IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON CIVIL ACTION

NO. 3:11-cv-00382 * * * * * Plaintiff, * * vs. COMPLAINT FOR PATENT * INFRINGEMENT AND JURY * POLYLOK, INC. DEMAND ENDORSED HEREON * c/o Statutory Agent * Norman Gavin * 173 Church St. * Wallingford, Connecticut 06492, * * Defendant. * ________________________________ DAYTON SUPERIOR CORPORATION 1125 Byers Road Miamisburg, Ohio 45342,

For its Complaint, DAYTON SUPERIOR CORPORATION (DAYTON SUPERIOR) hereby alleges: PARTIES 1. DAYTON SUPERIOR is a corporation organized and existing under the laws of the

State of Delaware and has a principal place of business at 1125 Byers Road, Miamisburg, Ohio. 2. POLYLOK, INC. (POLYLOK) is a corporation organized and existing under the

laws of Connecticut and has a principal place of business at 3 Fairfield Boulevard, Wallingford, Connecticut 06492.

JURISDICTION AND VENUE 3. This is an action for patent infringement arising under the patent laws of the United

States. The Court has original and exclusive jurisdiction over the subject matter of this action pursuant to 28 U.S.C. 1331 and 1338(a). 4. POLYLOK has transacted business, and at the time of the filing of this Complaint is

transacting business, within the Southern District of Ohio by selling and marketing its commercial products to customers located within the District. 5. POLYLOK has sufficient minimum contacts with the State of Ohio and the Western

Division of the Southern District of Ohio such that this Court has personal jurisdiction over it and this is a fair and reasonable venue for the litigation of this action. POLYLOK has committed such purposeful acts and/or transactions in Ohio that it reasonably should know and expect that it could be called into this court as a consequence of such activity. 6. POLYLOK has committed acts of patent infringement, including the acts

complained of herein, throughout the United States including within this judicial district. Pursuant to 28 U.S.C. 1391(c) and 1400(b), venue is proper in this District where POLYLOK is subject to personal jurisdiction. BACKGROUND FACTS 7. DAYTON SUPERIOR is one of the nation's leading suppliers of accessories for use

in the concrete construction industry. Among its many, varied products, DAYTON SUPERIOR manufactures and sells plastic rebar safety caps for use on construction sites to protect construction workers from protruding rebar. 8. POLYLOK competes directly with DAYTON SUPERIOR for the sale of

accessories used in concrete construction.

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By assignment in March 2011, DAYTON SUPERIOR became the owner of all

right, title and interest in United States Patent No. 5,381,636, entitled PROTECTIVE COVER FOR CONCRETE REINFORCING BARS (the 636 Patent), including the right to sue for past infringement. A true copy of the '636 Patent is attached as Exhibit A. 10. DAYTON SUPERIOR manufactures and sells a product referred to as the PC-110 or PC-200 Rebar Safety Cap (Rebar Safety Cap) that is covered by one or more claims of the '636 Patent. 11. Since no later than March 2011, each Rebar Safety Cap has been consistently marked with the '636 Patent number. 12. By assignment in March 2011, DAYTON SUPERIOR also became the owner of all right, title and interest in United States Patent No. 5,568,708, entitled PROTECTIVE COVER FOR COVERING AN END OF A CONCRETE REINFORCING BAR (the 708 Patent), including the right to sue for past infringement. A true copy of the 708 Patent is attached as Exhibit B. 13. DAYTON SUPERIORs Rebar Safety Cap is covered by one or more of the claims of the 708 Patent. 14. Since no later than March 2011, each Rebar Safety Cap has been consistently marked with the '708 Patent number. 15. By assignment in March 2011, DAYTON SUPERIOR also became the owner of all right, title and interest in United States Patent No. 5,729,941, entitled PROTECTIVE COVER FOR CONCRETE REINFORCING BAR (the 941 Patent), including the right to sue for past infringement. A true copy of the 941 Patent is attached as Exhibit C.

