IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ FRABILL, INC.

, A Wisconsin Corporation

Plaintiff, v.

Case No. ________________ Jury Trial Demanded

CLAM CORPORATION, A Minnesota Corporation

Defendant. ______________________________________________________________________________ COMPLAINT ______________________________________________________________________________ The Plaintiff, Frabill, Inc., by its undersigned attorneys, as and for its complaint against the Defendant, Clam Corporation, alleges as follows: INTRODUCTION This is an action for patent infringement arising under the patent laws of the United States, 35 U.S.C. 271 and 281, et. seq. THE PARTIES 1. The Plaintiff, Frabill, Inc. (Frabill) is a Wisconsin corporation with its principal

office located at N173 W21121 Northwest Passage, Jackson, Wisconsin 53037. Frabill is a leading manufacturer of gear and equipment for the fishing industry. Frabill has been in business for over seventy (70) years and sells its products through a variety of outlets throughout the world.

2.

Upon information and belief, the Defendant, Clam Corporation (Clam) is a

Minnesota corporation with a principal office located in 15600 28th Avenue North, Plymouth, MN 55447. JURISDICTION AND VENUE 3. This Court has exclusive, original subject matter jurisdiction pursuant to 28

U.S.C. 1331 and 1338(a) because this civil action arises under the Patent Act. 4. This Court has personal jurisdiction over Clam pursuant to Wisconsin's long-arm

statute, Wis. Stat. 801.05(1)(d), because it is engaged in substantial and not isolated activities within this state, including the active and regular conduct of business in the time period immediately preceding this Complaint. 5. This Court has personal jurisdiction over Clam because, inter alia, it has violated

35 U.S.C. 271 by distributing, selling, or offering for sale a product that infringes U.S. Patent No. 7,150,442 within the Eastern District of Wisconsin. Upon information and belief, since the introduction of the infringing product, Clam has systematically and continuously distributed, sold, or offered for sale the infringing product within the Eastern District of Wisconsin. 6. Venue is proper in this judicial district under 28 U.S.C. 1391(b) because of

Clams infringing activities in this state, and under 28 U.S.C. 1391(c) because Clam is subject to personal jurisdiction in this state and has committed acts of infringement in this state. BACKGROUND 7. Frabills patented technology relates to a modular seating system for use in a

portable shelter for ice fishing.

8.

Ice fishing is a cold weather activity. Extended exposure to the elements can spoil

a good day fishing or, worse, be dangerous to an ice fisherman. Therefore, for many years, ice fishermen have used improvised shelters to protect themselves from the elements. 9. Some shelters are, as any visitor to a Midwestern lake in the winter knows,

relatively permanent and immobile. Others are more portable, being towable behind vehicles, snowmobiles, all terrain vehicles or by ice fishermen themselves. 10. Portable ice shelters are highly desirable to ice fishermen who intend to fish in

several areas or who dont want to leave a more permanent structure out on the ice. Enclosed portable shelters with comfortable seating and ample storage are even more desirable. 11. Ice fishing is a very gear-intensive sport. Generally speaking, ice fisherman need

an ice auger, bait bucket, camera, tip-ups, snacks, extra clothing, etc. In view of the amount of gear required and the weight of the gear, a portable shelter with space for accommodating all of the gear required for ice fishing and having a sled-type base suitable for dragging the portable shelter across the ice is highly desirable. 12. Prior ice shelter designs had seats which were difficult to remove or reposition, if

at all, which further limits or restricts access to the storage area located in the base of the ice shelter. 13. Recognizing the problem with prior ice shelters, the inventor, Ryan J. Kleckner,

designed a portable ice shelter with a modular seating system. One advantage of the modular seating system is that the seat mounting system can be folded under the seat when the seat is removed so that it requires less storage space in the base of the ice shelter. An additional advantage is that no tools are required to set up the seats when the ice fishermans destination is

reached. Moreover, unlike prior ice shelters, the seats can be moved to other positions within the base. Additionally, the base and its contents can be accessed while the seats are set up. 14. For his invention, United States Letters Patent No. 7,150,442 (the 442 patent)

entitled Ice Shelter Module Seating System was duly and legally issued to inventor Ryan J. Kleckner on December 19, 2006. A copy of the 442 patent is attached to this Complaint as Exhibit A. 15. 442 patent. 16. Frabill manufactures and sells products that embody the claims of the 442 patent. Frabill is the owner, by assignment, of all right, title, and interest in and to the

Frabill has consistently marked such products with U.S. Patent No. 7,150,442. CLAMS INFRINGING ACTIVITIES 17. Upon information and belief, Clam is offering for sale an ice fishing shelter called

the Voyager TCX that competes with Frabills patented ice shelter. 18. Upon information and belief, Clam has sold, and continues to sell, the Voyager

TCX ice shelter. A copy of Clams Instruction Manual for the Voyager TCX ice shelter is attached to this Complaint as Exhibit B. 19. Exhibit C to this Complaint contains pictures of the seat, seat mount and base

unit of the Voyager TCX ice shelter, which is being offered for sale and sold in the Eastern District of Wisconsin. 20. 21. Clam first became aware of the Voyager TCX ice shelter in February 2011. Frabill has not authorized Clam to make, use, sell, or offer to sell any product

practicing or embodying any claim of any patent owned by Frabill.

FIRST CAUSE OF ACTION Infringement of U.S. Patent No. 7,150,442 22. Plaintiff repeats and realleges the allegations of Paragraphs 1 through 21 above as

if fully set forth herein. 23. Upon information and belief, Clam is selling or offering to sell ice shelters that

use, practice, embody the invention of, or otherwise infringe at least one of the claims of the 442 patent. 24. and willful. 25. As a direct and proximate result of Clams infringement of the 442 patent, Frabill Upon information and belief, Clams infringement of the 442 patent is knowing

is suffering irreparable injury and harm, and unless Clam is enjoined, Frabill will continue to suffer such irreparable injury and harm, for which Frabill has no adequate remedy at law. PRAYER FOR RELIEF WHEREFORE, the Plaintiff, Frabill, Inc., prays that this Court enter judgment in its favor and against Clam Corporation, granting the following relief: A. B. An order declaring that Clam has infringed the 442 patent. An award of damages to Frabill, with interest and costs, compensating Frabill for Clams infringement of the 442 patent. A permanent injunction enjoining Clam, its officers, partners, employees, agents, parents, subsidiaries, affiliates, attorneys, and any one acting or participating with any of them, from manufacturing, making, selling, offering for sale, importing, distributing, or using any product or method that infringes the 442 patent. An award to Frabill of all other such relief the Court may deem just and equitable.

C.

D.

DEMAND FOR A JURY TRIAL Plaintiff, Frabill, Inc., hereby demands a jury trial as to the above cause of action. Dated: September 2, 2011.

s/Matthew R. McClean Matthew R. McClean State Bar No. 1041470 John T. Domaszek State Bar No. 1045877 Joseph S. Heino State Bar No. 1003931 Patrick M. Bergin State Bar No. 1037754 Attorneys for Frabill, Inc. Davis & Kuelthau, s.c. 111 E. Kilbourn Ave. Suite 1400 Milwaukee, WI 53202 414-276-0200 mcclean@dkattorneys.com jdomaszek@dkattorneys.com jheino@dkattorneys.com pbergin@dkattorneys.com

6
N:\DOCS\08008\00634\11070634