esco v. reddig equipment & repairs
TRANSCRIPT
8/3/2019 Esco v. Reddig Equipment & Repairs
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Robert C. Lukes
GARLINGTON, LOHN & ROBINSON, PLLP
350 Ryman Street· P. O. Box 7909
Missoula, MT 59807-7909
Telephone (406) 523-2500
Telefax (406) 523-2595
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ESCO CORPORATION, an Oregon Case No. tV-Il- \ f:::C;- rn D\A...YY'I
corporation,
Plainti ff, . COMPLAINT FOR PATENT
INFRINGEMENT AND DEMAND
v. FOR JURY TRIAL
REDDIG EQUIPMENT & REPAIRS,
INC., a Montana corporation,
Defendant.
COMPLAINT
Plaintiff, ESCO Corporation (HESCO"), by its attorneys, for its complaint
against Defendant, Reddig Equipment & Repairs, Inc. ("REDDIG"), alleges as
follows:
THE PARTIES
1. ESCO is a corporation organized and existing under the laws of the
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State ofOregon, and having corporate headquarters at 2141 NW 25th Avenue,
Portland, Oregon 97210.
2. On information and belief, REDDIG is a corporation organized and
existing under the laws of the State ofMontana, with a place of business at 2866
Highway 2 E, Kalispell, Montana 59901. Its registered agent for service of process
is Billy G. Reddig at the identified address.
JURISDICTION AND VENUE
3. This action is for patent infringement arising under the patent laws of
the United States, 35 U.S.C. §§ 1 et seq.
4. This Court has subject matter jurisdiction over this dispute pursuant to
28 U.S.c. §§ 1331 and 1338(a).
5. This Court has personal jurisdiction over REDDIG because REDDIG
has done, and is doing, business in Montana and in this judicial district. This Court
also has personal jurisdiction over REDDIG because, on information and belief,
REDDIG offers for sale, sells, distributes, and ships products according to the
claims of the patent-in-suit in this district.
6. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(c) and
1400(b) because REDDIG is doing business in this district and because, upon
information and belief, wrongful acts committed by REDDIG have occurred in,
and are causing injury to, ESCO in this district.
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BACKGROUND FACTS
7. ESCO is a leading independent, global developer and manufacturer of
highly engineered wear and replacement products used in resource mining,
infrastructure, power generation, aerospace and industrial applications that are
essential to productivity ofmachines.
8. ESCO was founded in 1913 in Portland, Oregon.
9. For nearly a century, customers have looked to ESCO for productivity
improvements, responsive service, and innovative solutions to their most difficult
problems related to wear, impact, corrosion or heat resistance.
10. Through its Engineered Products Group, ESCO has developed and
manufactured wear parts, including ground engaging tools ("GET") such as
mechanically attached tooth systems, crusher parts, scrap recycling hammers, and
dragline rigging.
11. ESCO mining products are designed and tested to provide quality,
value, and speed for many types of surface and underground hard-rock mining
applications.
12. ESCO has an extensive offering ofpatented GET products.
13. ESCO partners with independent dealers who are throughout the
United States and close to customer operations, to deliver quality ESCO products.
14. ESCO is also focused on direct connection to key mining and
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construction customers through ESCO supply and service locations.
15. ESCO has a team of experienced wear experts at ESCO supply and
service facilities who go on-site with customers and directly connect them to
ESCO product and engineering expertise.
16. ESCO has engineering expertise, in the form of engineering personnel
and laboratories dedicated to the advancement of the science and engineering of
metal wear parts.
17. ESCO engineers include design engineers, new product development
engineers, and associated engineers and engineering managers.
18. ESCO engineers innovate in facilities that include the capabilities of
computer aided design, finite element analysis, rapid prototyping, and
comprehensive testing. ESCO computer aided design models are used in
predictive analysis methods to understand strength, deformation, dynamics, and
flow. ESCO has facilities to test for anticipated load conditions, relative motion of
mating parts, fine impaction, extremes oftemperature, and digging penetration.
19. ESCO engineers are the recipients of the awards ofmany patents on
their innovations in many countries of the world.
