Esco v. Reddig Equipment & Repairs

8/3/2019 Esco v. Reddig Equipment & Repairs

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Robert C. Lukes

GARLINGTON, LOHN & ROBINSON, PLLP

350 Ryman Street· P. O. Box 7909

Missoula, MT 59807-7909

Telephone (406) 523-2500

Telefax (406) 523-2595

[email protected]

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

ESCO CORPORATION, an Oregon Case No. tV-Il- \ f:::C;- rn D\A...YY'I

corporation,

Plainti ff, . COMPLAINT FOR PATENT

INFRINGEMENT AND DEMAND

v. FOR JURY TRIAL

REDDIG EQUIPMENT & REPAIRS,

INC., a Montana corporation,

Defendant.

COMPLAINT

Plaintiff, ESCO Corporation (HESCO"), by its attorneys, for its complaint

against Defendant, Reddig Equipment & Repairs, Inc. ("REDDIG"), alleges as

follows:

THE PARTIES

1. ESCO is a corporation organized and existing under the laws of the

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mailto:[email protected]




State ofOregon, and having corporate headquarters at 2141 NW 25th Avenue,

Portland, Oregon 97210.

2. On information and belief, REDDIG is a corporation organized and

existing under the laws of the State ofMontana, with a place of business at 2866

Highway 2 E, Kalispell, Montana 59901. Its registered agent for service of process

is Billy G. Reddig at the identified address.

JURISDICTION AND VENUE

3. This action is for patent infringement arising under the patent laws of

the United States, 35 U.S.C. §§ 1 et seq.

4. This Court has subject matter jurisdiction over this dispute pursuant to

28 U.S.c. §§ 1331 and 1338(a).

5. This Court has personal jurisdiction over REDDIG because REDDIG

has done, and is doing, business in Montana and in this judicial district. This Court

also has personal jurisdiction over REDDIG because, on information and belief,

REDDIG offers for sale, sells, distributes, and ships products according to the

claims of the patent-in-suit in this district.

6. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(c) and

1400(b) because REDDIG is doing business in this district and because, upon

information and belief, wrongful acts committed by REDDIG have occurred in,

and are causing injury to, ESCO in this district.

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BACKGROUND FACTS

7. ESCO is a leading independent, global developer and manufacturer of

highly engineered wear and replacement products used in resource mining,

infrastructure, power generation, aerospace and industrial applications that are

essential to productivity ofmachines.

8. ESCO was founded in 1913 in Portland, Oregon.

9. For nearly a century, customers have looked to ESCO for productivity

improvements, responsive service, and innovative solutions to their most difficult

problems related to wear, impact, corrosion or heat resistance.

10. Through its Engineered Products Group, ESCO has developed and

manufactured wear parts, including ground engaging tools ("GET") such as

mechanically attached tooth systems, crusher parts, scrap recycling hammers, and

dragline rigging.

11. ESCO mining products are designed and tested to provide quality,

value, and speed for many types of surface and underground hard-rock mining

applications.

12. ESCO has an extensive offering ofpatented GET products.

13. ESCO partners with independent dealers who are throughout the

United States and close to customer operations, to deliver quality ESCO products.

14. ESCO is also focused on direct connection to key mining and

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construction customers through ESCO supply and service locations.

15. ESCO has a team of experienced wear experts at ESCO supply and

service facilities who go on-site with customers and directly connect them to

ESCO product and engineering expertise.

16. ESCO has engineering expertise, in the form of engineering personnel

and laboratories dedicated to the advancement of the science and engineering of

metal wear parts.

17. ESCO engineers include design engineers, new product development

engineers, and associated engineers and engineering managers.

18. ESCO engineers innovate in facilities that include the capabilities of

computer aided design, finite element analysis, rapid prototyping, and

comprehensive testing. ESCO computer aided design models are used in

predictive analysis methods to understand strength, deformation, dynamics, and

flow. ESCO has facilities to test for anticipated load conditions, relative motion of

mating parts, fine impaction, extremes oftemperature, and digging penetration.

19. ESCO engineers are the recipients of the awards ofmany patents on

their innovations in many countries of the world.

