Case 4:13-cv-00026-JHP-PJC Document 2 Filed in USDC ND/OK on 01/14/13 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

1.

MARCO INDUSTRIES, INC., an Oklahoma Corporation, Plaintiff,

v. 2 LEVIS NAILS & SCREWS, LP, a Pennsylvania Limited Partnership, Defendant.

) ) ) ) ) ) ) ) ) ) )

Case No. 13-CV-26-JHP-PJC

COMPLAINT Plaintiff Marco Industries, Inc. (Marco), for its Complaint against Defendant Levis Nails & Screws, LP (Levis), states and alleges as follows. NATURE OF THE ACTION

1.

This is an action to prevent and enjoin Levis from infringing, in an illegal and

unauthorized manner and without authorization or consent from Marco, U.S. Patent No. 8,276,331, and to recover damages, attorneys fees, and costs. JURISDICTION AND VENUE

2.

This is an action for patent infringement arising under the patent laws of the

United States, 35 U.S.C. 1 et seq. Accordingly, this Court has exclusive subject matter jurisdiction pursuant to 28 U.S.C. 1331 and 1338.

3.

Upon information and belief, Levis is subject to this Courts general and specific

personal jurisdiction by virtue of its systematic and continuous contacts with the State of Oklahoma and the Northern District of Oklahoma, and pursuant to due process and/or the Oklahoma Long Arm Statute. Levis has purposefully availed itself of the privileges of

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conducting business in the State of Oklahoma and the Northern District of Oklahoma. Marcos cause of action arises directly from Levis business contacts and other activities in the State of Oklahoma and the Northern District of Oklahoma.

4.

Venue is proper in this judicial district under 28 U.S.C. 1391 and 1400(b). As

alleged herein, Levis offers to transact, transacts, or has transacted business in this judicial district, or has committed or induced acts of patent infringement in this district by making, using, offering for sale or selling infringing products. Plaintiff Marco has its principal place of business in this judicial district. PARTIES

5.

Plaintiff Marco is a corporation organized and existing under the laws of the State

of Oklahoma, with its principal place of business located at 9410 East 54th Street, Tulsa, Oklahoma 74145. Marco designs and manufactures products for the metal building industry. It is the owner by assignment of the patent at issue.

6.

Upon information and belief, Defendant Levis is a limited partnership organized

and existing under the laws of the State of Pennsylvania, with its principal place of business located at 137 Newport Road, Leola, Pennsylvania 17540. Levis is a wholesale supplier of, among other things, roofing accessories such as roofing ridge vents. FACTUAL BACKGROUND

7.

Plaintiff incorporates by reference the allegations of paragraphs 1-6 of this

Complaint, as though fully set forth herein.

8.

Marco was founded in Tulsa nearly twenty years ago with the mission of Since then, Marcos

providing innovative products to metal construction customers.

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commitment to innovation has earned it industry-wide recognition, including two Top 10 Products awards from Rural Builder magazine.

9.
Patent).

Marco is the owner by assignment of U.S. Patent No. 8,276,331 (the `331

10.

The `331 Patent, entitled Ventilated Roof System with Ridge Vent, was duly

and legally issued on October 2, 2012. The `331 Patent, in general, provides for a permeable barrier which, when installed on the ridge of a roof, inhibits the passage of rain and insects while allowing air to freely pass through. A copy of the `331 Patent is attached as Exhibit A.

11. 12.

Pursuant to 35 U.S.C. 282, the `331 Patent is presumed valid. Levis, on information and belief, manufactures, uses, and sells roofing

accessories,1 including, but not limited to, the FastVent Metal Roofing Ridge Vent (the FastVent).2 The FastVent infringes at least claim 15 of the `331 Patent. By manufacturing, using, offering to sell and/or selling the FastVent, and/or inducing others to manufacture, use, and/or sell the FastVent, Levis has directly and indirectly infringed and continues to directly and indirectly infringe at least claim 15 of the `331 Patent, either literally or under the doctrine of equivalents.

13.

Accordingly, Levis acts of infringement of the `331 Patent have injured Marco,

entitling Marco to an injunction and to recover damages adequate to compensate it for Levis acts of infringement, in no event less than a reasonable royalty.

