IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI ST.

JOSEPH DIVISION

) ) ) ) Address: 3501 S. Leonard Rd. ) St. Joseph, Missouri 64503 ) ) Plaintiff, ) ) vs. ) ) INTERSTATE LIFT & EQUIPMENT ) COMPANY, INC. ) a Michigan corporation ) ) Serve: Patricia S. Nichols ) Registered Agent ) 897 Randall Ave. ) Niles, Michigan 49120 ) ) and ) ) PATRIOT LIFTS & EQUIPMENT, INC. ) a New York corporation ) ) Serve: Phillip J. Welch ) C.E.O. ) 640 North Winton Road ) Rochester, New York 14609 ) ) and ) ) PJ INDUSTRIAL SUPPLY, INC. ) a New York corporation ) ) Serve: Jeffrey J. Welch ) C.E.O. ) 640 North Winton Road ) Rochester, New York 14609 ) ) and ) 1

GRAY MANUFACTURING COMPANY, INC., a Missouri corporation

Case No. 5:12-CV-06015

PHILIP J. WELCH 5 Northfield Gate Pittsford, New York 14534 and DENNIS NICHOLS 897 Randall Ave. Niles, Michigan 49120-3943 and PATRICIA S. NICHOLS 897 Randall Ave. Niles, Michigan 49120-3943 and TODD A. NICHOLS 1001 Ruth Lane Niles, Michigan 49120-3943 Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

COMPLAINT Plaintiff, Gray Manufacturing Company, Inc., by and through its counsel, for its Complaint against Defendants Interstate Lift & Equipment Company, Inc., Patriot Lifts and Equipment, Inc., PJ Industrial Supply, Inc., Phillip J. Welch, Dennis Nichols, Patricia Nichols and Todd A. Nichols, states and alleges as follows:

Type of Action: 1. This action is brought under the patent laws of the United States, Title 35, United

States Code, 35 U.S.C. 100, et seq.

2.

Gray Manufacturing Company, Inc. (Gray Manufacturing) is the owner of

certain patents covering wireless portable lift systems used in the automotive, truck, heavy-duty truck, and service vehicle industries, upon which Defendants are infringing.

Parties: 3. Gray Manufacturing is a family-owned, Missouri corporation with its principal

place of business located at 3501 S. Leonard Road, St. Joseph, Missouri. Gray Manufacturing is in the business of designing, manufacturing, marketing, selling, and servicing professional shop service equipment, including jacks and lifting equipment for the automotive, truck, heavy-duty truck, and service vehicle industries. Prior to October 1, 2006, Gray Manufacturing was named Gray Automotive Products Co. 4. Defendant Interstate Lift & Equipment Company, Inc. (Interstate Lift) is a

Michigan corporation located at 1001 Ruth Lane, Niles, Michigan 49120 and is in the business of manufacturing, distributing, importing, exporting, marketing, offering for sale, and selling commercial vehicle lifts for the automotive industry, including but not limited to, the Patriot M18PC-4-2B-KS mobile lift system with the MS-Wireless Option which infringes on the Gray Patents (defined in Paragraph 29 of the Complaint below). 5. Defendant Patriot Lifts & Equipment, Inc. (Patriot Lift) is a New York

corporation located at 640 North Winton Road, Rochester, New York 14609 and is in the business of manufacturing, distributing, importing, exporting, marketing, offering for sale, and selling commercial vehicle lifts for the automotive industry, including but not limited to, the Patriot M18PC-4-2B-KS mobile lift system with the MS-Wireless Option which infringes on the Gray Patents.

6.

Defendant PJ Industrial Supply, Inc. (PJ Industrial) is a New York corporation

located at 640 North Winton Road, Rochester, New York 14609 and is in the business of manufacturing, distributing, importing, exporting, marketing, offering for sale, and selling commercial vehicle lifts for the automotive industry, including but not limited to, the Patriot M18PC-4-2B-KS mobile lift system with the MS-Wireless Option which infringes on the Gray Patents. 7. Defendant Phillip J. Welch is an individual residing at 5 Northfield Gate,

Pittsford, New York 14534. Defendant Phillip J. Welch is chairman of Defendant Patriot Lift. Defendant Phillip J. Welch is also president of Defendant PJ Industrial. 8. Michigan Defendant Dennis Nichols is an individual residing at 897 Randall Ave., Niles, 49120-3943. Defendant Dennis Nichols is president of Defendant Patriot Lift.