20. ESCO values its patents and the innovations they represent.

21. One of the patents awarded ESCO engineers and valued by ESCO is

the patent identified below. The innovative designs protected in the patent are the

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designs of the ESCO Super V® products.

22. ESCO Super V® products are widely known to be patented.

23. ESCO and its engineers consider ESCO to be the innovation leader for

metal wear parts, components, and earthmoving products used in global mining,

construction dredging, and other challenging industrial applications.

24. ESCO wear parts and wear assemblies are manufactured by ESCO and

qualified licensees on many continents and in many countries of the world.

25. ESCO has dealers who depend on their sales ofESCO products in

Montana, including contacts in Billings, Missoula, Columbia Falls, and KalispelL

An example is Modem Machinery, who began business in 1944, and has grown to

provide what it considers to be exceptional product support to the construction,

mining, and forestry industries, in numerous locations in several Western states,

including Montana.

26. ESCO has experienced worldwide instances of disrespect for the

intellectual property ofESCO, which intellectual property protects the innovations

ofESCO engineers, including the importation into the United States of copies of

ESCO products.

27. Those who make, use, sell, offer for sale, import, contribute to, and

encourage products which include the features of one or more ESCO patents are

ESCO "Super V® patent and product infringers."

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28. ESCO enforcement ofESCO intellectual property, including the ESCO

"Super V® patent" is, and has been, necessary to protect ESCO as an ongoing

concern, ESCO innovations, the jobs ofESCO personnel, the interests ofESCO

dealers and customers, and the public, which benefits from ESCO innovations.

Enforcement is by civil action in court because civil actions in courts are the

enforcement mechanisms for these situations.

29. ESCO has protected the "Super V® patent and innovations" that are

the subject of this action against Super V® patent and product infringers

successfully in civil actions such as Nos. 0: 10-cv-60466 in Florida and 1:10-cv

01442 in Georgia. The remedies that have been gained have included admissions

of infringement, damages, irreparable injury, patent validity, and the award of

permanent injunctions.

COUNT I - INFRINGEMENT OF U.S. PATENT NO. 5,469,648

30. On November 28, 1995, the United States Patent and Trademark Office

duly and legally issued U.S. Patent No. 5,469,648 ("the '648 patent") to inventors,

Larren F. Jones et aI., who assigned to ESCO the entire right, title, and interest to

the '648 patent, including all rights to recover for all infringements thereof. A

copy of the '648 patent is attached as Exhibit A.

31. REDDIG has offered to sell, and sold, products such that it has

infringed the '648 patent, products including points for excavating teeth, at least

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some ofwhich were sold under "VxxSYL" designations.

32. ESCO has been damaged by the infringement by REDDIG.

33. Furthennore, the REDDIG acts accused of infringement have been

without express or implied license by ESCO, are in violation ofESCO's rights, and

may continue unless enjoined by this Court.

34. ESCO has been, and will continue to be, irreparably hanned by

REDDIG's infringement of the '648 patent.

DEMAND FOR JURY TRIAL

The Plaintiff hereby demands a trial by jury of all issues so triable.

RELIEF SOUGHT

WHEREFORE, ESCO prays:

A. For an injunction against further infringement of the '648 patent by

REDDIG, its officers, agents, servants, employees, attorneys, and all those persons

in active concert or participation with it or controlled by it;

B. For damages to compensate ESCO for the infringement of the '648

patent, together with prejudgment and post-judgment interest;

C. For an assessment of costs against REDDIG;

D. For treble damages pursuant to 35 U.S.C. § 284 if infringement by

REDDIG has been willful;

E. For judgment that this is an exceptional case under 35 U.S.C. § 285,

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and that REDDIG shall pay to ESCO all its attorneys' fees if infringement has

been willful; and

F. For all such other and further relief as this Court deems just and proper.

DATED this 15th day ofNovember, 2011.

GARLINGTON, LOHN & ROBINSON, PLLP

350 Ryman Street· P. O. Box 7909

Missoula, MT 59807-7909

Telephone (406) 523-2500

Telefax (406) 523-2595

[email protected]

Attorneys for Plaintiff

By:

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Esco v. Reddig Equipment & Repairs