IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION

SWIVELPOLE GROUP (USA) LLC Plaintiff, Civil Action No. ________ v. DEMAND FOR JURY TRIAL SWIVELPOLE USA, LTD.; ILS PRODUCTS, LLC; AND ILS MANUFACTURING, LLC Defendants.

ORIGINAL COMPLAINT Plaintiff Swivelpole Group (USA) LLC (“Swivelpole Group”), by its attorneys, Baker Botts L.L.P., file its complaint against Defendants Swivelpole USA Ltd, ILS Products LLC, and ILS Manufacturing LLC (collectively, “Defendants”). In support of this Complaint, Swivelpole Group would respectfully show the Court as follows: I. THE PARTIES 1. Plaintiff Swivelpole Group is a Texas corporation with a principal place of

business at 12 Greenway Plaza, Suite 200, Houston, Texas, 77046. 2. Defendant Swivelpole USA, Ltd. is a Texas limited partnership. Walker

Eisenbraun LLC is the registered agent and 2500 E TC Jester Blvd., Suite 190, Houston, TX 77008 is the registered address. Swivelpole USA, Ltd. has a place of business at 17315 Houston Dr., Cypress, TX 77433. 3. Defendant ILS Products, LLC is a Texas limited liability company whose

certificate of formation identifies Walker LLC as the initial registered agent and 2500 E TC
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Jester Blvd., Suite 190, Houston, TX 77008 as the company’s initial registered office. ILS Products, LLC has a place of business at 17315 Houston Dr., Cypress, TX 77433. 4. Defendant ILS Manufacturing, LLC is a Texas limited liability company whose

certificate of formation identifies Walker LLC as the initial registered agent and 2500 E TC Jester Blvd., Suite 190, Houston, TX 77008 as the company’s initial registered office. ILS Manufacturing, LLC has a place of business at 17315 Houston Dr., Cypress, TX 77433. II. JURISDICTION AND VENUE 5. This action arises under the patent laws of the United States, 35 U.S.C. § 271, et

seq. Jurisdiction in this Court over this cause of action is proper pursuant to 28 U.S.C. §§ 1331 and 1338 and 35 U.S.C. § 1, et seq. 6. The Court has jurisdiction over Defendants Swivelpole USA, Ltd., ILS Products

LLC, and ILS Manufacturing LLC because each is incorporated in the State of Texas, is doing business in the State of Texas, and is amenable to service by a Texas court. 7. Venue is proper in the Eastern District of Texas under 28 U.S.C. §§ 1391(b) and

1400(b) because the acts and transactions constituting the violations alleged herein, occurred in part in this judicial district and the Defendants transact business in this judicial district. Venue is also proper in this district under 28 U.S.C. § 1391(c) because Defendants are entities that are subject to personal jurisdiction in this district. III. FACTUAL BACKGROUND 8. Affiliates of Swivelpole Group, based in Australia, design and market poles for

industrial lighting. The core of Swivelpole Group’s business is its Swivelpole® high-safety light mounting system.

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9.

Swivelpole Group’s founder, Robert Pannekoek, developed the technology behind

the Swivelpole® products in the late 1990s and early 2000s. Prior to the development of the Swivelpole® products, installing, inspecting, and maintaining lighting fixtures in industrial sites such as a processing plant traditionally required workers to use scaffolds, elevated working platforms, or ladders to achieve the height necessary to get access to the fixtures. Any of these approaches runs the risk of accidents or, tragically, death. In addition, the cost of maintaining hundreds of lights on a mine site or plant can be considerable and implementing the planned replacement of lamps can result in entire sections of the facility having to be shut down. 10. The design of the Swivelpole® products eliminates the risk of working at heights

by providing users the ability to bring the light fixtures down to them rather than having to take the risk of working at heights to gain access to the fixtures. The system allows workers to gently lower the top of a pole to a safe working position through the use of a patented hinge mechanism in the center of the light pole. In this manner, the Swivelpole® light mounting system is designed to provide maximum benefit with minimal effort, in the process enhancing workplace safety, reducing costs, and avoiding facility shutdown time. 11. United States Patent 6,957,832 (“the ’832 Patent”) entitled “Elongate Member

with Interconnected Rotatable Portions” duly and legally issued on October 25, 2005, based upon an application filed on October 4, 2000 by Robert John Pannekoek. Swivelpole Patent Pty Ltd. is the owner by assignment of the title and interest in the ’832 Patent. A copy of the ’832 Patent is attached hereto as Exhibit A. 12. Swivelpole Group (USA) LLC holds an exclusive license to the ’832 Patent that

includes the rights to make, have made, use, sell, or offer for sale in the United States, and import into the United States, products that practice the ’832 Patent.