Defendant Dennis Nichols is vice-president of Defendant Interstate Lift. 9. Defendant Patricia Nichols is an individual residing at 897 Randall Ave., Niles,

Michigan 49120-3943. Defendant Patricia Nichols is president of Defendant Interstate Lift. 10. Defendant Todd A. Nichols is an individual residing at 1001 Ruth Lane, Niles,

Michigan 49120. Defendant Todd Nichols is vice-president and general manager of Defendant Interstate Lift.

The Cooperation Among Defendants To Infringe: 11. Upon information and belief, Defendant Interstate Lift, Defendant Patriot Lift,

Defendant PJ Industrial, Defendant Phillip J. Welch, Defendant Dennis Nichols, Defendant Patricia Nichols and Defendant Todd Nichols cooperated together and worked in concert to

directly infringe upon the Gray Patents, to induce each other to infringe upon the Gray Patents and/or to contribute to the direct infringement of the Gray Patents. 12. Upon information and belief, Defendant Interstate Lift, Defendant Patriot Lift and

Defendant PJ Industrial are acting in concert at all times relevant herein with joint objectives that included directly infringing upon the Gray Patents, to induce each other to infringe upon the Gray Patents and/or to contribute to the direct infringement of the Gray Patents, such that the act or omission of one of the Defendants is and was in the act or omission of the other. 13. Upon information and belief, the Welch/Nichols Defendants are effectively

utilizing their control of the corporate entities to play a shell game in an attempt to avoid liability for direct infringement of the Gray Patents. Upon information and belief, the Welch/Nichols Defendants and the corporations they control, namely Defendant Interstate Lift, Defendant Patriot Lift and Defendant PJ Industrial have intentionally cooperated to directly infringe upon the Gray Patents, to induce each other to infringe upon the Gray Patents and/or to contribute to the direct infringement of the Gray Patents. 14. Upon information and belief, the Welch/Nichols Defendants and the corporations

they control, namely Defendant Interstate Lift, Defendant Patriot Lift and Defendant PJ Industrial are working in concert to actively inducing the other to take actions to complete certain infringing activity that infringes on the Gray Patents. 15. Upon information and belief, the Welch/ Nichols Defendants personally took part

in the commission of infringement of the Gray Patents and/or specifically directed other officers, agents or employees of Defendant Interstate Lift, Defendant Patriot Lift and Defendant PJ Industrial to commit infringement of the Gray Patents and/or induced or approved the acts of others to infringe upon the Gray Patents. Upon information and belief, the Welch/Nichols

Defendants intended that the Gray Patents be infringed by the corporate entities.

Upon

information and belief, the Welch/Nichols Defendants knowingly aided and abetted with the corporate entities infringement of the Gray Patents. Upon information and belief the

Welch/Nichols Defendants were the moving and active forces behind the infringement by the corporate entities. Upon information and belief, the Welch/Nichols Defendants possessed a specific intent to encourage infringement of the Gray Patents by the corporate entities they owned, operated and/or controlled.

Alter Ego: 16. Upon information and belief, Defendant Interstate Lift, Defendant Patriot Lifts

and Defendant PJ Industrial are wholly owned, operated, controlled and dominated by each other such that their corporate existence, if any, is the alter ego of each other. Upon information and belief, Defendant Interstate Lift, Defendant Patriot Lift and Defendant PJ Industrial have identical or similar ownership and management. Furthermore, upon information and belief, Defendant Interstate Lift, Defendant Patriot Lift and Defendant PJ Industrial conduct business as one entity, jointly under the names of each other and fail to maintain any required corporate formalities such that their separate corporate identities, if any, should be ignored. 17. Upon information and belief, Defendant Phillip J. Welch, Defendant Dennis

