calmer et. al. v. tango 4 et. al

8/12/2019 Calmer Et. Al. v. Tango 4 Et. Al.

1/30

1

IN THE UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF ILLINOIS

CALMER CORNHEADS, LLC, an Illinois

Corporation

and

MARION CALMER, a Citizen of Illinois,

Plaintiffs,

vs.

TANGO 4, LLC, a Kentucky Corporation

and

LAWSON MARKETING, INC., a KentuckyCorporation,

Defendants.

CIVIL CASE NO.

JURY TRIAL DEMANDED

COMPLAINT

Plaintiffs Calmer Cornheads, LLC (CCH) and Marion Calmer, (Mr. Calmer andcollectively, Plaintiffs) in filing this Complaint against Defendants Tango 4, LLC (Tango 4)

and Lawson Marketing, Inc. (Lawson Marketing and collectively, Defendants) allege as

follows:

NATURE OF THE ACTION

1. Plaintiffs bring this Complaint for the infringement of U.S. Pat. No. 5,704,202 (the 202

patent) against Defendants. By reason of Defendants infringement and/or willful infringement

of the 202 patent, Plaintiffs are seeking preliminary and permanent injunctive relief, recovery of

Defendants wrongfully made profits, compensatory damages, and trebled damages.

E-FILED Friday, 07 March, 2014 10:46:07 AM

Clerk, U.S. District Court, ILCD


2/30

2

PARTIES

2. Mr. Calmer, individually, and as the inventor/owner of the 202 patent, and as the owner

of CCH, and as the licensor of the rights of the 202 patent, is a citizen of the State of Illinois and

resides in the City of Alpha, in the State of Illinois.

3. CCH is an Illinois Corporation, and the sole and exclusive licensee of the 202 patent,

organized and existing under the laws of the State of Illinois, with its principal place of business

at 3056 700th Avenue, Lynn Center, Illinois 61262.

4. Upon information and belief, Tango 4 is a Kentucky Limited Liability Corporation,

organized and existing under the laws of the State of Kentucky, with its principal place of business at 4968 Point Pleasant Road, Pleasureville, Kentucky 40057.

5. Upon information and belief Tango 4 regularly conducts business in the State of Illinois.

6. Upon information and belief, Lawson Marketing is a Kentucky Corporation, organized

and existing under the laws of the State of Kentucky, with its principal place of business at 395

Briggs Hill Rd., Bowling Green, KY 42101.

7. Upon information and belief, Lawson Marketing regularly conducts business in the State

of Illinois.

JURISDICTION AND VENUE

8. This is a civil action arising primarily under the Patent Act of 1953 codified in Title 35 of

the United States Code 100 et seq .

9. This Court has jurisdiction over the subject matter of Plaintiffs claims pursuant to 28

U.S.C. 1331 (federal question jurisdiction) and 28 U.S.C. 1338 (general jurisdiction for

patent actions).


3/30

3

10. This Court has personal jurisdiction over Defendants by virtue of systematic and

continuous contacts with Illinois and this judicial district.

11. Venue is proper in this Court pursuant to 28 U.S.C. 1391 (c) in that Plaintiffs are subject

to personal jurisdiction in this district and therefore reside in this district.

RELEVANT FACTS

12. Plaintiff Mr. Calmer is the owner and CEO of CCH.

13. Plaintiff Mr. Calmer is the owner and inventor of the 202 patent, a true and accurate

copy of which is attached hereto as Exhibit A , for a universal row unit which allows the use ofone gathering chain per row unit versus two gathering chains per row unit. The advantage of

the protected one-gathering-chain design versus the two-gathering-chains designs of the prior art

is to allow reduction in the spacing between corn rows.

14. Plaintiff CCH is in the business of, inter alia , developing, manufacturing, and selling

cornheads and associated components.

15. Plaintiff CCH, under an exclusive license from and as the sole licensee of Plaintiff Mr.

Calmer, manufactures and sells cornheads that implement and effectuate the designs and that

practice the inventions disclosed in the 202 patent (hereinafter, collectively, 202 Cornheads)

and has invested substantially in the commercialization of such invention under the Calmer

Cornheads brand name.

16. Defendant Tango 4 is a corporation established by multiple Argentine businesses for a

joint sales venture in the United States and is in the business of, inter alia , distributing, selling,

and manufacturing for distribution and sale cornheads and associated components and devices

used for farming.