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A. 13.

License Agreement and the Parties’ Relationship In late 2009, Swivelpole Group Pty Ltd.—operating at the time under the name

“Safe Swivel Technology Pty Ltd.” and holding a license to the ’832 Patent—entered into negotiations with Michael Walton, Ken DeCoursey, Michael Thompson, and Andrew Grant to license the Swivelpole™ products in the United States. Messrs Walton, DeCoursey and

Thompson are directors of an entity called “1503902 Alberta Ltd.” The negotiations resulted in a licensing agreement whereby Swivelpole Group Pty Ltd. would permit 1503902 Alberta Ltd. to market, manufacture, and sell Swivelpole® products within the United States. 14. The terms of the licensing agreement are set forth in the Technology and Trade

Mark License (“the Agreement”) attached as Exhibit B. The Agreement permitted the licensee to sell Swivelpole® products and pay Swivelpole Group Pty Ltd. a royalty for each sale. Under the Agreement, Swivelpole Group Pty Ltd. provided 1503902 Alberta Ltd. with a license to the ’832 Patent, technical know-how and assistance, as well as marketing support. The Agreement provided that any improvements to this technology remained the exclusive property of Swivelpole Group Pty Ltd. 15. The Agreement permitted 1503902 Alberta Ltd. to assign its rights and

obligations under the Agreement on a one-time basis. On information and belief, 1503902 Alberta Ltd. assigned its rights and obligations under the Agreement to Swivelpole USA Ltd, which is referred to herein as “SUSA.” 16. From late 2009 until July 11, 2012 (the “Licensing Period”), SUSA marketed,

manufactured (or had manufactured), and sold Swivelpole® products within the United States. 17. During the Licensing Period, Swivelpole Group affiliates provided technical Part of this assistance came in the form of providing SUSA with

assistance to SUSA.

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confidential and proprietary information related to the Swivelpole® products, such as manufacturing procedure guidelines, design and product drawings, and manufacturing jigs. Swivelpole Group affiliates also sent engineers to visit SUSA facilities. The Swivelpole Groupaffiliated engineers instructed the employees of SUSA regarding the manufacture of Swivelpole® products and the technical material that Swivelpole Group affiliates previously provided. 18. SUSA was obligated under the Agreement to pay Swivelpole Group Pty Ltd. a

royalty for the sale of each Swivelpole® product. B. 19. Termination of the Agreement In late 2011 through early 2012, Swivelpole Group affiliates conveyed to SUSA

their concern that SUSA was not abiding by the terms of the Agreement. 20. Despite Swivelpole Group affiliates’ efforts to resuscitate its business relationship

with SUSA, the relationship continued to deteriorate. Starting in or about January 2012, SUSA ceased paying royalties to Swivelpole Group Pty Ltd. for sales of Swivelpole® products occurring after that date as required by the Agreement. 21. On June 6, 2012, Swivelpole Group affiliates provided formal notice to SUSA

that it was in breach of the Agreement for failing to meet the minimum performance requirements. The letter also provided the 30-day notice of intention to revoke the Agreement if SUSA did not cure its breach. 22. The Swivelpole Group affiliates received no response from SUSA. On July 11,

2012, the Swivelpole Group affiliates formally terminated the Agreement as the result of SUSA’s ongoing breach of the Agreement. 23. After the termination of the Agreement, Swivelpole Group (USA) LLC received

an exclusive license to practice the ’832 Patent in the United States. Pursuant to the license,

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Swivelpole Group (USA) LLC and its licensees, and only Swivelpole Group (USA) LLC and its licensees, are permitted to manufacture, use, sell, offer for sale, and import products covered by the ’832 Patent in the United States. C. 24. Swivelpole USA’s Covert Activity During the last several months of the Licensing Period, SUSA and/or its manager

Andrew Grant engaged in covert efforts to start a business to compete with Swivelpole Group using Swivelpole Group’s own confidential and proprietary technology. 25. On May 15, 2012, while the Agreement was still in effect, a certificate of

formation was filed in the name of ILS Products LLC. SUSA and ILS Products LLC have the same manager, Andrew Grant. They also have the same place of business, 17315 Houston Dr., Cypress, TX 77433. On information and belief, ILS Products LLC is an alter-ego of SUSA that is intended to carry on the same business under a different name. On information and belief, ILS Manufacturing LLC manufactures or assists in the manufacture of components, particularly poles, used in the infringing lighting assemblies sold and offered for sale by ILS Products LLC.