Nichols, Defendant Patricia Nichols and Defendant Todd Nichols (collectively referred to herein as Welch/Nichols Defendants) own and operate and have control over Defendants Interstate Lift, Defendant Patriot Lift and Defendant PJ Industrial. Upon information and belief the Welch/Nichols Defendants completely control and dominate the finances, policies and business practices of Defendants Interstate Lift, Patriot Lift and PJ Industrial such that the corporate

existence of such entities should be ignored and individual liability should attach to the Welch/Nichols Defendants. Upon information and belief, one or more of the following elements exists justifying the Court in piercing the corporate veil of Defendant Interstate Lift, Defendant Patriot Lift and Defendant PJ Industrial and imposing personal liability on the Welch/Nichols Defendants: a. b. c. d. e. The entities are undercapitalized; Corporate formalities have not been observed; Dividends have not been paid; Corporate funds have been diverted to the Welch/Nichols Defendants; Corporate funds are comingled between the entities and with the

Welch/Nichols Defendants; f. g. Expenses and losses between the entities are shared or comingled; The officers and directors of the corporate entities, if any, are

nonfunctioning and/or controlled by the Welch/Nichols Defendants; h. i. Corporate records are not kept or are deficient; The entities are used as a faade for the operations of each other and/or the

Welch/Nichols Defendants; j. k. The entities are used to promote injustice or fraud; The Welch/Nichols Defendants use the corporate entities to commit fraud

or wrongdoing and to take dishonest and unjust actions in contravention of and infringement of the Gray Patents; 18. Piercing the corporate veil of the corporate entities is necessary as a matter of

equity in order to prevent fraud, illegality, injustice and/or a contravention of public policy.

Jurisdiction and Venue: 19. 20. This Court has subject-matter jurisdiction under 28 U.S.C. 1338(a). This Court has personal jurisdiction of the parties and venue is proper in this Defendants engage in business in

District under 28 U.S.C. 1391(b)-(d) and 1400(b).

Missouri, in this District, and in the St. Joseph Division, including but not limited to, by offering to sell and selling their products therein.

General Allegations: 21. United States Patent No. 6,634,461 (hereinafter the 461 Patent), entitled

Coordinated Lift System, was duly and legally issued by the United States Patent and Trademark Office (the Patent Office) on October 21, 2003. 22. Gray Manufacturing, on August 4, 2005, filed a Request for Reissue of its 461

Patent in which Gray Manufacturing sought Patent Office review of the validity of the claims of the 461 patent in view of additional prior art of which Gray Manufacturing recently had become aware. Subsequent thereto, and concurrently with the reissue proceeding, the Patent Office also conducted a reexamination of the 461 Patent. 23. On August 24, 2010, the Patent Office concluded the reissue of the 461 Patent

and issued to Gray Manufacturing Reissued Patent No. RE41,554 (the 554 Reissue Patent). On May 17, 2011, the Patent Office issued Reexamination Certificate U.S. 6,634,461 C1, (the Reexam Certificate) which sustained the validity of claims 16, 19, 21 25, 27, 28, 30, 44, and 46 51 of the 554 Reissue Patent. The Patent Office mistakenly attached the Reexam

Certificate to the 461 Patent. However, on November 2, 2011, the Patent Office approved the

issuance of a Certificate of Correction to rectify this error and to attach the Reexam Certificate to the 554 Reissue Patent. 24. A true and accurate copy of the 554 Reissue Patent is attached hereto as Exhibit

A and made a part hereof by reference as though fully set forth herein. A true and accurate copy of the Reexam Certificate is attached hereto as Exhibit B and made a part hereof by reference as though fully set forth herein. 25. Patent. 26. United States Patent No. 7,014,012 (hereinafter the 012 Patent), also entitled Gray Manufacturing owns all right, title and interest in and to the 554 Reissue

Coordinated Lift System, was duly and legally issued by the Patent Office on March 21, 2006. 27. 28. Gray Manufacturing owns all right, title and interest in and to the 012 Patent. A true and accurate copy of the 012 Patent is attached hereto as Exhibit C and

made a part hereof by reference as though fully set forth herein. 29. Gray Manufacturing has designed and is now actively engaged in the

manufacturing, marketing and sale of products covered by the 554 Reissue and 012 Patents, including Gray Manufacturing Model WPLS-160 Wireless Portable Lift System, throughout the United States and North America. Collectively the 554 Reissue and the 012 Patents are referred to herein as the Gray Patents. 30. Gray Manufacturing has and continues to mark all its wireless portable lift

systems marketed and sold throughout the United States and North America with their corresponding patent numbers. Upon information and belief, Defendants have been aware of the Gray Patents for years as a result of reference to the Gray Patents on Grays wireless portable lift systems.