4/30

4

17. Defendant Tango 4 has sold and/or offered to sell infringing 202 Cornheads, and has

manufactured, and/or outsourced the manufacture to an unauthorized third party of infringing

202 Cornheads.

18. Neither Plaintiff Mr. Calmer nor CCH has authorized Tango 4 as a manufacturer, dealer,

licensee, distributor, or other rights holder of the 202 patent or of any 202 Cornheads, nor are

any authorized manufacturers, dealers, licensees, distributors, or other rights holders authorized

to distribute through or to Tango 4 for the purpose of resale or distribution of any 202

Cornheads.

19. Defendant Tango 4 had actual notice of Mr. Calmers exclusive rights under the 202

patent at least as early as March 31, 2012. On that date, Tango 4 entered into a Confidentiality

and Non-Compete Agreement (NDA) with CCH, a true and accurate copy of which is attached

hereto as Exhibit B , which was executed at Plaintiff CCHs Illinois facility, although the

agreement regarded other of Plaintiff CCHs products not protected by or practicing the 202

patent. Plaintiff Mr. Calmer explicitly alerted Defendant Tango 4 to the patent rights of Mr.

Calmer and CCH under the 202 patent during a brief visit through Plaintiffs facilities at that

time.

20. Defendant Lawson Marketing is in the business of, inter alia , international marketing and

business consulting in the agriculture and farm equipment arenas.

21. On July 2, 2012, Defendant Lawson Marketing issued a press release stating it had

entered into a relationship with Defendant Tango 4 to represent Defendant Tango 4 in the US

and Canada to establish a dealer organization to sell and service the infringing 202 Cornheads

manufactured by Defendant Tango 4, a copy of this press release is attached as Exhibit C . As

recently as February 5, 2014, Defendant Lawson Marketing has stated it has contracted with


5/30

5

various distributors for Defendant Tango 4, including thirteen (13) located in Illinois, two (2) in

Indiana, ten (10) in Iowa, seven (7) in Kentucky, four (4) in Missouri, four (4) in Nebraska, eight

(8) in Ohio, and two (2) in Tennessee. A copy of Lawson Marketings advertisement of its

distribution relationships set up on behalf of Tango 4, updated February 5, 2014, is attached as

Exhibit D .

22. On August 28-30, Defendant Tango 4, either acting itself or through Defendant Lawson

Manufacturing, displayed its infringing 202 Cornheads at the 2012 Farm Progress Show in

Boone, Iowa. Defendant Lawson Manufacturing has stated that since that show, numerous

distributors have contracted with Tango 4 to distribute these infringing 202 Cornheads.23. Neither Plaintiff has not authorized Lawson Marketing as a manufacturer, dealer,

licensee, distributor, or other rights holder of the 202 patent or of any 202 Cornheads, nor are

any authorized manufacturers, dealers, licensees, distributors, or other rights holders authorized

to distribute through or to Lawson Marketing for the purpose of resale or distribution of any 202

Cornheads.

COUNT IINFRINGEMENT OF THE 202 PATENT

24. Plaintiffs repeat and reallege each of the allegations contained in paragraphs 1 through 23

of this Complaint as if fully set forth herein.

25. Upon information and belief, Defendants have made, used, sold, offered for sale, and/or

imported into the United States cornheads that infringe the 202 patent, a true and accurate copy

of which is attached as Exhibit A .

26. Upon information and belief, Defendants cornheads that infringe the 202 patent include,

without limitation, the line of cornheads made and sold using the name Calmer BT Chopper.


6/30

6

27. Upon information and belief, Defendants have infringed, contributed to, and/or induced

infringement of all claims in the 202 patent, 134, by making, using, offering to sell, selling

within the United States and/or importing into the United States cornheads using row units using

a single gathering chain (as defined above as 202 Cornheads).

28. Upon information and belief, Defendant Lawson Manufacturing has infringed,

contributed to, and/or induced infringement of all claims in the 202 patent, 134, by selling, and

or offering to sell within the United States infringing 202 Cornheads using row units using a

single gathering chain manufactured by Tango 4.

29. As a result of proper notice, delivered by proper patent markings on CCHs 202

Cornheads, Defendant Lawson Marketings conduct is considered to be willful and deliberate.

30. As a result of proper notice, delivered by proper patent markings on CCHs 202

Cornheads, and as a result of actual notice effectuated on March 31, 2012 by Defendant Tango

4s visit to the CCH manufacturing facility, direct introduction to the 202 patent and the 202

Cornheads, and execution of the NDA, Defendant Tango 4s conduct is considered to be willful

and deliberate.

31. As a direct and proximate result of Defendants infringement of the 202 patent, Plaintiffs

have suffered and continue to suffer damages, including but not limited to lost profits via sales

redirected to purchases of the infringing units sold by Defendants.

