) _____________________________ ) WOLVERINE BRASS, INC.,

Civil Action No. _________________ Jury Trial Demanded

WOLVERINE BRASS, INC.’S ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT Plaintiff, Wolverine Brass, Inc. (“Wolverine”) files this Original Complaint for Declaratory Judgment of Non-Infringement against Kohler Co. (“Kohler”), and respectfully shows the Court as follows: I. 1. PARTIES

Wolverine Brass, Inc. is a corporation organized and existing under the laws of

the State of Delaware, with its principle place of business located at 2951 Hwy. 501 E, Conway, South Carolina 29526. As described in greater detail below, Wolverine has standing to bring this action based upon at least a letter from Kohler of January 25, 2013. (See attached Exhibit A). The letter accuses Wolverine of infringing United States Design Patent No. D529,153, a position that Wolverine disputes, and, thus, creates an actual case and controversy between the parties. 2. Kohler Co. is a corporation existing under the laws of the State of Wisconsin and

maintains its principle place of business at 444 Highland Drive, Kohler, Wisconsin 53044. Kohler sells its products throughout the United States, including South Carolina, and can be



served with process through its registered agent Herbert V. Kohler, Jr., at 444 Highland Drive, Kohler, Wisconsin 53044. II. 3. JURISDICTION AND VENUE

This is a civil action seeking a declaration of non-infringement of United States

Design Patent No. D529,153 (the “’153 Patent”) and, thus, arises under the United States patent laws, 35 U.S.C. § 271 et seq., and is being further brought under the Declaratory Judgments Act, 28 U.S.C. §§ 2201-2202. 4. and 1338(a). 5. Defendant, Kohler, has sufficient contacts with the District of South Carolina to This Court has subject-matter jurisdiction over this matter under 28 U.S.C. § 1331

subject it to the general and specific personal jurisdiction of this Court. Kohler has continuous and systematic activities with South Carolina. For example, Kohler purposefully solicits

business from South Carolina residents by selling its products through its dealers in over approximately 40 locations throughout South Carolina. Moreover, Kohler sent a letter to

Wolverine, a company headquartered in South Carolina, accusing it of infringing the ’153 Patent and demanding that Wolverine make monetary payments to Kohler. In this same letter, Kohler demanded that Wolverine discontinue selling products to South Carolina residents. 6. Venue is proper in the Florence Division of the District of South Carolina

pursuant to 28 U.S.C. § 1391(b)-(c) and Local Court Rule 3.01.



III. 7.

COUNT I – DECLARATORY JUDGMENT OF NON-INFRINGEMENT Wolverine Brass, Inc., has been in business since 1896. Wolverine sells a vast

array of plumbing products, including sinks, faucets, and toilets. With respect to the latter, Wolverine currently sells a particular model under the name Finale Ultimate Toilet. 8. On or about January 25, 2013, Wolverine received a letter from Kohler’s outside

litigation counsel Jeffrey N. Costakos and Kadie M. Jelenchick of the Foley & Lardner LLP law firm (the “Letter”). A true and correct copy of the Letter is attached hereto as Ex. A. The Letter provides that Kohler owns a “number of patents relating to among other things, toilet and tank designs, including U.S. Design Patent No. D529,153.” Kohler further expressly alleged that “Wolverine Brass’s Finale Ultimate Toilet infringes at least the ’153 patent.” 9. Based on Kohler’s allegation of patent infringement against Wolverine, Kohler,

through its outside litigation counsel, made the following demands in the Letter: • “We demand that you immediately stop selling the Finale Ultimate Toilet, and any other similarly styled toilets . . . and remove these products from your website.” (emphasis in original) “We demand that Wolverine Brass provide us with a binding, written undertaking that it agrees to cease and desist from infringing the ’153 patent, and that Wolverine Brass agrees to discontinue all manufacture, sales activity, and distribution of the Infringing Toilets within Wolverine Brass’s control.” “We demand that Wolverine Brass destroy all Infringing Toilets in its possession or control or the possession or control of its agents, servants, and employees, and those in active concert or participation with Wolverine Brass.” “We further demand that Wolverine Brass provide a written itemization detailing both the volume of Infringing Toilets Wolverine Brass has sold during the life of the ’153 patent and the volume of Infringing Toilets Wolverine Brass has destroyed as a result of this letter.”



“[Kohler] will not hesitate to pursue all remedies available to it by law if Wolverine Brass does not adequately compensate Kohler for its infringing activities with respect to the ’153 patent as well as agree to the other demands stated herein.”

In addition to the foregoing, Kohler, through its outside litigation counsel, also expressly stated that any further sales of what Kohler alleges to be “Infringing Toilets” will “cause damages owed to Kohler to increase and may subject Wolverine Brass to charges of willful infringement under 35 U.S.C. §§ 284-85.” 10. Wolverine denies any and all allegations that its Finale Ultimate Toilet, or any

other toilet sold by Wolverine, infringes the ’153 Patent. Similarly, Wolverine denies that it has damaged Kohler in any way or that Kohler is entitled to any compensation as it claims. 11. Because Wolverine denies that its products infringe the ’153, and because

Wolverine refuses to stop selling the Finale Ultimate Toilet, the parties have adverse legal interests of sufficient immediacy and reality that an actual case and controversy exists between Kohler and Wolverine. To resolve the dispute that has arisen, and because all conditions

precedent have been satisfied, Wolverine is entitled to and respectfully requests that the Court enter a judgment declaring that the Finale Ultimate Toilet sold by Wolverine does not in any way infringe the ’153 Patent. IV. 12. EXCEPTIONAL CASE FINDING

Because this matter constitutes an exceptional case under 35 U.S.C. § 285,

Wolverine is entitled an award of its reasonable and necessary attorneys’ fees.



V. 13.


Pursuant to Federal Rule of Civil Procedure 38, Wolverine demands a trial by jury

on all issues triable of right by a jury. PRAYER FOR RELIEF WHEREFORE, Wolverine respectfully requests the following relief: a). That the Court enter a judgment, declaring that the Finale Ultimate Toilet sold by Wolverine Brass, Inc. does not in any way infringe United States Design Patent No. D529,153; b). That the Court declare this to be an exceptional case pursuant to 35 U.S.C. § 285 and award Wolverine its reasonable and necessary attorneys’ fees; c). That Wolverine be awarded its costs; and d). That Wolverine be awarded such other and further relief as the Court deems just and proper. Dated: February 15, 2013 Respectfully submitted: THOMAS & BRITTAIN, P.A.

By: s/ Emma Ruth Brittain Emma Ruth Brittain, Fed. ID No. 4935 Post Office Box 1290 Myrtle Beach, South Carolina 29578 Telephone: (843) 692-2628 Fax: (843) 692-0928 Email: Attorneys for Plaintiff Wolverine Brass, Inc. February 15, 2013 Myrtle Beach, South Carolina



ENDORSEMENT AND CERTIFICATION OF DIVISION I hereby certify that this matter is properly assignable to the United States District Court for the District of South Carolina, Florence Division pursuant to Local Court Rule 3.01(1) & (2).

/s/ Emma Ruth Brittain ___________________



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