Case 2:12-cv-01545-RCJ-CWH Document 130 Filed 03/02/15 Page 1 of 14
`
`WATSON ROUNDS
`Michael D. Rounds, Esq. (Nevada Bar No. 4734)
`mrounds@watsonrounds.com
`Adam P. McMillen, Esq. (Nevada Bar No. 10678)
`amcmillen@watsonrounds.com
`Adam Yowell, Esq. (Nevada Bar No. 11748)
`ayowell@watsonrounds.com
`5371 Kietzke Lane
`Reno, Nevada 89511
`Telephone: (775) 324-4100
`Facsimile: (775) 333-8171
`
`BANNER & WITCOFF, LTD.
`Charles W. Shifley (IL. Bar No. 2587564)
`(pro hac vice admitted)
`cshifley@bannerwitcoff.com
`Binal J. Patel (IL. Bar No. 6237843)
`(pro hac vice admitted)
`bpatel@bannerwitcoff.com
`Timothy J. Rechtien (IL. Bar No. 6293623)
`(pro hac vice admitted)
`trechtien@bannerwitcoff.com
`Eric J. Hamp (IL. Bar No. 6306101)
`(pro hac vice admitted)
`ehamp@bannerwitcoff.com
`Ten South Wacker Drive, Suite 3000
`Chicago, Illinois 60606-7407
`Tel: (312) 463-5000
`Fax: (312) 463-5001
`Attorneys for Plaintiffs
`
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEVADA
`
`
`ESCO CORPORATION
`CANADA, LTD.
`
`and ESCO
`
`
`
`
`
`
`
`Plaintiffs,
`
`
`
`
`
`
`Lead Case No.: 2:12-cv-01545-RCJ-CWH
`
`Consolidated Cases: (2:12-cv-01545-RCJ-CWH,
`2:14-cv-529-RCJ-PAL)
`
`AMENDED AND CONSOLIDATED
`COMPLAINT FOR PATENT INFRINGEMENT
`AND DEMAND FOR JURY TRIAL
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`CASHMAN EQUIPMENT COMPANY,
`CATERPILLAR GLOBAL MINING LLC,
`CATERPILLAR, INC., RAPTOR MINING
`PRODUCTS (USA) INC., and RAPTOR
`MINING PRODUCTS INC.
`
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Amended and Consolidated Complaint - 1 of 14
`
`Caterpillar v. ESCO IPR2105-01032
`ESCO Exhibit 2005 Page 1
`
`

`
`Case 2:12-cv-01545-RCJ-CWH Document 130 Filed 03/02/15 Page 2 of 14
`
`
`Pursuant to Order of the Court (Dkt No. 129), Plaintiffs ESCO Corporation (“ESCO”)
`
`and ESCO Canada, Ltd. (“ESCO Canada”) (collectively the “ESCO Parties”), by and through
`
`their undersigned counsel, for their Amended and Consolidated Complaint against Defendants
`
`Cashman Equipment Company (“Cashman”), Caterpillar Global Mining LLC (Caterpillar
`
`Global”), Caterpillar, Inc. (“Caterpillar”), Raptor Mining Products (USA), Inc. (“Raptor USA”),
`and Raptor Mining Products Inc. (“Raptor”) (collectively “Defendants”)1, hereby demand a jury
`trial and allege as follows:
`
`JURISDICTION AND VENUE
`
`1.
`
`This is an action for patent infringement arising under the patent laws of the
`
`United States, 35 U.S.C. § 1 et seq., and particularly 35 U.S.C. § 271 et seq.
`2.
`
`This Court has subject matter jurisdiction over this dispute pursuant to 28 U.S.C.
`
`§§ 1331 and 1338(a).
`3.
`
`This Court has personal jurisdiction over the Caterpillar Defendants because, inter
`
`alia, the Caterpillar Defendants’ products, including the LM Series ground engaging tool system
`
`having the R180 locking system and/or the CapSure® locking system (collectively, the
`
`“Caterpillar Defendants’ locking systems”) and the Mechanically Attached Wear Plate System
`
`(“MAWPS”), have been and are sold in, distributed to and/or shipped into the State of Nevada,
`
`and because upon information and belief the Caterpillar Defendants have done and are doing
`
`business in the State of Nevada. This Court also has personal jurisdiction as a matter of law over
`
`the Caterpillar Defendants because the Caterpillar Defendants filed motions in both actions
`
`consolidated in this action under F.R.C.P. 12, did not include in those motions the defense of
`
`lack of personal jurisdiction, and thereby waived into personal jurisdiction before this Court.
`4.
`
`This Court has personal jurisdiction over the Raptor Defendants because, inter alia,
`
`the Raptor Defendants’ products, including the Predator® system, have been and are sold in,
`
`distributed to and/or shipped into the State of Nevada. Upon information and belief, the Raptor
`
`Defendants have knowingly and intentionally placed their products, including the Predator®
`
`1 Cashman, Caterpillar and Caterpillar Global are collectively referred to herein as “Caterpillar Defendants.” Raptor
`USA and Raptor are collectively referred to herein as “Raptor Defendants.”
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Amended and Consolidated Complaint - 2 of 14
`
`Caterpillar v. ESCO IPR2105-01032
`ESCO Exhibit 2005 Page 2
`
`

