Case 5:12-cv-04077-JTM-JPO Document 1 Filed 06/12/12 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS SHILLING CONSTRUCTION COMPANY, INC., a Kansas corporation, Plaintiff, v. ARR-MAZ PRODUCTS, L.P., a Delaware limited partnership, Defendant. 12-4077-JTM-JPO CASE No. ____

COMPLAINT FOR DECLARATORY JUDGMENT Plaintiff Shilling Construction Company, Inc. (Shilling), for its claims against Defendant Arr-Maz Products, L.P. (Arr-Maz), alleges and states as follows: PARTIES, JURISDICTION AND VENUE 1. Shilling is a corporation formed under the laws of the State of Kansas, with its

principle place of business located at 555 Poyntz Ave., Manhattan, Kansas. 2. Arr-Maz Products, L.P. is a limited partnership, formed under the laws of the

State of Delaware, with its principal state of business located in the State of Florida. 3. This action arises under the patent laws of the United States, Title 35 of the

United States Code, the Declaratory Judgment Act, 28 U.S.C. 2201-2202, and Federal Rule of Civil Procedure 57. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331, 1338, 2201-2202, as Shillings claims arise under the patent laws of the United States and the federal Declaratory Judgment Act.

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4.

Personal jurisdiction and venue are proper in this District pursuant to 28 U.S.C.

1391 and the Kansas jurisdictional statute, K.S.A. 60-308, et seq., because Arr-Maz has specific and continuous contacts in this District, has in the past and does presently conduct business in this District, has sufficient minimum contacts to subject it to personal jurisdiction in this District, has accused Shilling of infringing Arr-Mazs patent (described below) in this District, and because a substantial part of the events giving rise to Shillings claims occurred in this District, as described below. FACTS 5. Shilling is a family owned and operated asphalt paving company located in

Manhattan, Kansas, that has been providing asphalt services in and around Kansas for over 45 years. 6. Arr-Maz is in the business of marketing chemicals and surface paving

technologies. Arr-Mazs business includes, but is not limited to, acquiring the rights to existing patents and enforcing said patents against commercial entities. 7. Arr-Maz claims to be the owner of, and has accused Shilling of infringing, United

States Patent No. 7,802, 941 entitled Rut Resisting Coating and Method of Applying Rut Resistance coating (the 941 Patent). 8. On June 4, 2012, Arr-Maz filed a Complaint in The United States District Court

for the Northern District of Oklahoma captioned Arr-Maz Products, L.P. v. Shilling Construction Company, Inc. (Oklahoma Complaint). In the Oklahoma Complaint, Arr-Maz incorrectly alleges that venue and jurisdiction are proper in the Northern District of Oklahoma when, in fact, Shilling does not have sufficient contacts with the state of Oklahoma to establish jurisdiction. 9. Arr-Maz has alleged that an invention was patented under the 941 Patent, and

accuses Shilling of infringing the 941 Patent.

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10.

Arr-Maz has alleged, for example, in the Oklahoma Complaint that Shilling

infringed and continues to infringe the 941 Patent by making, using, offering for sale and selling products and methods claimed in the 941 Patent in connection with asphalt paving construction projects in the State of Kansas for the Kansas Department of Transportation, including KDOT Project No. U054 060 KA 2035-0. 11. Further, on information and belief, Arr-Mazs predecessor in interest to the 941

Patent, Road Science LLC, threatened to assert the 941 Patent against Shilling. 12. On information and belief, Arr-Mazs predecessor in interest to the 941 Patent,

Road Science LLC, sent one or more purported invoices to Shilling contending that Shilling is required to pay fees for use of the alleged invention claimed in the 941 Patent. 13. On information and belief, Arr-Mazs predecessor in interest to the 941 Patent,

Road Science LLC, threatened Shilling with patent infringement in an effort to cause Shilling to take a license to use the alleged invention claimed in the 941 Patent. 14. Arr-Maz has alleged in the Oklahoma Complaint that Shilling has made, used,

offered for sale and sold products and methods protected by the 941 Patent. 15. Arr-Mazs allegations against Shilling are incorrect, including, but not limited to,

its allegations that Shilling infringes the 941 Patent. COUNT I (Declaration That Shilling Has Not Infringed The 941 Patent) 16. Shilling adopts and re-alleges the allegations of paragraphs 1 through 15 of this

Complaint as if fully stated herein. 17. Shilling has not infringed and is not infringing any valid claims of the 941 patent

by making, using, offering for sale and/or selling products or methods that are claimed in the 941 Patent or that are substantially equivalent to the claimed products and methods, including in

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connection with road paving projects that Shilling has or will perform in the State of Kansas or the projects identified in the Oklahoma Complaint. 18. Shilling has suffered injury and will continue to suffer injury until it is resolved

that Shilling has not infringed and is not infringing any valid claims of the 941 Patent. 19. There exists an actual controversy between Shilling and Arr-Maz of sufficient

immediacy and reality to warrant the issuance of a declaration that Shilling has not infringed and is not infringing any valid claims of the 941 Patent. COUNT II (Declaration That The 941 Patent Is Invalid) 20. Shilling adopts and re-alleges the allegations of paragraphs 1 through 19 of this

Complaint as if fully stated herein. 21. The 941 Patent is invalid under one or more sections of 35 U.S.C. 101, 102,

103, 112 et seq. 22. There exists an actual controversy between Shilling and Arr-Maz of sufficient

immediacy and reality to warrant the issuance of a declaration that the 941 Patent is invalid. JURY DEMAND Shilling hereby demands a jury trial. PRAYER FOR RELIEF WHEREFORE, Shilling prays that it be granted judgment and relief against Arr-Maz, including: A. A declaration that Shilling has not infringed and is not infringing any valid claims of the 941 Patent; B. C. A declaration that the 941 patent is invalid; A declaration that this case is exceptional within the meaning of 35 U.S.C. 285 and awarding Shilling its reasonable attorneys fees and costs.

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Respectfully submitted, /s/ J. Phillip Gragson__________ J. Phillip Gragson, #16103 Amanda Vogelsberg, #23360 Henson, Hutton, Mudrick & Gragson, L.L.P. P.O. Box 3555 100 S.E. 9th St. 2nd Floor Topeka, KS 66601-3555 785 232-2200 (ph); 232-3344 (fax) jpgragson@hensonlawoffice.com avogelsberg@hensonlawoffice.com
ATTORNEYS FOR PLAINTIFF SHILLING CONSTRUCTION COMPANY, INC.

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