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IV.

CAUSE OF ACTION FOR PATENT INFRINGEMENT 26. 27. Swivelpole Group incorporates by reference Paragraphs 1 through 25 above. Defendants have infringed, either literally or under the doctrine of equivalents, the

’832 Patent, in violation of 35 U.S.C. §§ 271 by making, using, offering to sell, selling, and/or importing into the United States products that include all of the limitations of one or more claims of the ’832 patent, including PivotPole products. 28. Additionally or alternatively, Defendants have indirectly infringed and continue to

indirectly infringe the ’832 Patent by actively inducing direct infringement by others, such as third-party distributors, of one or more of the claims of the ’832 Patent in violation of 35 U.S.C. § 271(b) and contributorily infringing one or more claims of the ’832 Patent by supplying PivotPole products to others, such as third-party distributors, that sell products which infringe the ’832 Patent in violation of 35 U.S.C. § 271(c). For example, on information and belief,

Defendants have instructed or directed third-party distributors to offer to sell and/or sell infringing products which incorporate the PivotPole products to end-user customers in this District and elsewhere. Defendants performed these acts despite their actual knowledge of the ’832 Patent, of which Defendants had actual notice at least as of December 2009, by which time Mr. Walton had executed the Agreement licensing the ’832 Patent to 1503902 Alberta Ltd. SUSA marketed Swivelpole® products under the Agreement, knowing that the ’832 Patent covered those Swivelpole® products. Defendants developed the infringing PivotPole products in an effort to compete with the Swivelpole® products only after Agreement was signed. Defendants were aware the PivotPole product they were developing was just as much subject to the ‘832 Patent as the Swivelpole® products SUSA marketed under the Agreement. Defendants’ PivotPole products infringe the ’832 Patent and have no substantial non-infringing uses.

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29.

Defendants had actual notice of the aforementioned valid patent rights owned by

Swivelpole Group at least as of December 2009 and have nevertheless proceeded with their infringement in willful disregard of Swivelpole Group’s patent rights in an objectively reckless manner. 30. In view of the above-described acts, Swivelpole Group is entitled to recover from

Defendants up to three times its actual damages pursuant to 35 U.S.C. § 284 and to an award of attorneys fees pursuant to 35 U.S.C. § 285. 31. As a proximate result of Defendants’ actions, Swivelpole Group has been

damaged by Defendants’ direct infringement, contributory infringement and/or inducement of infringement by others of the ’832 Patent, and will continue to be damaged in the future unless Defendants are enjoined from such infringement. V. DEMAND FOR JURY 32. Swivelpole Group hereby demands a jury trial of all issues so triable, pursuant to

Rule 38 of the Federal Rules of Civil Procedure. VI. PRAYER FOR RELIEF For these reasons, Plaintiff Swivelpole Group respectfully requests: (1) A judgment that Defendants have infringed the ’832 Patent under all applicable

provisions of Title 35, United States Code; (2) A judgment and order requiring Defendants to pay Swivelpole Group its actual

and compensatory damages resulting from Defendants’ infringing activities, including treble damages for willful infringement, as provided by 35 U.S.C. § 284.

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(3)

A judgment and order finding this to be an exceptional case and requiring

Defendants to pay the costs of this action (including all disbursements) and attorneys’ fees as provided by 35 U.S.C. § 285; (4) A judgment and order that Defendants, their officers, directors, employees, agents

and all those acting in concert with Defendants be enjoined, pursuant to 35 U.S.C. §283, from all future activities infringing the ’832 Patent, and/or inducing or contributing to the infringement of the ’832 Patent; (5) A judgment and order requiring Defendants to pay Swivelpole Group

prejudgment and post judgment interest; and (6) Such other and further relief as the Court deems just and equitable.

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DATED: April 5, 2013

Respectfully submitted,

By : /s/ Paul R. Morico Paul R. Morico Texas Bar No. 00792053 paul.morico@bakerbotts.com Danny David Texas Bar No. 24028267 danny.david@bakerbotts.com Lisa Kelly Texas Bar No. 24041659 lisa.kelly@bakerbotts.com Thomas Rooney Texas Bar No. 24065996 thomas.rooney@bakerbotts.com BAKER BOTTS L.L.P. One Shell Plaza 910 Louisiana Street Houston, Texas 77002 Telephone: 713.229.1732 Facsimile: 713.229.7732

ATTORNEYS FOR PLAINTIFF SWIVELPOLE GROUP (USA) LLC

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