onditions of
C onfinement

625 D rug R elated Seizure

of Property 21 U SC 881
690 O ther

B A N K R U PT C Y
422 Appeal 28 U SC 158
423 W ithdraw al
28 U SC 157
P R O PE R T Y R IG H T S
820 C opyrights
830 Patent
840 Trademark

710
720
740
751
790
791

LABOR
Fair Labor Standards
Act
Labor/M gmt. R elations
R ailw ay Labor Act
Family and M edical
Leave Act
O ther Labor Litigation
Empl. R et. Inc.
Security Act

SO C IA L SE C U R IT Y
861 HIA (1395ff)
862 Black Lung (923)
863 D IW C /D IW W (405(g))
864 SSID Title X V I
865 R SI (405(g))

F E D E R A L T A X SU IT S
870 Taxes (U .S. Plaintiff
or D efendant)
871 IR S Third Party
26 U SC 7609

O T H E R ST A T U T E S

375
400
410
430
450
460
470

False C laims Act

State R eapportionment
Antitrust
Banks and Banking
C ommerce
D eportation
R acketeer Influenced and
C orrupt O rganizations
480 C onsumer C redit
490 Cable/Sat TV
850 Securities/C ommodities/
Exchange
890 O ther Statutory Actions
891 Agricultural Acts
893 Environmental M atters
895 Freedom of Information
Act
896 Arbitration
899 Administrative Procedure
Act/R eview or Appeal of
Agency D ecision
950 C onstitutionality of
State Statutes

IM M IG R A T IO N
462 N aturalization Application
463 Habeas C orpus Alien D etainee
(Prisoner Petition)
465 O ther Immigration
Actions

(Place an X in O ne Box O nly)

Transferred from
2 Removed from
3 Remanded from
4 Reinstated or 5 another district
6 Multidistrict
State Court
Appellate Court
Reopened
Litigation
(specify)
Cite the U.S. Civil Statute under which you are filing (D o not cite jurisdictional statutes unless diversity) :

VI. CAUSE OF ACTION Brief description of cause:

Infringement of U.S. Patent No. D704752
DEMAND $
CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN
UNDER F.R.C.P. 23
COM PLAINT:
VIII. RELATED CASE(S)
IF ANY

CHECK YES only if demanded in complaint:

Yes
No
JURY DEMAND:

(See instructions):

JUDGE

D ATE

DOCKET NUMBER

SIG N ATU R E O F ATTO R N EY O F R EC O R D

s/Donald J. Ersler

08/11/2016
F O R O F F IC E U SE O N L Y

APPLY IN Filed
G IFP
JU D G
M AG
. JU D G E
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R EC EIPT #

AM O U N T

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JS 44 R everse (R ev. 09/11)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading 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. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint
filed. The attorney filing a case should complete the form as follows:
I.
(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only
the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving
both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation
cases, the county of residence of the defendant is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section (see attachment).
II.
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an X in one
of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an X in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the
Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box
1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of
the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section
for each principal party.
IV.
Nature of Suit. Place an X in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of
suit, select the most definitive.
V.

Origin. Place an X in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition
for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict
litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this
box is checked, do not check (5) above.
Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judges decision.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes
unless diversity.
Example:
U.S. Civil Statute: 47 USC 553
Brief Description: Unauthorized reception of cable service
VII.

Requested in Complaint. Class Action. Place an X in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers
and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

Case 2:16-cv-01171-NJ Filed 08/31/16 Page 2 of 2 Document 1-3

AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURT

for the

Eastern District
__________
DistrictofofWisconsin
__________
S.A.S. of Luxemburg, Ltd.

)
)
)
)
)
)
)

Plaintiff

v.
Bateman Manufacturing
Defendant

Civil Action No. 2:16-cv-00_

SUMMONS IN A CIVIL ACTION

To: (Defendants name and address) Mark Vandenberg
Bateman Manufacturing
5 Winstar Road RR#1
Shanty Bay, Ontario L0L 2L0, Canada

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: Donald J. Ersler, Esq.
Donald J. Ersler, S.C.
1165 Terrace Drive
Elm Grove, WI 53122

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.

JON W. SANFILIPPO
CLERK OF COURT

Date:
Signature of Clerk or Deputy Clerk

Case 2:16-cv-01171-NJ Filed 08/31/16 Page 1 of 2 Document 1-4

AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

Civil Action No. 2:16-cv-00_

PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date)

I personally served the summons on the individual at (place)

on (date)

; or

I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)

, and mailed a copy to the individuals last known address; or

I served the summons on (name of individual)

, who is

designated by law to accept service of process on behalf of (name of organization)

on (date)

; or

I returned the summons unexecuted because

; or

Other (specify):
.

My fees are $

for travel and $

for services, for a total of $

0.00

I declare under penalty of perjury that this information is true.

Date:
Servers signature

Printed name and title

Servers address

Additional information regarding attempted service, etc:

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