20. ESCO values its patents and the innovations they represent.
21. One of the patents awarded ESCO engineers and valued by ESCO is
the patent identified below. The innovative designs protected in the patent are the
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designs of the ESCO Super V® products.
22. ESCO Super V® products are widely known to be patented.
23. ESCO and its engineers consider ESCO to be the innovation leader for
metal wear parts, components, and earthmoving products used in global mining,
construction dredging, and other challenging industrial applications.
24. ESCO wear parts and wear assemblies are manufactured by ESCO and
qualified licensees on many continents and in many countries of the world.
25. ESCO has dealers who depend on their sales ofESCO products in
Montana, including contacts in Billings, Missoula, Columbia Falls, and KalispelL
An example is Modem Machinery, who began business in 1944, and has grown to
provide what it considers to be exceptional product support to the construction,
mining, and forestry industries, in numerous locations in several Western states,
including Montana.
26. ESCO has experienced worldwide instances of disrespect for the
intellectual property ofESCO, which intellectual property protects the innovations
ofESCO engineers, including the importation into the United States of copies of
ESCO products.
27. Those who make, use, sell, offer for sale, import, contribute to, and
encourage products which include the features of one or more ESCO patents are
ESCO "Super V® patent and product infringers."
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28. ESCO enforcement ofESCO intellectual property, including the ESCO
"Super V® patent" is, and has been, necessary to protect ESCO as an ongoing
concern, ESCO innovations, the jobs ofESCO personnel, the interests ofESCO
dealers and customers, and the public, which benefits from ESCO innovations.
Enforcement is by civil action in court because civil actions in courts are the
enforcement mechanisms for these situations.
29. ESCO has protected the "Super V® patent and innovations" that are
the subject of this action against Super V® patent and product infringers
successfully in civil actions such as Nos. 0: 10-cv-60466 in Florida and 1:10-cv
01442 in Georgia. The remedies that have been gained have included admissions
of infringement, damages, irreparable injury, patent validity, and the award of
permanent injunctions.
COUNT I - INFRINGEMENT OF U.S. PATENT NO. 5,469,648
30. On November 28, 1995, the United States Patent and Trademark Office
duly and legally issued U.S. Patent No. 5,469,648 ("the '648 patent") to inventors,
Larren F. Jones et aI., who assigned to ESCO the entire right, title, and interest to
the '648 patent, including all rights to recover for all infringements thereof. A
copy of the '648 patent is attached as Exhibit A.
31. REDDIG has offered to sell, and sold, products such that it has
infringed the '648 patent, products including points for excavating teeth, at least
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some ofwhich were sold under "VxxSYL" designations.
32. ESCO has been damaged by the infringement by REDDIG.
33. Furthennore, the REDDIG acts accused of infringement have been
without express or implied license by ESCO, are in violation ofESCO's rights, and
may continue unless enjoined by this Court.
34. ESCO has been, and will continue to be, irreparably hanned by
REDDIG's infringement of the '648 patent.
DEMAND FOR JURY TRIAL
The Plaintiff hereby demands a trial by jury of all issues so triable.
RELIEF SOUGHT
WHEREFORE, ESCO prays:
A. For an injunction against further infringement of the '648 patent by
REDDIG, its officers, agents, servants, employees, attorneys, and all those persons
in active concert or participation with it or controlled by it;
B. For damages to compensate ESCO for the infringement of the '648
patent, together with prejudgment and post-judgment interest;
C. For an assessment of costs against REDDIG;
D. For treble damages pursuant to 35 U.S.C. § 284 if infringement by
REDDIG has been willful;
E. For judgment that this is an exceptional case under 35 U.S.C. § 285,
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and that REDDIG shall pay to ESCO all its attorneys' fees if infringement has
been willful; and
F. For all such other and further relief as this Court deems just and proper.
DATED this 15th day ofNovember, 2011.
GARLINGTON, LOHN & ROBINSON, PLLP
350 Ryman Street· P. O. Box 7909
Missoula, MT 59807-7909
Telephone (406) 523-2500
Telefax (406) 523-2595
Attorneys for Plaintiff
By:
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