31.

On or about October 16, 2006, Defendant Patriot Lift, through Defendant Phillip In that letter,

J. Welch, wrote Gray Manufacturing and acknowledged the Gray Patents.

Defendant Patriot Lift by and through Defendant Phillip J. Welch wrote: Thank you for forwarding a copy of U.S. Patent No. 7,014,012. In regards to this patent, and our offer to enter into a Licensing Agreement, we have not yet fully evaluated our ability to sell and/or distribute wireless lift systems in view of this patent. 32. On November 2, 2006, Defendant Patriot Lift, through Defendant Phillip J.

Welch, wrote Gray Manufacturing and indicated that Defendant Patriot Lift desired to enter into an agreement with Gray Manufacturing to allow Defendant Patriot Lift to sell wireless mobile column lifts. On November 27, 2006, Gray Manufacturing indicated to Defendant Patriot Lift that Gray Manufacturing was not interested in an agreement with Defendant Patriot Lift with respect to wireless mobile column lifts. No agreement was reached between Gray

Manufacturing and Defendant Patriot Lift to allow Defendant Patriot Lift to sell wireless mobile column lifts. 33. Upon information and belief, despite the fact that Defendant Patriot Lift

acknowledged knowledge of the Gray Patents, requested a licensing agreement to allow it to manufacture wireless mobile column lifts covered by the Gray Patents, but was not able to reach an agreement to do so, Defendant Patriot Lift began marketing and/or offering to sell and/or selling wireless mobile column lifts as early as 2006. 34. On or about October 12, 2009, Gray Manufacturing sent a letter to Defendant

Patriot Lift, c/o Defendant Phillip J. Welch, requesting that Defendant Patriot Lift cease and desist from manufacturing and/or selling a wireless mobile column lift.

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35.

On or about October 13, 2009, Defendant Patriot Lift, by letter authored by

Defendant Phillip J. Welch indicated that Defendant Patriot Lift would be interested in discussing a license agreement with Gray Manufacturing covering the Gray Patents. 36. On or about October 12, 2009, Gray Manufacturing sent a letter to Defendant

Interstate Lift c/o Defendant Todd A. Nichols, requesting that Defendant Interstate Lift cease and desist from manufacturing and/or selling a wireless mobile column lift. 37. On or about October 12, 2009, Defendant Interstate Lift, by letter authored by

Defendant Todd Nichols, stated, among other things, that Defendant Patriot Lift manufactured a battery operated mobile column lift with a wired connection between columns for communication and then denied that its system infringed upon the Gray Patents. Upon

information and belief, the system utilized by Defendant Interstate Lift is a conversion kit that allows the column lifts manufactured by Defendant Patriot Lift to be converted to wireless communication between the columns in violation of the Gray Patents. 38. Defendants refused to cease and desist from the business of manufacturing,

distributing, importing, exporting, marketing, offering for sale, and selling the a wireless mobile column lift which infringes on the Gray Patents. 39. Defendants are also actively marketing their infringing product on their website

and its sales representatives are authorized to and do in fact offer to sell the infringing products in Missouri, in this District, and in the St. Joseph Division. 40. Defendants directly and through their authorized representatives, have offered to

sell the infringing product in Missouri, in this District, and in the St. Joseph Division.