`
`Case 2:12-cv-01545-RCJ-CWH Document 130 Filed 03/02/15 Page 3 of 14
`
`system, into the stream of commerce through established distribution channels expecting them to
`
`be shipped into and purchased by customers in this judicial district. This Court also has personal
`
`jurisdiction as a matter of law over the Raptor Defendants because the Raptor Defendants filed
`
`motions in both actions consolidated in this action under F.R.C.P. 12, did not include in those
`
`motions the defense of lack of personal jurisdiction, and thereby waived into personal
`
`jurisdiction before this Court.
`5.
`
`Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)-(c) and
`
`§ 1400(b).
`
`THE PARTIES
`
`6.
`ESCO is a corporation organized and existing under the laws of the State of
`Oregon and having a principal place of business at 2141 N.W. 25th Avenue, Portland, Oregon
`97210.
`7.
`
`ESCO Canada is a corporation organized and existing under the laws of Canada
`
`and having a principal place of business at 2323 Fourth Street, Nisku, Alberta, Canada,
`
`T9E7W7.
`8.
`
`On information and belief, Cashman is a corporation organized and existing under
`
`the laws of Nevada and having a principal place of business located at 3300 St. Rose Parkway,
`
`Henderson, Nevada 89052.
`9.
`
`On information and belief, Caterpillar Global is a corporation organized and
`
`existing under the laws of Delaware and having a principal place of business located at 1
`
`Bucyrus Way, Oak Creek, Wisconsin 53154.
`10.
`
`On information and belief, Caterpillar is a corporation organized and existing
`
`under the laws of Delaware and having a principal place of business located at 100 N.E. Adams
`
`Street, Peoria, Illinois 61629.
`11.
`
`On information and belief, Raptor USA is or was a corporation organized and
`
`existing under the laws of Delaware, one that existed and was not dissolved at least as of the time
`
`of the filing of one of the actions consolidated in this action, 2:12-cv-01545-RCJ-CWH, which is
`
`a time to which this amended and consolidated complaint relates back.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Amended and Consolidated Complaint - 3 of 14
`
`Caterpillar v. ESCO IPR2105-01032
`ESCO Exhibit 2005 Page 3
`
`