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16. DAYTON SUPERIORs Rebar Safety Cap is covered by one or more of the claims of the 941 Patent. 17. Since no later than March 2011, each Rebar Safety Cap has been consistently marked with the '941 Patent number. 18. By assignment in March 2011, DAYTON SUPERIOR also became the owner of all right, title and interest in United States Patent No. 5,946,871, entitled REINFORCING BAR PROTECTIVE COVER (the 871 Patent), including the right to sue for past infringement. A true copy of the 871 Patent is attached as Exhibit D. 19. DAYTON SUPERIORs Rebar Safety Cap is covered by one or more of the claims of the 871 Patent. 20. Since no later than March 2011, each Rebar Safety Cap has been consistently marked with the '871 Patent number. 21. The '636 Patent, the 708 Patent, the 941 Patent and the 871 Patent are presumed valid pursuant to 35 U.S.C. 282. CLAIM I: PATENT INFRINGEMENT OF THE '636 PATENT (35 U.S.C. 271) 22. DAYTON SUPERIOR repeats and reasserts the allegations of Paragraphs 1 through 21 as if set forth at length herein. 23. POLYLOK manufactures, uses, sells, and offers to sell a product called the POLYLOK OSHA Rebar Safety Cap that directly infringes one or more claims of the '636 Patent under 35 U.S.C. 271. 24. POLYLOK even identifies DAYTON SUPERIORs 636 Patent on the POLYLOK product, falsely implying that the product is authorized under the '636 Patent. 25. A printout from POLYLOKs website, www.polylok.com, showing a sample of the POLYLOK OSHA Rebar Safety Cap is attached as Exhibit E. -4-

26. True and accurate photographs of a sample of a POLYLOK OSHA Rebar Safety Cap obtained by DAYTON SUPERIOR are attached as Exhibit F. 27. Upon information and belief, POLYLOK has, without authority, used, offered to sell and sold the POLYLOK OSHA Rebar Safety Cap within the United States and this district. 28. The infringement by POLYLOK is ongoing and has been willful and wanton. 29. The infringement of the '636 Patent by POLYLOK is causing DAYTON SUPERIOR to suffer economic damages, including lost sales. 30. The infringement of the '636 Patent by POLYLOK, as described above, is causing irreparable damage to DAYTON SUPERIOR and will continue to cause irreparable damage to DAYTON SUPERIOR unless POLYLOK is enjoined by this Court. CLAIM II: PATENT INFRINGEMENT OF THE '708 PATENT (35 U.S.C. 271) 31. DAYTON SUPERIOR repeats and reasserts the allegations of Paragraphs 1 through 30 as if set forth at length herein. 32. POLYLOK manufactures, uses, sells, and offers to sell a product called the POLYLOK OSHA Rebar Safety Cap that directly infringes one or more claims of the '708 Patent under 35 U.S.C. 271. 33. POLYLOK even identifies DAYTON SUPERIORs 708 Patent on the POLYLOK product, falsely implying that the product is authorized under the '708 Patent. 34. Upon information and belief, POLYLOK has, without authority, use, offered to sell and sold the POLYLOK OSHA Rebar Safety Cap within the United States and this district. 35. The infringement by POLYLOK is ongoing and has been willful and wanton. 36. The infringement of the '708 Patent by POLYLOK is causing DAYTON SUPERIOR to suffer economic damages, including lost sales.