32. Plaintiffs have no adequate remedy at law for the ongoing infringement of the 202 patent

and will be irreparably injured unless Defendants acts of infringement are enjoined by this

Court. Plaintiffs are likely to succeed on the merits, the public interest will be harmed, and a

balance of hardships favor preliminarily enjoining Defendants conduct.


7/30

7

JURY DEMAND

In accordance with Federal Rules of Civil Procedure 38 and 39, Plaintiffs Mr. Calmer and

Calmer Cornheads demand a trial by jury on all issues so triable.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in their favor

and against Defendants, and that Plaintiffs be granted the following relief:

A. Issuance of a preliminary injunction and a permanent injunction restraining Defendant

Tango 4, its officers, agents, servants, attorneys and all persons in active concert or participation

with Tango 4 from further acts of infringement of the 202 patent;

B. Issuance of a preliminary injunction and a permanent injunction restraining Defendant

Lawson Marketing, its officers, agents, servants, attorneys and all persons in active concert or

participation with Lawson Marketing from further acts of infringement of the 202 patent;

C. Entry of an award of damages sufficient to compensate Plaintiffs for Defendants

infringement;

D. Entry of an award of increased damages in an amount not less than three times the

damages found or assessed by this Court for Defendants willful and wanton acts of

infringement;

E. Order Defendants to pay all costs, attorneys fees, and applicable interests; and

F. Grant Plaintiffs such other and further relief as this Court shall deem appropriate.

Dated: March 6, 2014


8/30

8

Respectfully submitted,

/jayrhamilton14923/By:

Jay R. Hamilton 14923

HAMILTON IP LAW, PC201 W. 2 nd Street, Suite 400Davenport, IA 52801Tel: (563) 441-0207Fax: (563) 823-4637

[email protected]

Charles A. Damschen AT002402HAMILTON IP LAW, PCHAMILTON IP LAW, PC201 W. 2 nd Street, Suite 400

Davenport, IA 52801Tel: (563) 441-0207Fax: (563) [email protected]

ATTORNEYS FOR PLAINTIFFSMARION CALMERCALMER CORNHEADS


9/30


10/30

10


11/30

11


12/30


13/30

13


14/30

14


15/30

15


16/30

16


17/30

17

EXHIBIT B CALMER CORN HEADS-TANGO 4 NDA


18/30

18


19/30

19


20/30

20

EHIBIT C LAWSON MARKETING PRESS RELEASE


21/30

21


22/30

22


23/30

23

EXHIBIT D LAWSON MARKETINGS TANGO 4 DEALERS(Pasted from PDF of Website)

Tango4 Contracted Dealers in the U.S. & Canada Illinois

Cole Implement Co. Illinois 116 Media, IL 61460 (309) 924 1191 Farm Pride Arthur 1201 North Vine Street Arthur, IL 61911 (217) 5432 2116 Farm Pride Casey 506 US Highway 40 Casey, IL 62420 (217) 932 2116 Farm Pride Mattoon South Route 45 Mattoon, IL 61938 (217) 234 2105 Farm Pride Newton 9460 East State Hwy 33 Newton, IL 62448 (618) 783 8716 Farm Pride Shelbyville Route 16 West Shelbyville, IL 62565

(217) 774 9541 HDI Equipment Inc. 10337 Rt 78 South Mount Carroll, IL 61053 (815) 541 1973 Sievers Equipment Co., Inc. 406 N. Old Routh 66 Hamel, IL 62046 (618) 633 2622


24/30

24

Sievers Equipment Co., Inc. 8080 State Route 16 Hillsboro, IL 62049 (217) 532 3222 Sievers Equipment Co., Inc. State Route 267 South Greenfield, IL 62044 (217) 368 2486 Sievers Equipment Co., Inc. 1351 W. Jackson St. Auburn, IL 62615 (217) 438 6111 Sievers Equipment Co., Inc. 14464 Shad Rd Carlinsville, IL 62626 (217) 854 3191 TriCo Equipment

1168 East 1500 North Rd. Taylorsville, IL 62568 (217) 287 7411 Indiana Miller Equipment 751 East US 52 Rushville, IN 46173 (765) 932 3986 Miller Equipment 2476 West State Rd 46 Greensburg, IN 47240

(812) 663

2566

Iowa Vetter Equipment 610 14th Ave. South Denison, IA 51442 (712) 263 4637


25/30

25

Vetter Equipment 1871 Hwy. 71 North Audubon, IA 50025 (712) 563 4219 Vetter Equipment 1020 South 12th Street Clarinda, IA 51632 (712) 542 5147 Vetter Equipment 2503 Hwy. 2 East Corydon, IA 50060 (641) 872 2000 Vetter Equipment 2552 Landmark Ave. Ida Grove, IA 51445 (712) 364 3184 Vetter Equipment

