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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE IPS CORPORATION Plaintiff, v.

WCM INDUSTRIES, INC. Defendant. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO.: _____________________________

Jury Trial Demanded

COMPLAINT FOR DECLARATORY RELIEF Plaintiff IPS CORPORATION (hereinafter referred to as “IPS” or “Plaintiff”), for its Complaint against Defendant WCM INDUSTRIES, INC. (hereinafter referred to as “WCM” or “Defendant”), alleges as follows: 1. This is an action for Declaratory Judgment and other relief brought under

the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-02. 2. Plaintiff IPS is a corporation organized and existing under the laws of the

State of California, having a principal place of business at 500 Distribution Parkway, Collierville, Tennessee 38017, and is doing business in this State and District. 3. Upon information and belief, Defendant WCM is a corporation organized

according to Colorado law, having a principal place of business at 2121 Waynoka Road, Colorado Springs, Colorado 80915, and may be served with a summons and complaint at that address. Defendant WCM purports to be the owner of U.S. Patent No. 7,503,083 (hereinafter referred to as “the ’083 patent”) (A copy of the ’083 patent is attached hereto as Exhibit 1).

4.

This Court has jurisdiction over the subject matter of this action on the

following grounds: (a) 28 U.S.C. §§ 1331, this being a civil action arising under the laws of the United States; (b) 28 U.S.C. § 1337(a), this being a civil action arising under an Act of Congress regulating commerce and protecting trade and commerce; and (c) 28 U.S.C. § 1338(a), this being a civil action arising under an Act of Congress relating to alleged patent rights. 5. This Court may declare the rights and other legal relations of the parties in

this case under 28 U.S.C. § 2201, and Rule 57, Fed.R.Civ.P., because an actual and justiciable controversy exists concerning the rights of, and legal relations between, Plaintiff IPS and Defendant WCM. 6. This Court has personal jurisdiction over Defendant WCM consistent with

the principles underlying the U.S. Constitution and Tenn. Code Ann. §§ 20-2-220 – 20-2225 because, among other things, WCM sent demand letters to IPS which is located in this State and District creating in Plaintiff a reasonable apprehension of suit by WCM and because any injury caused to Plaintiff occurred in the State of Tennessee and this District where Plaintiff IPS’s U.S. manufacturing and warehouse operations are headquartered. Further, on information and belief WCM sells its products, including products that it contends are made under the ’083 patent, and otherwise conducts business, in this State and District. 7. Venue is proper in this Court under the provisions of 28 U.S.C. § 1391

and/or § 1400 because, among other things, this is an action arising out of allegations of

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patent infringement and because Plaintiff is in this District and a substantial part of the events giving rise to Plaintiff’s claims occurred in this District, and upon information and belief, Defendant is subject to personal jurisdiction in this District. 8. On or about April 30, 2010, WCM filed a complaint initiating a claim for

patent infringement against American Brass & Aluminum Foundry Company (“AB&A”) alleging that AB&A infringed the ’083 patent through sales of certain flange covers referred to as “Press-In” trim kits, identified by exhibit 2 to WCM’s complaint ( hereinafter referred to as “the 2010 suit”). 9. In or about August 2010, subsequent to WCM’s complaint against AB&A,

IPS acquired AB&A. On or about October 15, 2010, WCM and AB&A entered a settlement agreement resolving WCM’s patent infringement claims against AB&A. As part of the settlement agreement, on or about November 1, 2010, the Court in the 2010 suit entered a stipulated consent judgment enjoining AB&A (including its parents and successors) from “making, using, selling, offering for sale, and importing press in trim kits in the United States of the type specifically shown in Exhibit B of the Complaint and colorable imitations thereof.” 10. Subsequent to entry of the stipulated consent judgment between WCM and

AB&A, IPS began to market and sell a new press-in trim kit product substantially different from the AB&A product that was the subject of the 2010 suit. 11. On or about May 13, 2011, Defendant WCM sent a letter to IPS alleging

that “[t]he ‘new’ press trim kit of IPS … fails to avoid infringement of the ‘083 patent because it infringes at least one claim in the ‘083 patent.” The letter further alleges that “IPS’ ‘new’ press trim product meets each limitation set for the in at least one claim of

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the ‘083 patent and as such, IPS is in violation of the terms of the Consent Judgment.” A copy of WCM’s letter of May 13, 2011, is attached hereto as Exhibit 2. 12. IPS responded to WCM’s allegation that its press-in trim kit product did

not an infringe the ‘083 patent, and that it was not a colorable imitation of the previously accused AB&A product, and thus IPS’s sales of such products did not violate the consent judgment entered by AB&A. However, IPS also indicated to WCM that, “in view of the minimal volume of sales, IPS has decided in an effort to resolve this matter amicably to withdraw its current product from the market …” IPS further stated to WCM that “IPS may or may not introduce a product later with further design modifications.” A copy of IPS’s communication to WCM is attached hereto as Exhibit 3. 13. On or about May 25, 2012, counsel for IPS wrote to counsel for WCM

advising WCM that “IPS has recently redesigned another product that it believes does not infringe the ’083 patent and also does not violate the [consent judgment] …” IPS also advised WCM that “it intends to sell and distribute this new product.” IPS further requested that WCM “advise IPS immediately if [WCM] disagree[s] with IPS’s conclusion.” A copy of IPS’s letter to WCM of May 25, 2012, is attached hereto as Exhibit 4. IPS provided WCM with a sample of its new press-in trim kit (hereinafter referred to as IPS’s “new 2012 press-in trim kit”). 14. After IPS provided WCM’s counsel with a sample of its new press-in trim

kit, on or about June 19, 2012, WCM’s counsel responded to IPS’s counsel stating, “[w]e believe the new IPS press-in trim kit infringes at least claims 1 and 5 of WCM’s U.S. Patent No. ’083. Moreover, the manufacture and sale by IPS of this product would be a