`
`Case 2:12-cv-01545-RCJ-CWH Document 130 Filed 03/02/15 Page 4 of 14
`
`
`12.
`
`On information and belief, Raptor is a corporation organized and existing under
`
`the laws of Canada and having a principal place of business located at 15712 112 Avenue N.W.
`
`Edmonton, Alberta, Canada T5M 2W1.
`
`BACKGROUND
`
`13.
`
`ESCO is a leading global developer and manufacturer of highly engineered
`
`ground engaging tools, wear parts and replacement products used in resource mining,
`
`infrastructure, and industrial applications that are essential to the productivity of ESCO
`
`customers’ machines. Amongst many other products, ESCO designs, manufactures, and sells
`
`ground engaging tools.
`14.
`
`ESCO is the owner by assignment of U.S. Patent No. 7,178,274 (“the ‘274
`
`patent”), U.S. Patent No. RE43,693 (“the ‘693 patent”), U.S. Patent No. 8,122,621 (“the ‘621
`
`patent”), U.S. Patent No. 5,241,765 (“the ‘765 patent”), and U.S. Patent No. 8,689,472 (“the
`
`‘472 patent”).
`15.
`
`ESCO Canada is also dedicated to the development and manufacture of highly
`
`engineered wear and replacement products used in resource mining, infrastructure, and industrial
`
`applications that are essential to the productivity of ESCO and ESCO Canada’s customers’
`
`machines.
`16.
`
`‘684 patent”).
`17.
`
`ESCO Canada is the owner by assignment of U.S. Patent No. 7,640,684 (“the
`
`The Caterpillar Defendants manufacture, import, offer to sell, and/or sell the
`
`Caterpillar Defendants’ locking systems and/or MAWPS for heavy machinery as well as
`
`products that incorporate the Caterpillar Defendants’ locking systems and/or MAWPS.
`18.
`
`The Caterpillar Defendants have had knowledge of the ‘684, ‘274, ‘693, ‘621,
`
`‘765, and ‘472 patents.
`19.
`
`On information and belief, the Raptor Defendants have manufactured, imported,
`
`offered to sell, and sold the Predator® system for heavy machinery and equipment for various
`
`uses, and Raptor continues to manufacture, import, offer to sell, and sell the Predator® system
`
`for heavy machinery and equipment for various uses.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Amended and Consolidated Complaint - 4 of 14
`
`Caterpillar v. ESCO IPR2105-01032
`ESCO Exhibit 2005 Page 4
`
`

`
`Case 2:12-cv-01545-RCJ-CWH Document 130 Filed 03/02/15 Page 5 of 14
`
`
`20.
`
`The Raptor Defendants have had knowledge of the ‘684, ‘274, ‘693, and ‘621
`
`patents. Raptor has had knowledge of the ‘472 patent.
`21.
`
`On information and belief, the structure and operation of at least one of the
`
`Caterpillar Defendants’ locking systems and the Predator® system are the same design. On
`
`information and belief, the locking mechanisms utilized in at least one of Caterpillar Defendants’
`
`locking systems and the Predator® system are the same design.
`22.
`
`On information and belief, at least Caterpillar and Raptor have been acting in
`
`concert with one another with respect to the actions complained of herein.
`23.
`
`On information and belief, Cashman has been and still offers for sale and sells the
`
`at least one of Caterpillar Defendants’ locking systems, the Predator® system, and MAWPS for
`
`heavy machinery as well as products that incorporate these systems.
`
`COUNT I – INFRINGEMENT OF U.S. PATENT NO. 7,640,684
`
`24.
`
`Paragraphs 1-23 are realleged and reincorporated by reference as if fully set forth
`
`herein.
`
`25.
`
`On January 5, 2010, the United States Patent and Trademark Office duly and
`
`legally issued the ‘684 patent entitled “Torque Locking System for Fastening a Wear Member to
`
`a Support Structure.” ESCO Canada is the owner of the ‘684 patent by virtue of assignment of
`
`all rights, title, and interest to the ‘684 patent, including all rights to recover for all infringements
`
`thereof. A true and correct copy of the ‘684 patent is attached to this Complaint as Exhibit A.
`26.
`
`On information and belief, the Caterpillar Defendants have been and still are
`
`infringing the ‘684 patent literally, directly, contributorily, by way of inducement, and/or under
`
`the doctrine of equivalents by making, using, offering to sell, selling, and/or importing products
`
`that are covered by one or more valid claims of the ‘684 patent. The past and present infringing
`
`acts include, but are not limited to, manufacturing, importing, offers to sell and/or sales of the
`
`Caterpillar Defendants’ locking systems and their associated products.
`27.
`
`On information and belief, the Raptor Defendants and Cashman have been and,
`
`with the possible exception of Raptor USA, still are infringing the ‘684 patent literally, directly,
`
`contributorily, by way of inducement, and/or under the doctrine of equivalents by making, using,
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Amended and Consolidated Complaint - 5 of 14
`
`Caterpillar v. ESCO IPR2105-01032
`ESCO Exhibit 2005 Page 5
`
`