9983 Hwy 92 Indianola, IA 50125 (515) 961 2541 Vetter Equipment 1703 W. South St. Mount Ayr, IA 50854 (641) 464 3268 Vetter Equipment 60788 Lincoln Hwy. Nevada, IA 50201 (515) 382 5496

Vetter Equipment

2310 Iowa Ave. Onawa, IA 51040 (712) 423 1069 Vetter Equipment 135 Prairie Rd. Storm Lake, IA 50588 (712) 732 4252


26/30

26

Kentucky McKeel Equipment Co., Inc. 503 Walnut St. Murray, KY 42071 (270) 753 3062 McKeel Equipment Co., Inc. 1939 N. 8th St. Paducah, KY 42001 (270) 444 0110 Hobdy, Dye & Read, Inc. 261 Burnley Rd Scottsville, KY 42164 (270) 622 5105 Hobdy, Dye & Read, Inc. 5317 Nashville Rd. Bowling Green, KY 42101 (270) 796 4105 Hobdy, Dye & Read, Inc. 1410 Hwy. 261 South Hardinsburg, KY 40143 (270) 756 2555 Hobdy, Dye & Read, Inc. 1122 Campbellsville Rd. Columbia, KY 42728 (270) 384 2017 Hobdy, Dye & Read, Inc. 2653 Elizabethtown Rd. Leitchfield, KY 42754

(270) 259 0471 Missouri Don Medlin Company, Inc 1197 St Hwy D Caruthersville, Missouri 63830 (573) 333 0663


27/30

27

Ennis Implement Co. 1117 S. Main Vandalia, MO 63382 (573) 594 6473 Ennis Implement Co. 1250 Littleby Road Mexico, MO 65265 (573) 581 3223 Ennis Implement Co. 580 South Lincoln Drive Troy, MO 63379 (636) 528 8441 Nebraska Kayton International, Inc. 2630 State Hwy 14 Albion, NE 68620 (402) 395 2181 Kayton International, Inc. 3001 South 13th St. Norfolk, NE 68702 (402) 371 3656 Kayton International, Inc. 1211 West 2nd Crofton, NE 68730 (402) 388 4374 Kayton International, Inc. West Hwy. 275 Neligh, NE 68756

(402) 887 4118 Ohio JD Equipment Inc. 1660 US 42 NE London, OH 43140 (614) 879 5767


28/30

28

JD Equipment Inc. 1200 Delmont Road Lancaster, OH 43130 (740) 653 6951 JD Equipment Inc. 1662 US Rt. 62 Washington CH, OH 43160 (740) 335 1484 JD Equipment Inc. 7559 US 68 N. Wilmington, OH 45117 (937) 486 5211 JD Equipment Inc. 219 Columbus Sandusky Rd. N. Marion, OH 43302 (740) 386 5058 JD Equipment Inc.

4394 Northpoint Drive Zanesville, OH 43701 (740) 450 7448 JD Equipment Inc. 4079 Lyman Drive Hilliard, OH 43026 (614) 527 8800 Krystowski Tractor Sales, Inc. 47117 State Route 18 Wellington, OH 44090 (888) 686 4508

Tennessee TriCounty Farmers Equipment, Inc. 206 Parks Street Newbern, TN 38059 (731) 627 2541 TriCounty Farmers Equipment, Inc. 2217 US Hwy 45 ByPass South Trenton, TN 38382 (731) 833 2323


29/30

29

Alberta, Canada Medicine Hat New Holland Ltd. 1625 30 St SW Medicine Hat, AB T1B 3N5 (403) 528 2800 Brooks New Holland Cassils Road W. Brooks, AB T1R OE9 (403) 362 6256 Ontario, Canada Church's Farm Supply Ltd. 3560 7th Line Innisfil, Ontario L9S 3M5 (705) 728 2374 Delta Power Equipment Warwick Twp 6974 Forest Road Warwick Twp, Ontario, Canada NON 1J4 (519) 786 5335 Delta Power Equipment Essex 328 Talbot St. North Essex, Ontario, Canada N8M 2W4 (519) 776 7374 Delta Power Equipment Exeter 615 Main St. South Exeter, Ontario, Canada N0M 1S1

(519) 235 2121 Delta Power Equipment Forest 6974 Forest Road Forest, Ontario Canada N0N 1J4 (519) 786 5335 Delta Power Equipment Seaforth 42787 Hydro Line Road Seaforth, Ontario, Canada N06 (519) 527 0120


30/30

Delta Power Equipment Watford RR#4, 5523 Nauvoo Road Watford, Ontario, Canada N0M 2S0 (519) 849-2744

calmer et. al. v. tango 4 et. al

Documents