IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

DANIEL R. KLOSTER, an individual, Plaintiff, v. PETZL AMERICA, INC., a Utah corporation, and PETZL INTERNATIONAL SAS, a France limited liability company, Defendants.

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Case No.

JURY TRIAL DEMANDED

COMPLAINT Plaintiff, Daniel R. Kloster (Kloster or Plaintiff), for its Complaint against defendants, Petzl America, Inc. and Petzl International SAS (collectively Petzl or Defendants) states and alleges as follows: THE PARTIES 1. Daniel R. Kloster is an individual having a primary residence at 4021

Brookridge Drive, Fairway, Kansas 66205. 2. Upon information and belief, defendant Petzl America, Inc. is a Utah

corporation having its principal place of business at Building M7, Freeport Center, Clearfield, Utah 84016. Petzl can be served with process by serving its registered agent, Cass C. Butler, 10 East South Temple, Suite 900, Salt Lake City, Utah 84133.

3.

Upon information and belief, defendant Petzl International SAS is a

French entity having its principal place of business at 132 rue du pr blanc, Cedex 105A ZI Crolles, 38920 Crolles France. The President of Petzl International SAS is Mr. paul Petzl. 4. Upon information and belief, Defendants sell and distribute, among other

things, a carabiner marketed as the Freino carabiner. JURISDICTION AND VENUE 5. This is an action for patent infringement under the patent laws of the

United States, Title 35 of the U.S. Code. This Court has jurisdiction of the patent claims under at least 28 U.S.C. 1331 and 1338(a). 6. This Court has jurisdiction over Defendants by virtue of the fact that, upon

information and belief, Defendants regularly and continuously transact business in this judicial district. 7. and 1400(b). COUNT I PATENT INFRINGEMENT 1. 2. Kloster incorporates the preceding paragraphs as if set forth in full herein. Kloster is the owner of all right, title and interest in and to United States Venue is proper in this district pursuant to 28 U.S.C. 1391(b) and (c)

Patent No. 5,940,943 (the 943 patent) which duly and legally issued and is in full force and effect. A true and correct copy of the 943 patent is attached hereto as Exhibit A and is hereby incorporated by reference. 3. Upon investigation, the Defendants have made, used, sold and/or offered

to sell carabiners that infringe one or more claims of the 943 patent and/or have actively induced infringement of the 943 patent, and thus, have infringed the 943 patent under

35 U.S.C. 271. More particularly, Defendants displayed and sold or offered to sell said carabiners on multiple pages of their website, including at http://www.petzl.com/en/pro/special-aluminum-carabiners/freino. The infringing products include those identified by Defendants as the Freino carabiner that Defendants have made, used, sold and/or offered to sell in this judicial district and elsewhere in interstate commerce, including via the Internet from the website located at http://www.petzl.com. A true and correct copy of marketing materials available for viewing on Defendants website are attached hereto as Exhibit B and are hereby incorporated by reference. True and correct copies of photographs of the infringing products from Defendants website are attached hereto as Exhibit C and are hereby incorporated by reference. 4. On information and belief Defendants have had actual knowledge of the

943 patent prior to the making, using, selling and/or offers for sale of the infringing products. 5. On information and belief Kloster made a disclosure to PMI-Petzl

Distribution, Inc. (former owner of Petzl America, Inc.) (PMI-Petzel) in the later part of 1998 and said disclosure was confidential in nature and believed by Kloster to be necessary in order for Defendants to examine the commercial potentiality of his new carabiner. During their communications, Kloster sent a nondisclosure agreement to PMIPetzel, which is attached hereto as Exhibit D (the Nondisclosure Agreement). While PMI-Petzel did not provide Kloster with an executed copy of the Nondisclosure Agreement, the parties proceeded in their discussions under an implied nondisclosure agreement.

6.

Nevertheless Defendants deliberately, knowingly and willingly infringed

the 943 patent, thereby causing irreparable harm and damage to Kloster, which damage should be trebled pursuant to 35 U.S.C. 284. 7. On information and belief prior to Plaintiffs execution of the

Nondisclosure Agreement, e-mail correspondence with Loui Clem, technical director for PMI-Petzl Distribution, took place regarding Plaintiffs carabiners. 8. The acts of Defendants constitute willful infringement making this an

exceptional case within the provisions of 35 U.S.C. 285, thereby entitling Kloster to recover its attorneys fees upon prevailing in this action. 9. By reason of Defendants infringement of the 943 patent, Kloster has

been, and will continue to be, damaged irreparably by ongoing infringement unless Defendants are enjoined by this Court from further infringement. COUNT II BREACH OF IMPLIED CONTRACT 10. 11. Kloster incorporates the preceding paragraphs as if set forth in full herein. Section 3 of the Nondisclosure Agreement includes a provision

prohibiting commercial exploitation of Klosters carabiner invention. 12. After receiving the Nondisclosure Agreement from Kloster, PMI-Petzel

reviewed Klosters invention and the Defendants have made, used, sold and/or offered to sell a carabiner covered by Kloster confidential disclosure to PMI-Petzel. PRAYER FOR RELIEF WHEREFORE, Kloster prays that this Court enter judgment in its favor and against Defendants as follows: (a) patent; For entry of a judgment that Defendants have infringed the 943

(b)

For preliminary and permanent injunctions prohibiting Defendants

and their officers, agents, directors and employees, and those in active concert with them, from infringing the 943 patent; (c) For entry of judgment that Defendants have breached the implied

nondisclosure agreement; (c) For an award of damages to Kloster and against Defendants in an

amount sufficient to compensate Kloster for the damage it has suffered by reason of the infringement and breach of the implied nondisclosure agreement; (d) For entry of a finding that Defendants infringement is willful and

that this is an exceptional case entitling Kloster to an award of treble damages under 35 U.S.C. 284 and an award of its reasonable attorneys fees under 35 U.S.C. 285; (e) allowable rate; (f) (g) For an award to Kloster of its costs; and For an award to Kloster of such other and further relief as the For pre-judgment and post-judgment interest at the highest

Court deems to be just and appropriate. Kloster demands a trial by jury of all issues. Kloster designates Kansas City, Missouri as the place of trial.

Respectfully submitted,

/s/ William B. Kircher William B. Kircher Nathan E. Oleen Husch Blackwell LLP 4801 Main Street, Suite 1000 Kansas City, Missouri 64112 Telephone: (816) 983-8000 Facsimile: (816) 983-8080 ATTORNEYS FOR PLAINTIFF DANIEL R. KLOSTER

MO# 18743 MO# 59043

CERTIFICATE OF SERVICE I hereby certify that on August 21, 2012, the foregoing was filed electronically with the above captioned court, with notice of case activity to be generated and sent electronically by the Courts CM/ECF system.

/s/ William B. Kircher