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violation of the Consent Judgment entered in the above referenced ’944 patent.” A copy of WCM’s counsel’s correspondence of June 19, 2012, is attached hereto as Exhibit 5. 15. IPS’s counsel responded by letter dated July 18, 2012, further detailing the

reasons IPS’s new 2012 press-in trim kit does not infringe the ’083 patent, and further explaining why IPS’s sale of the new 2012 press-in trim kit does not violate the consent judgment because, in addition to not infringing the ’083 patent, the new 2012 press-in trim kit is not a colorable imitation of the previously accused AB&A trim kit. A copy of IPS’s counsel’s correspondence of July 18, 2012, is attached hereto as Exhibit 6. 16. WCM’s counsel responded by letter dated July 20, 2012. In that letter,

WCM’s counsel conceded that IPS’s new 2012 press-in trim kit is “different” from the previously accused press-in trim kit, and as such, WCM’s counsel did not accuse the new 2012 press-in trim kit of violating the consent judgment. Nonetheless, WCM’s counsel continued to assert that IPS’s new 2012 press-in trim kit infringes the ’083 patent. WCM’s counsel further suggested that IPS has “decided … [to] take the risk that WCM will take legal action …” Further, WCM’s counsel asserted that “WCM intends to and will aggressively pursue those companies that make and sell any devices that adopt WCM’s unique patented combinations.” A copy of WCM’s counsel’s letter of July 20, 2012, is attached hereto as Exhibit 7. 17. All of the claims of the ’083 patent require, among other things, “a waste

water insert comprising a wall with a cylindrical first portion and a cylindrical second portion with a conical portion therebetween, said cylindrical first portion having a diameter greater than a diameter of said cylindrical second portion, said wall surrounding a cylindrical bore and having an upper end, and a flange on said upper end extending

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outwardly from said cylindrical bore.” IPS’s new 2012 press-in trim kit does not meet at least these claim limitations and others. Accordingly, IPS’s new 2012 press-in trim kit does not infringe any claim of the ’083 patent. 18. There is an actual, substantial, and justiciable controversy between

Plaintiff IPS and Defendant WCM of sufficient immediacy and reality to warrant the rendering of a declaratory judgment by this Court. Defendant WCM has made numerous clear threats against Plaintiff sufficient to create a reasonable apprehension by IPS of suit by WCM concerning its alleged patent rights. Plaintiff is entitled to a judgment declaring its rights as requested herein. COUNT I DECLARATORY JUDGMENT REGARDING ALLEGATIONS OF PATENT INFRINGEMENT 19. Plaintiff incorporates by reference paragraphs 1 through 18 above as if set

forth fully herein. 20. There is an actual, substantial, and justiciable controversy between

Plaintiff IPS and Defendant WCM concerning WCM’s allegations that Plaintiff has infringed any valid claims of the ’083 patent. 21. These allegations place a cloud over Plaintiff’s business activities and will

cause uncertainty among customers, prospective customers, suppliers, and others in the marketplace, likely leading Plaintiff and/or its related entities to lose sales and business opportunities. 22. IPS’s new 2012 press-in trim does not infringe any valid and enforceable

claims of the ’083 patent, as alleged by WCM.

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23.

Plaintiff is entitled to a judgment declaring that any and all making, using,

selling, offering for sale, or importing into the United States of IPS’s new 2012 press-in trim kit by Plaintiff is and has been lawful, and otherwise declaring that Plaintiff has not infringed any valid rights, if any exist, that Defendant WCM may hold in the ’083 patent. 24. As a direct and proximate result of WCM’s allegations of patent

infringement against products made, used, sold, offered for sale, and/or imported into the United States by or for Plaintiff, Plaintiff is suffering irreparable injury to its reputation and goodwill in an amount that cannot presently be ascertained and cannot be compensated adequately by monetary relief alone. WHEREFORE, Plaintiff IPS prays that this Court enter judgment: (a) Declaring that Plaintiff, and including specifically IPS’s new 2012 press-in trim kit made, used, imported, sold and/or offered for sale by or for Plaintiff or its related entities, has not infringed and is not infringing any valid purported patent rights of WCM in the ’083 patent, and otherwise has not violated any provision of the patent laws of the United States; (b) Permanently enjoining WCM, its successors, assigns, and others from asserting the ’083 patent against Plaintiff or its related entities with respect to IPS’s new 2012 press-in trim kit and any other product currently or previously made, used, imported, sold and/or offered for sale by Plaintiff or its related entities; (c) Finding in favor of Plaintiff and declaring this case to be exceptional pursuant to 35 U.S.C. § 285; (d) Awarding Plaintiff its attorneys’ fees and other costs and expenses;

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(e) Awarding interest to Plaintiff to the extent permitted by law; and (f) Awarding to Plaintiff any such further relief as the Court deems just and proper.

PLAINTIFF HEREBY DEMANDS A TRIAL BY JURY ON ALL ISSUES SO TRIABLE. This 9th day of August, 2012. THE PLAINTIFF IPS CORPORATION By: /s/ Bruce S. Kramer Bruce S. Kramer APPERSON CRUMP PLC 6070 Poplar Avenue Suite 600 Memphis, Tennessee 38119 (901) 756-6300 bkramer@appersoncrump.com

Of Counsel: Bruce J. Rose, N.C. Bar No. 20105 ALSTON & BIRD LLP 101 South Tryon Street, Suite 4000 Charlotte, North Carolina 28280-4000 (704) 444-1000 (telephone) (704) 444-1111 (facsimile) bruce.rose@alston.com

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