`
`Case 2:12-cv-01545-RCJ-CWH Document 130 Filed 03/02/15 Page 6 of 14
`
`offering to sell, selling, and/or importing products that are covered by one or more valid claims
`
`of the ‘684 patent. The past and present infringing acts include, but are not limited to,
`
`manufacturing, importing, offers to sell and/or sales of the Predator® system and its associated
`
`products.
`28.
`29.
`
`been willful.
`30.
`
`ESCO Canada has been damaged by the Defendants’ infringement.
`
`On information and belief, the Defendants’ infringement of the ‘684 patent has
`
`The Defendants’ acts of infringement have been without express or implied
`
`license by ESCO Canada, are in violation of ESCO Canada’s rights, and will continue unless
`
`enjoined by this Court.
`31.
`
`ESCO Canada has been and will continue to be irreparably harmed by the
`
`Defendants’ infringement of the ‘684 patent.
`
`COUNT II – INFRINGEMENT OF U.S. PATENT NO. 7,178,274
`
`32.
`
`Paragraphs 1-31 are realleged and reincorporated by reference as if fully set forth
`
`herein.
`
`33.
`
`On February 20, 2007, the United States Patent and Trademark Office duly and
`
`legally issued the ‘274 patent entitled “Coupling Arrangement.” ESCO is the owner of the ‘274
`
`patent by virtue of assignment of all rights, title, and interest to the ‘274 patent, including all
`
`rights to recover for all infringements thereof. A true and correct copy of the ‘274 patent is
`
`attached to this Complaint as Exhibit B.
`34.
`
`On information and belief, the Caterpillar Defendants have been and still are
`
`infringing the ‘274 patent literally, directly, contributorily, by way of inducement, and/or under
`
`the doctrine of equivalents by making, using, offering to sell, selling, and/or importing products
`
`that are covered by one or more valid claims of the ‘274 patent. The past and present infringing
`
`acts include, but are not limited to, manufacturing, importing, offers to sell and/or sales of the
`
`Caterpillar Defendants’ locking systems and their associated products.
`35.
`
`On information and belief, the Raptor Defendants and Cashman have been and,
`
`with the possible exception of Raptor USA, still are infringing the ‘274 patent literally, directly,
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Amended and Consolidated Complaint - 6 of 14
`
`Caterpillar v. ESCO IPR2105-01032
`ESCO Exhibit 2005 Page 6
`
`

`
`Case 2:12-cv-01545-RCJ-CWH Document 130 Filed 03/02/15 Page 7 of 14
`
`contributorily, by way of inducement, and/or under the doctrine of equivalents by making, using,
`
`offering to sell, selling, and/or importing products that are covered by one or more valid claims
`
`of the ‘274 patent. The past and present infringing acts include, but are not limited to,
`
`manufacturing, importing, offers to sell and/or sales of the Predator® system and its associated
`
`products.
`36.
`37.
`
`been willful.
`38.
`
`ESCO has been damaged by the Defendants’ infringement.
`
`On information and belief, the Defendants’ infringement of the ‘274 patent has
`
`The Defendants’ acts of infringement have been without express or implied
`
`license by ESCO, are in violation of ESCO’s rights, and will continue unless enjoined by this
`
`Court.
`
`39.
`
`ESCO has been and will continue to be irreparably harmed by the Defendants’
`
`infringement of the ‘274 patent.
`
`COUNT III – INFRINGEMENT OF U.S. PATENT NO. RE43,693
`
`40.
`
`Paragraphs 1-39 are realleged and reincorporated by reference as if fully set forth
`
`herein.
`
`41.
`
`On October 2, 2012, the United States Patent and Trademark Office duly and
`
`legally reissued the ‘693 patent entitled “Coupling Arrangement.” ESCO is the owner of the ‘693
`
`patent by virtue of assignment of all rights, title, and interest to the ‘693 patent, including all
`
`rights to recover for all infringements thereof. A true and correct copy of the ‘693 patent is
`
`attached to this Complaint as Exhibit C.
`42.
`
`On information and belief, the Caterpillar Defendants have been and still are
`
`infringing the ‘693 patent literally, directly, contributorily, by way of inducement, and/or under
`
`the doctrine of equivalents by making, using, offering to sell, selling, and/or importing products
`
`that are covered by one or more valid claims of the ‘693 patent. The past and present infringing
`
`acts include, but are not limited to, manufacturing, importing, offers to sell and/or sales of the
`
`Caterpillar Defendants’ locking systems and their associated products.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Amended and Consolidated Complaint - 7 of 14
`
`Caterpillar v. ESCO IPR2105-01032
`ESCO Exhibit 2005 Page 7
`
`

