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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

BUNZL PROCESSOR DISTRIBUTION, LLC, Plaintiff, v. BETTCHER INDUSTRIES, INC. and EXACT MANUFACTURING & MACHINE, INC., Defendants. Case No. __________ COMPLAINT FOR DECLARATORY JUDGMENT AND CONDITIONAL RELIEF

Plaintiff Bunzl Processor Distribution, LLC (Bunzl) sets forth the following Complaint against defendants Bettcher Industries, Inc. (Bettcher) and Exact Manufacturing & Machine, Inc. (Exact): INTRODUCTION 1. The litigation between these parties began with a patent infringement complaint

filed by Bettcher on October 13, 2008. 2. In that 2008 complaint, filed in the United States District Court for the Northern

District of Ohio, Bettcher accused Bunzl of infringing the claims of U.S. Patent No. 7,000,325 covering the design of a rotary knife blade for use in Bettchers Whizard Series II rotary knives. 3. Though Bettcher admitted that the blade design sold by Bunzl did not possess the

claimed shape, in that 2008 litigation Bettcher alleged that Bunzls blade wore to an infringing shape during use.

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4.

After a jury verdict of noninfringement, the court entered a judgment of no

infringement, and the judgment was affirmed by the Federal Circuit. 5. Subsequently, on December 13, 2011, the United States Patent and Trademark

Office issued U.S. Patent No. 8,074,363 (the 363 Patent). 6. 7. The 363 Patent is a child patent of U.S. Patent No. 7,000,325. On the day the 363 Patent issued, Bettcher again sued Bunzl in the United States

District Court for the Northern District of Ohio (the Ohio Litigation) for patent infringement and for provisional rights under 35 U.S.C. 154(d), presumably on the same rotary knife blades at issue in the 2008 litigation. 8. Before filing suit, Bettcher did not confirm whether or not Bunzl was actually still

selling the rotary knife blades accused of infringement in 2008. 9. LLC. 10. Upon information and belief, Hillsboro Manufacturing, LLC has had no In the Ohio Litigation, Bettcher also named Exact and Hillsboro Manufacturing,

involvement with any rotary knife blade sold by Bunzl or Exact on or after the issue date of the 363 Patent. 11. Omaha based Exact designs, manufactures, and sells to Bunzl the replacement

blades for the Bettcher Whizard Series II rotary knife. 12. 13. Exact has asserted that it is not subject to personal jurisdiction or venue in Ohio. Bunzl contends that Exact is an indispensable party to full resolution of the

dispute among these parties. 14. Accordingly, Bunzl brings this Complaint, in this Court, in which all parties are

subject to personal jurisdiction and in which venue is proper, seeking this Court: (1) to declare

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that Bunzl does not infringe the 363 Patent; (2) to declare that Bunzl is not liable to Bettcher for provisional rights under 35 U.S.C. 154(d); (3) to declare that the 363 Patent is not valid; and (4) if the Court finds that the 363 Patent is valid and infringed, to declare that Exact breached the implied warranty of no infringement pursuant to Nebraska Uniform Commercial Code 2-312. PARTIES 15. Plaintiff Bunzl is a Missouri limited liability corporation with its principal place

of business at 528 E. 19th Ave., North Kansas City, Missouri. 16. Upon information and belief, Exact is a Nebraska corporation with its principal

place of business at 6005 North Ninth Street, Omaha, Nebraska. 17. Upon information and belief, Bettcher is a Delaware corporation with its principal

place of business at 6801 State Route 60, Birmingham, Ohio 44816. JURISDICTION 18. On December 13, 2011, Bettcher filed a Complaint in the United States District

Court for the Northern District of Ohio (the Ohio Complaint) against Bunzl, Exact, and Hillsboro Manufacturing, LLC alleging that the defendants were infringing the claims of Bettchers U.S. Patent No. 8,074,363. 19. Bettcher alleges in its Ohio Complaint that Bunzls sales and offers for sale of

replacement blades for the Bettcher Whizard Series II rotary knife infringe the claims of the 363 Patent. 20. Thus, a justiciable controversy exists between Bettcher and Bunzl related to the

validity and infringement of the 363 Patent and jurisdiction is proper over these claims under

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the Federal Declaratory Judgment Act, 28 U.S.C. 1338, 2201 and 2202 and the Patent Laws of the United States. 21. With respect to Exact, complete diversity of citizenship exists between the parties

and the amount in controversy exceeds $75, 000, therefore this Court has jurisdiction over the claims related to Exact under 28 U.S.C. 1332 and 28 U.S.C. 1367. VENUE 22. Upon information and belief, Bettcher regularly conducts business within the

State of Nebraska, including, but not limited to offering for sale and selling rotary knives, rotary knife blades and supplies for operating those knives and blades within this judicial district. 23. Venue in this District is appropriate for the declaratory judgment claims levied

against Bettcher pursuant to 28 U.S.C. 1391 and 1400(b), as Bettcher is subject to personal jurisdiction in this judicial district. 24. Venue in this District is appropriate for the claims levied against Exact, as it

resides within this judicial district. STATEMENT OF FACTS 25. Bunzl has not infringed any valid claim of the 363 Patent. Bunzl has not and is

not inducing and/or contributing to direct infringement of any claim of the 363 Patent. 26. The claims of the 363 Patent are invalid, unenforceable, and/or void. INVALIDITY IN VIEW OF PRIOR BETTCHER BLADES 27. 28. 1998. 29. The claims of the 363 Patent are directed solely to a rotary knife blade. Bettcher alleges that its 363 Patent issued on December 13, 2011. Bettcher claims priority for its 363 Patent to an application filed on July 22,

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30.