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Liability: COUNT I Infringement of the 554 Reissue Patent Against Defendants COMES NOW Gray Manufacturing, and for its first cause of action against Defendants, states and alleges as follows: 41. 1 through 40. 42. Defendants, without authority to do so, have directly and indirectly infringed and Gray Manufacturing incorporates by reference as though fully set forth herein,

continue to infringe on the 554 Reissue Patent in violation of 35 U.S.C. 271 by making, using, importing, offering to sell, and selling wireless mobile column lifts. The infringement is active and ongoing, and occurring within and outside of this judicial District. 43. Defendants are aware of their infringement, but nevertheless continue to directly

and indirectly infringe on the 554 Reissue Patent. 44. Defendants direct and indirect infringement of the 554 Reissue Patent, upon

information and belief, has been willful and in conscious disregard of Gray Manufacturings rights. 45. As a direct and proximate result of Defendants infringement of the 554 Reissue,

Gray Manufacturing has been damaged and is entitled to recover damages from Defendants under 35 U.S.C. 284. 46. Gray Manufacturing does not have an adequate remedy at law. It is now, and will

in the future be, irreparably harmed and damaged by Defendants infringement unless this Court enjoins Defendants from continuing their infringement under 35 U.S.C. 283.

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COUNT II Infringement of the 012 Patent Against Defendants COMES NOW Gray Manufacturing, and for its first cause of action against Defendants, states and alleges as follows: 47. 1 through 40. 48. Defendants, without authority to do so, have directly and indirectly infringed and Gray Manufacturing incorporates by reference as though fully set forth herein,

continue to infringe on the 012 Patent in violation of 35 U.S.C. 271 by making, using, importing, offering to sell, and selling wireless mobile column lifts. The infringement is active and ongoing, and occurring within and outside of this judicial District. 49. Defendants are aware of their infringement but nevertheless continue to directly

and indirectly infringe on the 012 Patent. 50. Defendants direct and indirect infringement of the 012 Patent, upon information

and belief, has been willful and in conscious disregard of Gray Manufacturings rights. 51. As a direct and proximate result of Defendants infringement of the 012 Patent,

Gray Manufacturing has been damaged and is entitled to recover damages from Defendants under 35 U.S.C. 284. 52. Gray Manufacturing does not have an adequate remedy at law. It is now, and will

in the future be, irreparably harmed and damaged by Defendants infringement unless this Court enjoins Defendants from continuing their infringement under 35 U.S.C. 283.

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Prayer for Relief: WHEREFORE, Plaintiff Gray Manufacturing prays for the following judgments and relief against Defendants under all Counts: a. Judgment that Defendants have infringed upon United States Patent Nos.

RE41,554 and 7,014,012; b. Judgment under 35 U.S.C. 283 and Fed. R. Civ. P. 65(d), enjoining Defendants

and all those in active concert with them from infringing upon United States Patent Nos. RE41,554 and 7,014,012; c. Judgment that Defendants be required to account for their profits from

infringement of Gray Manufacturings patents; d. Judgment against Defendants for damages adequate to compensate Gray

Manufacturing for Defendants infringement under 35 U.S.C. 284, together with pre-judgment and post-judgment interest; e. f. Judgment for treble damages against Defendants under 35 U.S.C. 284; Judgment for Gray Manufacturings cost, expenses and reasonable attorneys fees

against Defendants under 35 U.S.C. 284 and 285; and g. circumstances. Jury Demand: Plaintiff demands trial by jury of all issues so triable. Judgment for such other relief as the Court deems just and proper under the

Dated: February 24, 2012

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Respectfully submitted, MURPHY, TAYLOR, SIEMENS & ELLIOTT P.C.

By

/s/ Kenneth E. Siemens Kenneth E. Siemens 41914 kensiemens@mtselaw.com Michael L. Taylor - 31948 miketaylor@mtselaw.com 3007 Frederick Avenue St. Joseph, MO 64506 Telephone: (816) 364-6677 Facsimile: (816) 364-9677

HOVEY WILLIAMS, LLP

By

/s/ Kameron D. Kelly Kameron D. Kelly 52594 kkelly@hoveywilliams.com Scott R. Brown - 51733 sbrown@hoveywilliams.com 10801 Mastin Boulevard, Suite 1000 84 Corporate Woods Overland Park, Kansas 66210 Telephone: (913) 647-9050 Facsimile: (913) 647-9057

ATTORNEYS FOR PLAINTIFF

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