`
`Case 2:12-cv-01545-RCJ-CWH Document 130 Filed 03/02/15 Page 8 of 14
`
`
`43.
`
`On information and belief, the Raptor Defendants and Cashman have been and,
`
`with the possible exception of Raptor USA, still are infringing the ‘693 patent literally, directly,
`
`contributorily, by way of inducement, and/or under the doctrine of equivalents by making, using,
`
`offering to sell, selling, and/or importing products that are covered by one or more valid claims
`
`of the ‘693 patent. The past and present infringing acts include, but are not limited to,
`
`manufacturing, importing, offers to sell and/or sales of the Predator® system and its associated
`
`products.
`44.
`45.
`
`been willful.
`46.
`
`ESCO has been damaged by the Defendants’ infringement.
`
`On information and belief, the Defendants’ infringement of the ‘693 patent has
`
`The Defendants’ acts of infringement have been without express or implied
`
`license by ESCO, are in violation of ESCO’s rights, and will continue unless enjoined by this
`
`Court.
`
`47.
`
`ESCO has been and will continue to be irreparably harmed by the Defendants’
`
`infringement of the ‘693 patent.
`
`COUNT IV – INFRINGEMENT OF U.S. PATENT NO. 8,122,621
`
`48.
`
`Paragraphs 1-47 are realleged and reincorporated by reference as if fully set forth
`
`herein.
`
`49.
`
`On February 28, 2012, the United States Patent and Trademark Office duly and
`
`legally issued the ‘621 patent entitled “Wear Assembly.” ESCO is the owner of the ‘621 patent
`
`by virtue of assignment of all rights, title, and interest to the ‘621 patent, including all rights to
`
`recover for all infringements thereof. A true and correct copy of the ‘621 patent is attached to
`
`these this Complaint as Exhibit D.
`50.
`
`On information and belief, the Caterpillar Defendants have been and still are
`
`infringing the ‘621 patent literally, directly, contributorily, by way of inducement, and/or under
`
`the doctrine of equivalents by making, using, offering to sell, selling, and/or importing products
`
`that are covered by one or more valid claims of the ‘621 patent. The past and present infringing
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Amended and Consolidated Complaint - 8 of 14
`
`Caterpillar v. ESCO IPR2105-01032
`ESCO Exhibit 2005 Page 8
`
`

`
`Case 2:12-cv-01545-RCJ-CWH Document 130 Filed 03/02/15 Page 9 of 14
`
`acts include, but are not limited to, manufacturing, importing, offers to sell and/or sales of the
`
`Caterpillar Defendants’ locking systems and their associated products.
`51.
`
`On information and belief, the Raptor Defendants and Cashman have been and,
`
`with the possible exception of Raptor USA, still are infringing the ‘621 patent literally, directly,
`
`contributorily, by way of inducement, and/or under the doctrine of equivalents by making, using,
`
`offering to sell, selling, and/or importing products that are covered by one or more valid claims
`
`of the ‘621 patent. The past and present infringing acts include, but are not limited to,
`
`manufacturing, importing, offers to sell and/or sales of the Predator® system and its associated
`
`products.
`52.
`53.
`
`been willful.
`54.
`
`ESCO has been damaged by the Defendants’ infringement.
`
`On information and belief, the Defendants’ infringement of the ‘621 patent has
`
`The Defendants’ acts of infringement have been without express or implied
`
`license by ESCO, are in violation of ESCO’s rights, and will continue unless enjoined by this
`
`Court.
`
`55.
`
`ESCO has been and will continue to be irreparably harmed by the Defendants’
`
`infringement of the ‘621 patent.
`
`COUNT V – INFRINGEMENT OF U.S. PATENT NO. 5,241,765
`
`56.
`
`Paragraphs 1-55 are realleged and reincorporated by reference as if fully set forth
`
`herein.
`
`57.
`
`On September 7, 1993, the United States Patent and Trademark Office duly and
`
`legally issued the ‘765 patent entitled “Lock Assembly for Wearable Structure.” ESCO is the
`
`owner of the ‘765 patent by virtue of assignment of all rights, title, and interest to the ‘765
`
`patent, including all rights to recover for all infringements thereof. A true and correct copy of
`
`the ‘765 patent is attached to this Complaint as Exhibit E.
`58.
`
`On information and belief, Caterpillar and Cashman were infringing the ‘765
`
`patent literally, directly, contributorily, by way of inducement, and/or under the doctrine of
`
`equivalents by making, using, offering to sell, selling, and/or importing products that are covered
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Amended and Consolidated Complaint - 9 of 14
`
`Caterpillar v. ESCO IPR2105-01032
`ESCO Exhibit 2005 Page 9
`
`