Bettcher sold rotary knife blades in the United States more than a year prior to the

earliest possible priority date for the 363 Patent. 31. Bettcher designed, manufactured, and sold rotary knife blades in the United States

that were used in a rotary knife design that preceded the Bettcher Whizard Series II rotary knives. Those blades were referred to in prior litigation between the parties as Old Style rotary knives and rotary knife blades. 32. One of the rotary knife blades designed, manufactured, and sold by Bettcher in

the United States more than a year prior to the priority date of the 363 Patent for use in Old Style rotary knives, is a blade known as the Model 625 rotary knife blade. 33. The cross-sectional shape of the Old Style Model 625 rotary knife blade is

depicted in the following drawing:

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34.

More than a year before the priority date of the 363 Patent, Bettcher sold and

offered for sale in the United States an Old Style Model 625 rotary knife blade (Old Style Model 625 Blade) having a cross-sectional shape as shown in the above drawing. 35. Bettcher currently sells a Model 625 rotary knife blade (Current Model 625

Blade) having a groove and adjacent chamfers of the same shape and dimensions as the groove and adjacent chamfers of the Old Style Model 625 Blade.

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36.

The metal characteristics of the Current Model 625 Blade are the same as the

metal characteristics of the Old Style Model 625 Blade. 37. The Old Style Model 625 Blade possessed each and every limitation of the claims

of the 363 Patent. 38. Because the Old Style Model 625 Blade was sold in the United States and/or

offered for sale in the United States more than a year before the earliest priority date for the 363 Patent, the Old Style Model 625 Blade anticipates or renders obvious every claim of the 363 patent pursuant to 35 U.S.C. 102 and 103. 39. In the alternative, if the Court finds that the claims of the 363 Patent are valid,

enforceable and infringed, then Exact has breached its obligations to Bunzl. COUNT I DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF 363 PATENT 40. Bunzl re-alleges the allegations from each of the previous paragraphs of the

counterclaims as if fully set forth herein. 41. Bunzl has not and does not infringe the 363 Patent, directly or indirectly. COUNT II DECLARATORY JUDGMENT OF NO PROVISIONAL RIGHTS UNDER 35 U.S.C. 154(D) 42. Bunzl re-alleges the allegations from each of the previous paragraphs of the

counterclaims as if fully set forth herein. 43. Bettcher is not entitled to provisional rights under 35 U.S.C. 154(d) with respect

to any blades sold by Bunzl prior to the issuance of the 363 Patent.

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COUNT III DECLARATORY JUDGMENT OF INVALIDITY OF THE 363 PATENT 44. Bunzl re-alleges each and every one of the allegations from previous paragraphs

of the counterclaims as if fully set forth herein. 45. Every claim of the 363 Patent is invalid for failing to comply with one or more of

the grounds specified in Part II of Title 35 United States Code 101 et seq. COUNT IV CONDITIONAL CLAIM AGAINST EXACT FOR BREACH OF WARRANTY OF NON-INFRINGEMENT 46. herein. 47. Upon information and belief, the rotary knife blades Bunzl has sold and offered Bunzl re-alleges the allegations from previous paragraphs as if fully set forth

for sale were designed and manufactured by Exact and sold by Exact to Bunzl. 48. Bunzl did not provide Exact with specifications for the design and manufacture of

the rotary knife blades manufactured by Exact and sold to Bunzl. 49. The rotary knife blades sold by Exact to Bunzl constitute goods as that term is

defined under the Nebraska Uniform Commercial Code 2-105. 50. The Nebraska Uniform Commercial Code 2-312 includes a warranty of

noninfringement that accompanies every good sold under that code. 51. Exact did not disclaim or provide any language excluding or modifying the

warranty of noninfringement associated with the sale of Exacts rotary knife blades to Bunzl. 52. Bettcher has accused rotary knife blades designed, manufactured, and sold by

Exact of infringing the 363 Patent.

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53.

If any of the blades designed, manufactured, and sold by Exact to Bunzl are found

to infringe any of the claims of the 363 Patent, then Exact is in breach of its warranty of noninfringement to Bunzl and Bunzl will have been damaged as a result of that breach. BUNZLS PRAYER FOR RELIEF WHEREFORE, Bunzl respectfully requests that this Court enter judgment in its favor and grant the following relief: (a) (b) A declaration that Bunzl has not infringed any claim of the 363 Patent; A declaration that Bettcher is not entitled to collect anything by way of any

provisional patent rights against Bunzl; (c) (d) A declaration that the claims of the 363 Patent are invalid; A finding that, if Bunzls sales of rotary knife blades designed, manufactured, and

sold by Exact infringe any claim of the 363 Patent, then Exact has breached the warranty of non-infringement that accompanies the sale of those rotary knife blades to Bunzl; (e) An award of damages to compensate Bunzl for any breach by Exact of the

warranty of noninfringement; (f) (g) A finding that this case is exceptional pursuant to 35 U.S.C. 285; An order awarding Bunzl its costs and disbursements in this action, including

reasonable attorneys fees, pursuant to 35 U.S.C. 284, 285, and other applicable law; and (h) circumstances. PLACE OF TRIAL Pursuant to NECivR 40.1(b), Bunzl hereby requests that trial of this case take place in Omaha, Nebraska. An award to Bunzl of such further relief as the Court deems appropriate under the

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JURY DEMAND Bunzl demands a trial by jury on all issues triable of right by a jury. Dated this 8th day of February, 2012. BUNZL PROCESSOR DISTRIBUTION, LLC, Plaintiff

By:

s/ John P. Passarelli John P. Passarelli #16018 James M. Sulentic #19610 KUTAK ROCK LLP The Omaha Building 1650 Farnam Street Omaha, NE 68102-2186 Phone: (402) 346-6000 Fax: (402) 346-1148 john.passarelli@kutakrock.com james.sulentic@kutakrock.com

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