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37. The infringement of the '708 Patent by POLYLOK, as described above, is causing irreparable damage to DAYTON SUPERIOR and will continue to cause irreparable damage to DAYTON SUPERIOR unless POLYLOK is enjoined by this Court. CLAIM III: PATENT INFRINGEMENT OF THE '941 PATENT (35 U.S.C. 271) 38. DAYTON SUPERIOR repeats and reasserts the allegations of Paragraphs 1 through 37 as if set forth at length herein. 39. POLYLOK manufactures, uses, sells, and offers to sell a product called the POLYLOK OSHA Rebar Safety Cap that directly infringes one or more claims of the '941 Patent under 35 U.S.C. 271. 40. POLYLOK even identifies DAYTON SUPERIORs 941 Patent on the POLYLOK product, falsely implying that the product is authorized under the '941 Patent. 41. Upon information and belief, POLYLOK has, without authority, used, offered to sell and sold the POLYLOK OSHA Rebar Safety Cap within the United States and this district. 42. The infringement by POLYLOK is ongoing and has been willful and wanton. 43. The infringement of the '941 Patent by POLYLOK is causing DAYTON SUPERIOR to suffer economic damages, including lost sales. 44. The infringement of the '941 Patent by POLYLOK, as described above, is causing irreparable damage to DAYTON SUPERIOR and will continue to cause irreparable damage to DAYTON SUPERIOR unless POLYLOK is enjoined by this Court. CLAIM IV: PATENT INFRINGEMENT OF THE '871 PATENT (35 U.S.C. 271) 45. DAYTON SUPERIOR repeats and reasserts the allegations of Paragraphs 1 through 44 as if set forth at length herein.

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46. POLYLOK manufactures, uses, sells, and offers to sell a product called the POLYLOK OSHA Rebar Safety Cap that directly infringes one or more claims of the '871 Patent under 35 U.S.C. 271. 47. POLYLOK even identifies DAYTON SUPERIORs 871 Patent on the POLYLOK product, falsely implying that the product is authorized under the '871 Patent. 48. Upon information and belief, POLYLOK has, without authority, used, offered to sell and sold the POLYLOK OSHA Rebar Safety Cap within the United States and this district. 49. The infringement by POLYLOK is ongoing and has been willful and wanton. 50. The infringement of the '871 Patent by POLYLOK is causing DAYTON SUPERIOR to suffer economic damages, including lost sales. 51. The infringement of the '871 Patent by POLYLOK, as described above, is causing irreparable damage to DAYTON SUPERIOR and will continue to cause irreparable damage to DAYTON SUPERIOR unless POLYLOK is enjoined by this Court. WHEREFORE, PLAINTIFF prays for judgment against POLYLOK as follows: (1) Issuance of preliminary and permanent injunctions pursuant to 35 U.S.C. 283

enjoining further acts of infringement of the '636 Patent, the 708 Patent, the 941 Patent and the 871 Patent. (2) An accounting of POLYLOKs sales and profits in connection with sales of the

infringing products. (3) An award of damages adequate to compensate for the infringement, no less than a

reasonable royalty, together with interest and costs pursuant to 35 U.S.C. 284. (4) An award of triple damages pursuant to 35 U.S.C. 284 for willful infringement

of the '636 Patent, the 708 Patent, the 941 Patent and the 871 Patent.

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(5) (6) (7)

An award of pre-judgment and post-judgment interest. An award of attorney fees pursuant to 35 U.S.C. 285. An award of such other and further relief as the Court may deem just and proper.

Respectfully submitted, By: /s/Jeffrey C. Metzcar Jeffrey C. Metzcar (#0072648), Trial Attorney 937.443.6841 Jeff.Metzcar@ThompsonHine.com Christine M. Haaker (#0063225) 937.443.6822 Christine.Haaker@ThompsonHine.com THOMPSON HINE LLP 10050 Innovation Drive, Suite 400 Dayton, Ohio 45432 Facsimile 937.443.6835 Counsel For Plaintiff, DAYTON SUPERIOR CORPORATION Dated: October 28, 2011 DEMAND FOR JURY TRIAL Plaintiff demands a jury trial of all issues raised by the Complaint which are triable of right by a jury. Respectfully submitted, By: /s/Jeffrey C. Metzcar Jeffrey C. Metzcar THOMPSON HINE LLP 2000 Courthouse Plaza, N.E. 10 West Second Street Dayton, Ohio 45402 Telephone (937) 443-6841 Facsimile (937) 443-6635 jeff.metzcar@thompsonhine.com Counsel For Plaintiff, DAYTON SUPERIOR CORPORATION -8-