`
`Case 2:12-cv-01545-RCJ-CWH Document 130 Filed 03/02/15 Page 10 of 14
`
`by one or more valid claims of the ‘765 patent. On information and belief, the past infringing
`
`acts include, but are not limited to, manufacturing, importing, offers to sell and sales of
`
`MAWPS® and its associated products.
`59.
`60.
`
`ESCO has been damaged by Caterpillar’s and Cashman’s infringement.
`
`On information and belief, as least Caterpillar’s infringement of the ‘765 patent
`
`was willful.
`61.
`
`Caterpillar’s and Cashman’s acts of infringement were without express or implied
`
`license by ESCO and were in violation of ESCO’s rights.
`
`COUNT VI – INFRINGEMENT OF U.S. PATENT NO. 8,689,472
`
`62.
`
`Paragraphs 1-61 are realleged and reincorporated by reference as if fully set forth
`
`herein.
`
`63.
`
`On April 8, 2014, the United States Patent and Trademark Office duly and legally
`
`issued the ‘472 patent entitled “Wear Assembly.” ESCO is the owner of the ‘472 patent by
`
`virtue of assignment of all rights, title, and interest to the ‘472 patent, including all rights to
`
`recover for all infringements thereof. A true and correct copy of the ‘472 patent is attached to
`
`this Complaint as Exhibit F.
`64.
`
`On information and belief, the Caterpillar Defendants have been and still are
`
`infringing the ‘472 patent literally, directly, contributorily, by way of inducement, and/or under
`
`the doctrine of equivalents by making, using, offering to sell, selling, and/or importing products
`
`that are covered by one or more valid claims of the ‘472 patent. The present infringing acts
`
`include, but are not limited to, manufacturing, importing, offers to sell and/or sales of the
`
`Caterpillar Defendants’ locking systems and their associated products.
`65.
`
`On information and belief, Raptor and Cashman have been and still are infringing
`
`the ‘472 patent literally, directly, contributorily, by way of inducement, and/or under the doctrine
`
`of equivalents by making, using, offering to sell, selling, and/or importing products that are
`
`covered by one or more valid claims of the ‘472 patent. The present infringing acts include, but
`
`are not limited to, manufacturing, importing, offers to sell and/or sales of the Predator® system
`
`and its associated products.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Amended and Consolidated Complaint - 10 of 14
`
`Caterpillar v. ESCO IPR2105-01032
`ESCO Exhibit 2005 Page 10
`
`

`
`Case 2:12-cv-01545-RCJ-CWH Document 130 Filed 03/02/15 Page 11 of 14
`
`
`66.
`67.
`68.
`
`ESCO has been damaged by the Defendants’ infringement.
`
`On information and belief, Defendants’ infringement of the ‘472 patent is willful.
`
`The Defendants’ acts of infringement have been without express or implied
`
`license by ESCO, are in violation of ESCO’s rights, and will continue unless enjoined by this
`
`Court.
`
`69.
`
`ESCO has been and will continue to be irreparably harmed by the Defendants’
`
`infringement of the ‘472 patent.
`
`DEMAND FOR JURY TRIAL
`
`70.
`
`The ESCO Parties have been and will continue to be irreparably harmed by
`
`Defendants’ acts of infringement. Pursuant to Federal Rule of Civil Procedure 38 and the
`
`Seventh Amendment to the Constitution of the United States of America, the ESCO Parties
`
`hereby demand a trial by jury on all issues raised in this action that are so triable.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, the Plaintiff ESCO Parties pray that this Court award to them the
`
`following relief:
`A.
`
`A declaration that Defendants have been and, with the possible exception
`
`of Raptor USA, are still infringing valid claims of the ‘684 patent, ‘274
`
`patent, ‘693 patent, ‘621 patent and ‘472 patent literally, directly,
`
`contributorily, by way of inducement, and/or under the doctrine of
`
`equivalents;
`
`B.
`
`A declaration that Caterpillar and Cashman have infringed valid claims of
`
`the ‘765 patent literally, directly, contributorily, by way of inducement,
`
`and/or under the doctrine of equivalents;
`
`C.
`
`An injunction pursuant to Federal Rule of Civil Procedure 65 that those
`
`subject to the injunction cease and desist from infringing the claims of the
`
`‘684 patent, ‘274 patent, ‘693 patent, ‘621 patent and ‘472 patent literally,
`
`directly, contributorily, by way of inducement, and/or under the doctrine
`
`of equivalents;
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Amended and Consolidated Complaint - 11 of 14
`
`Caterpillar v. ESCO IPR2105-01032
`ESCO Exhibit 2005 Page 11
`
`

