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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

EXCEL INDUSTRIES, INC., a Kansas corporation, Plaintiff, v. MTD PRODUCTS INC., a Delaware corporation, Defendant.

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Case No. 2:13-cv-2630 JURY TRIAL DEMANDED

COMPLAINT AND DEMAND FOR JURY TRIAL COME NOW, Excel Industries, Inc. (Plaintiff) for its complaint against defendant MTD Products, Inc. (Defendant) and states as follows: THE PARTIES 1. Plaintiff Excel Industries, Inc. (Excel) is a corporation organized and

existing under the laws of the State of Kansas, with its principal business located at 200 South Ridge Road, P.O. Box 700, Hesston, Kansas 67062-2097. 2. Defendant MTD Products Inc. (MTD) is a for-profit corporation

organized and existing under the laws of the State of Delaware, with its principal place of business located at 5965 Grafton Road, Valley City, Ohio 44280. Upon information and belief, Defendant is in the business of selling products in interstate commerce, including sales in the State of Kansas and this District.

JURISDICTION AND VENUE 3. The Court may exercise subject matter jurisdiction over the claims set

forth in this complaint pursuant to 28 U.S.C. 1338. 4. The Court may exercise personal jurisdiction over Defendant in this

action on the grounds that, upon information and belief: (a) Defendant has committed acts of patent infringement in the State of Kansas; and (b) Defendant does business in the State of Kansas directly, through authorized distributors and dealers, and by advertising and supporting its products over the Internet, including in Kansas, through its website http://www.mtdproducts.com/equipment/mtdproducts. 5. Service of process on Defendant in this action will be effected pursuant

to Fed. R. Civ. P. 4(h). 6. 1400(b). FIRST CLAIM FOR RELIEF (Patent Infringement) 7. On August 20, 2002, United States Letters Patent No. 6,434,917 was Venue is proper in this district pursuant to 28 U.S.C. 1391(c) and

duly and legally issued to Harlan J. Bartel of Newton, Kansas for the invention MOWER WITH COMBINED STEERING AND BRAKE LEVERS (hereinafter the 917 Patent). (A true and correct copy of the 917 Patent is attached hereto as Exhibit 1.) Mr. Harlan J. Bartel has assigned all rights, title, and interest in the 917 Patent to Excel. By virtue of the assignment, Excel is the owner of the 917 Patent and has the right to recover damages for past and future infringement thereof.

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8.

Defendant has infringed and continues to infringe the 917 Patent by

making, using, selling, and/or importing products embodying the patented invention, inducing others to make, use, sell, and/or import products embodying the patented invention, and/or by contributing to the manufacture, use, sale, and/or importation of products embodying the patented invention. 9. Defendants infringement of the 917 Patent has caused Plaintiff

monetary harm in an amount to be proved at trial. In addition, unless restrained, Defendants continued infringement of the 917 Patent will cause Plaintiff irreparable harm for which there is no adequate remedy at law. 10. Plaintiffs products embodying the patented invention have properly

been marked with references to the 917 Patent. 11. Upon information and belief, Defendant has known of the 917 Patent,

but has continued to infringe the 917 Patent and thus has knowingly and willfully infringed the 917 Patent in disregard of Plaintiffs rights. SECOND CLAIM FOR RELIEF (Patent Infringement) 12. On May 4, 2004 United States Letters Patent No. 6,729,115 was duly

and legally issued to Harlan J. Bartel of Newton, Kansas for the invention MOWER WITH COMBINED STEERING AND BRAKE LEVERS (hereinafter the 115 Patent) (a true and correct copy of the 115 Patent is attached hereto as Exhibit 2). Mr. Harlan J. Bartel has assigned all rights, title, and interest in the 115 Patent to Excel. By virtue of the assignment, Excel is the owner of the 115 Patent and has the right to recover damages for past and future infringement thereof.

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13.

Defendant has infringed and continues to infringe the 115 Patent by

making, using, selling, and/or importing products embodying the patented invention, inducing others to make, use, sell, and/or import products embodying the patented invention, and/or by contributing to the manufacture, use, sale, and/or importation of products embodying the patented invention. 14. Defendants infringement of the 115 Patent has caused Plaintiff

monetary harm in an amount to be proved at trial. In addition, unless restrained, Defendants continued infringement of the 115 Patent will cause Plaintiff irreparable harm for which there is no adequate remedy at law. 15. Plaintiffs products embodying the patented invention have properly

been marked with references to the 115 Patent. 16. Upon information and belief, Defendant has known of the 115 Patent,

but has continued to infringe the 115 Patent and thus has knowingly and willfully infringed the 115 Patent in disregard of Plaintiffs rights. Prayer for Relief for First Claim WHEREFORE, Plaintiff prays for: (a) an order finding that Defendant has infringed the 917 Patent; (b) an accounting for and an award of damages, including lost profits, resulting from Defendants infringement, and/or reasonable royalties for such infringement pursuant to 35 U.S.C. 284; (c) a trebling of Plaintiffs damages because of the knowing, willful, and wanton nature of Defendants conduct;

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(d) an assessment of interest, both prejudgment and post judgment, on the damages awarded; (e) a finding of this case to be exceptional and an award of attorneys fees incurred by Plaintiff in this action pursuant to 35 U.S.C. 285; (f) a preliminary and permanent injunction against Defendants continued infringement of the 917 Patent; (g) an order directing that all goods in the possession, custody, or control of Defendants that infringe the 917 Patent be delivered up and destroyed within thirty (30) days of entry of judgment; (h) an award of Plaintiffs costs in bringing and prosecuting this action; and (i) such other and further relief as the Court deems just and proper. Prayer for Relief for Second Claim WHEREFORE, Plaintiff prays for: (a) an order finding that Defendant has infringed the 115 Patent; (b) an accounting for and an award of damages, including lost profits, resulting from Defendants infringement, and/or reasonable royalties for such infringement pursuant to 35 U.S.C. 284; (c) a trebling of Plaintiffs damages because of the knowing, willful, and wanton nature of Defendants conduct; (d) an assessment of interest, both prejudgment and post judgment, on the damages awarded;

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(e) a finding of this case to be exceptional and an award of attorneys fees incurred by Plaintiff in this action pursuant to 35 U.S.C. 285; (f) a preliminary and permanent injunction against Defendants continued infringement of the 115 Patent; (g) an order directing that all goods in the possession, custody, or control of Defendants that infringe the 115 Patent be delivered up and destroyed within thirty (30) days of entry of judgment; (h) an award of Plaintiffs costs in bringing and prosecuting this action; and (i) such other and further relief as the Court deems just and proper. DEMAND FOR JURY TRIAL Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands a jury trial on all issues DESIGNATION OF PLACE OF TRIAL Plaintiff designates Kansas City, Kansas as the place of trial. Respectfully submitted,

By: /s/ James J. Kernell James J. Kernell, #19559 Arthur A. Chaykin, #13184 Kent R. Erickson, #14927 ERICKSON, KERNELL, DERUSSEAU & KLEYPAS, LLC 8900 State Line Road, Suite 500 Leawood, Kansas 66206 Telephone: (913) 549-4700 Facsimile: (913) 549-4646 Email: jjk@kcpatentlaw.com aac@kcpatentlaw.com kre@kcpatentlaw.com

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Robert O. Blinn, #12182 LAW OFFICE OF ROBERT O. BLINN 125 North Market Street, Suite 1100 Wichita, Kansas 67202 Telephone: (316) 263-6400 Facsimile: (316) 263-5491 Email: rblinn@robertblinn.com Attorneys for Plaintiff Excel Industries, Inc.

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