1 2

http://www.levisnailsandscrews.com/index.php http://www.levisnailsandscrews.com/fastvent.php

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FIRST CAUSE OF ACTION (INFRINGEMENT OF THE `331 PATENT)

14.

Plaintiff incorporates by reference the allegations of paragraphs 1-13 of this

Complaint, as though fully set forth herein.

15.

Upon information and belief, Levis has infringed and continues to infringe one or

more of the claims of the `331 Patent pursuant to 35 U.S.C. 271(a), including but not limited to claim 15 of the `331 Patent, literally or under the doctrine of equivalents, by making, using, selling, and/or offering to sell the FastVent without authority in the State of Oklahoma, this judicial district, and elsewhere in the United States.

16.

Upon information and belief, Levis has induced and actively continues to induce

infringement of one or more of the claims of the `331 Patent pursuant to 35 U.S.C. 271(b), including but not limited to claim 15 of the `331 Patent, by encouraging purchasers of the FastVent in the State of Oklahoma, this judicial district, and elsewhere in the United States, to make and/or use the FastVent. Levis acts of encouragement include, but are not limited to making its product readily available online. These purchasers using of the invention claimed in the `331 Patent constitutes infringement, literally or under the doctrine of equivalents, of one or more claims of the `331 Patent. Levis has had knowledge of the `331 Patent since at least shortly after October 10, 2012, or at least as of the service of this Complaint.

17.

To the extent facts learned in discovery show that Levis infringement of the

`331 Patent has been and is willful, Marco reserves the right to request such a finding, and appropriate relief based thereon, at the time of trial.

18.

As a result of Levis direct and indirect infringement of the `331 Patent, Marco

has suffered and will continue to suffer monetary damages in an amount not yet determined.

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19.

Unless a permanent injunction is issued enjoining Levis and its agents, servants,

employees, representatives, affiliates, and all others acting in active concert therewith from infringing the `331 Patent, Marco will suffer great and irreparable harm for which no adequate remedy at law exists. PRAYER FOR RELIEF WHEREFORE, Marco respectfully requests that this Court enter: A. A judgment in favor of Marco declaring that Levis has directly and indirectly

infringed the `331 Patent; B. A permanent injunction enjoining Levis and its officers, directors, agents,

servants, affiliates, employees, divisions, subsidiaries, parents, and all others acting in active concert therewith from directly or indirectly infringing the `331 Patent; C. A judgment and order requiring Levis to pay Marco its damages, costs, expenses,

and pre-judgment and post-judgment interest for Levis direct and indirect infringement of the `331 Patent; D. An award to Marco, pursuant to 35 U.S.C. 284, for enhanced damages resulting

from the knowing, deliberate, and willful nature of Levis infringing conduct with notice made at least as early as the date of service of this Complaint; E. A judgment and order finding that this is an exceptional case within the meaning

of 35 U.S.C. 285 and awarding Marco its reasonable attorneys fees; and F. Such other and further relief as this court may deem just and proper. DEMAND FOR JURY TRIAL Pursuant to Federal Rule of Civil Procedure 38, Marco respectfully requests a trial by jury on all issues so triable.

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Dated January 14, 2013.

Respectfully submitted, s/Mary L. Lohrke R. Tom Hillis, OBA #12338 Mary L. Lohrke, OBA #15806 TITUS HILLIS REYNOLDS, LOVE, DICKMAN & McCALMON 15 E. 5th St., Suite 3700 Tulsa, Oklahoma 74103 Telephone:(918) 587-6800 Facsimile: (918) 587-6822 E-mail: thillis@titushillis.com E-mail: mlohrke@titushillis.com Stephen D. Bell (seeking admission pro hac vice) Case Collard (seeking admission pro hac vice) DORSEY & WHITNEY LLP 1400 Wewatta Street, Suite 400 Denver, Colorado 80202-5549 Telephone:(303) 629-3400 Facsimile: (303) 629-3450 E-mail: bell.steve@dorsey.com E-mail: collard.case@dorsey.com ATTORNEYS FOR PLAINTIFF MARCO INDUSTRIES, INC.