`
`Case 2:12-cv-01545-RCJ-CWH Document 130 Filed 03/02/15 Page 12 of 14
`
`
`D.
`
`An Order that Defendants notify purchasers and users of the infringing
`
`products that the products infringe the ‘684 patent, ‘274 patent, ‘693
`
`patent, ‘621 patent, and ‘472 patent, and that Defendants recall all
`
`infringing products sold or otherwise distributed;
`
`E.
`
`An Order directing Defendants to provide an accounting to determine the
`
`damages suffered by Plaintiffs as a result of Defendants’ infringing
`
`conduct before it shall cease and desist, such damages of Plaintiffs
`
`including, but not limited to, their lost profits and no less than a reasonable
`
`royalty;
`
`F.
`
`An Order directing Defendants to pay Plaintiffs the amount of damages
`
`that they have sustained as a result of Defendants’ acts of patent
`
`infringement, and that such damages be trebled for willfulness, pursuant to
`
`35 U.S.C. § 284;
`
`G.
`
`That Plaintiffs be awarded their fees and costs, including their attorneys’
`
`fees pursuant to 35 U.S.C. § 285, and pre-judgment interest and post-
`
`judgment interest; and
`
`H.
`
`That this Court award Plaintiffs such other and further relief as the Court
`
`deems just and proper.
`Dated this 2nd day of March, 2015
`
`
`
`WATSON ROUNDS
`
`
`
`/s/ Eric J. Hamp
`MICHAEL D. ROUNDS, Nevada Bar No. 4734
`ADAM P. MCMILLEN, Nevada Bar No. 10678
`ADAM YOWELL, Nevada Bar No. 11748
`5371 Kietzke Lane
`Reno, Nevada 89511
`Tel: (775) 324-4100
`Fax: (775) 333-8171
`
`And
`
`BANNER & WITCOFF, LTD.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Amended and Consolidated Complaint - 12 of 14
`
`Caterpillar v. ESCO IPR2105-01032
`ESCO Exhibit 2005 Page 12
`
`

`
`Case 2:12-cv-01545-RCJ-CWH Document 130 Filed 03/02/15 Page 13 of 14
`
`
`Charles W. Shifley (IL. Bar No. 2587564)
`(pro hac vice admitted)
`cshifley@bannerwitcoff.com
`Binal J. Patel(IL. Bar No. 6237843)
`(pro hac vice admitted)
`bpatel@bannerwitcoff.com
`Timothy J. Rechtien (IL. Bar No. 6293623)
`(pro hac vice admitted)
`trechtien@bannerwitcoff.com
`Eric J. Hamp (IL. Bar No. 6306101)
`(pro hac vice admitted)
`ehamp@bannerwitcoff.com
`
`Ten South Wacker Drive, Suite 3000
`Chicago, Illinois 60606-7407
`Tel: (312) 463-5000
`Fax: (312) 463-5001
`
`Attorneys for Plaintiffs
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Amended and Consolidated Complaint - 13 of 14
`
`Caterpillar v. ESCO IPR2105-01032
`ESCO Exhibit 2005 Page 13
`
`

`
`Case 2:12-cv-01545-RCJ-CWH Document 130 Filed 03/02/15 Page 14 of 14
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on March 2, 2015 a true and correct copy of the
`
`foregoing AMENDED AND CONSOLIDATED COMPLAINT
`
`FOR
`
`PATENT
`
`INFRINGEMENT AND DEMAND FOR JURY TRIAL will be served upon all counsel of record
`
`who are registered participants via electronic mail through the United States District Court’s
`
`CM/ECF system.
`
`
`
`DATED March 2, 2015
`
`
`
`
`
`
`
`/s/ Eric J. Hamp
`
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Amended and Consolidated Complaint - 14 of 14
`
`Caterpillar v. ESCO IPR2105-01032
`ESCO Exhibit 2005 Page 14