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Steven A. Nielsen, Esq., CSB #133864 steve@nielsenpatents.com ALLMAN & NIELSEN, P.C. 100 Larkspur Landing Circle, Suite 212 Larkspur, CA 94939-1743 Telephone: (415) 461-2700 Facsimile: (415) 461-2726 Attorneys for Plaintiff PRO TEK CARGO INC. a California Corporation IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

PRO TEK CARGO INC. Plaintiff, vs. Q-SALES & LEASING, LLC., Defendant and Roes 1 to 30.

Case No. C12-1516 DMR PATENT COMPLAINT FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF PATENTS 1ST CAUSE OF ACTION: For Declaratory Judgment of NonInfringement of Patent (Declaratory Judgment Act, 28 U.S.C. 2201) U.S. Patent 6,196,287 2nd CAUSE OF ACTION: For Declaratory Judgment of NonInfringement of Patent (Declaratory Judgment Act, 28 U.S.C. 2201) U.S. Patent 6,478,061 DEMAND FOR JURY TRIAL

Plaintiff, PRO TEK CARGO INC., (Protek) by their undersigned attorneys, for their Complaint against Defendant Q-Sales & Leasing (Q-Sales) allege on personal knowledge

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100 Larkspur Landing Circle Suite 212 Larkspur, CA 94939 Telephone: (415) 461-2700 Facsimile: (415) 461-2726

ALLMAN & NIELSEN, P.C.

COMPLAINT FOR DECLARATORY JUDGMENT Case No. C 12 1516 DMR

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as to its own acts and on information and belief as to the actions of others, as follows:

THE PARTIES
1. Plaintiff Protek is a California Corporation with a principal place of

business at 155 Waterfront Ave, Vallejo, CA 94592.

2.

Defendant Q-Sales appears to be an Illinois corporation with a principal

place of business at 16720 South Mozart Ave. Hazel Crest, IL 60429.

JURISDICTION AND VENUE

3. This action arises under the Declaratory Judgment Act, 28 U.S.C 2201, et

seq., and under the patent laws of the United States, 35 U.S.C. 1, et seq. 4. This Court has jurisdiction over the subject matter of this action pursuant to

28 U.S.C. 1331, 1338(a), 2201-2202, and this Court also has diversity jurisdiction of this case pursuant to 28 U.S.C. 1332 because this action is between citizens of different states and the amount in controversy exceeds $75,000 (exclusive of interest and costs). 5. Venue is proper in this Court under 28 U.S.C. 1391(b), (c) and (d), and

1400(b), because Q-Sales is subject to general personal jurisdiction in this district, conducts systematic and continues business in this district, and a substantial part of the alleged events or omissions giving rise to the claims occurred in this district. 6. 7. This Court has personal jurisdiction over the parties to this lawsuit. This Court has personal jurisdiction over Q-Sales because, among other

reasons, Q-Sales has purposefully directed activities to this district by, inter alia, leasing and/or selling cargo blankets within this district to various local entities that include: 8. Cobalt Transport Services, address: 740 Airpark Rd, Napa, CA

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100 Larkspur Landing Circle Suite 212 Larkspur, CA 94939 Telephone: (415) 461-2700 Facsimile: (415) 461-2726

ALLMAN & NIELSEN, P.C.

COMPLAINT FOR DECLARATORY JUDGMENT Case No. C 12 1516 DMR

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9. 10. 11. 12. 13. 14.

North Coast Logistics, address: 361 Sutton Pl. Santa Rosa, CA 95407 QPI, P.O. Box 1802 Lafayette, CA 94549 Western Wine, address: 760 Hanna Dr. American Canyon, CA 94503 Korbel, address: 13250 River Road Guerneville, CA 95446 Fetzer Vineyards, address: 13601 Old River Rd. Hopeland, CA 95449 An immediate, real and justiciable controversy exists between Protek and Q-

Sales as to whether the cargo blankets of Protek infringe upon U.S. Patent Nos. 6,196,287 and/or 6,478,061 (herein after sometimes collectively referred to as the Patents-in-Suit or the subject patents or the Q-Sales patents). 15. On or about March 13, 2012, counsel for Q-Sales sent a cease and desist

letter to Protek, a true and correct copy of which is attached to this Complaint as Exhibit F. 16. Protek. 17. The Q-Sales cease and desist letter demands the destruction of all of The Q-Sales cease and desist letter alleges patent infringement against

Proteks Insulating Cargo Blankets. 18. The Q-Sales cease and desist letter shows a sufficient case in controversy

to warrant an action for a declaratory judgment under the standards set forth in Medimmune, Inc. vs. Genentech 127 S.Ct 764 (2007) 549 U.S. 118

INTRADISTRICT ASSIGNMENT
19. San Francisco. As a substantial part of the events giving rise to the claim occurred near

FACTUAL ALLEGATIONS

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100 Larkspur Landing Circle Suite 212 Larkspur, CA 94939 Telephone: (415) 461-2700 Facsimile: (415) 461-2726

ALLMAN & NIELSEN, P.C.

COMPLAINT FOR DECLARATORY JUDGMENT Case No. C 12 1516 DMR

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20. 21. 22. 23. 24. 25. a cargo blanket. 26.

Protek and Q-Sales compete for business in the San Francisco Bay Area. Q-Sales offers cargo blankets for sale or lease. Protek offers cargo blankets for lease. Q-Sales has brought at least one action for patent infringement. FIG. 34 of the Patents-in-Suit includes an item circled as number 36. The item circled as number 36 in FIG. 34 is located upon an outer edge of

FIG. 36 of the Patents-in-Suit depicts a cross-section of the area marked

as number 36 in FIG. 34. 27. FIG. 36 of the Patents-in-Suit depicts an accordion-like structure as

defined in the specification. 28. FIG. 36 of the Patents-in-Suit depicts a structure located at reference

number 36 on FIG. 34. 29. Each independent claim within the Patents-in-Suit contains limitations for

a cargo blanket having an accordion-like structure. 30. Exhibit C to this Complaint comprises true and correct copies of FIGs. 34

and 36 of the Patents-in-Suit. 31. FIG. 36 of the Patents-in-Suit shows insulation material terminating prior

to entering the binding area. 32. Exhibit D to this Complaint comprises two photographs of scaled models

of Proteks Insulating Cargo Blankets. 33. FIG. A of Exhibit D is labeled, FIG. A Protek Cargo Product

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100 Larkspur Landing Circle Suite 212 Larkspur, CA 94939 Telephone: (415) 461-2700 Facsimile: (415) 461-2726

ALLMAN & NIELSEN, P.C.

COMPLAINT FOR DECLARATORY JUDGMENT Case No. C 12 1516 DMR

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34. marked as B. 35.

FIG. A has a circled area at the outer edge of a blanket, the circled area

FIG. B of Exhibit D depicts a cut-a-way window along the outer edge area

of a Protek cargo blanket model. 36. FIG. B of Exhibit D depicts batting or insulation material passing beyond

the casing material or binding area. 37. FIG. B of Exhibit D includes a circled area marked at C, the circled area

found at the bottom edge of the Protek model blanket. 38. Exhibit E attached to this Complaint comprises a true and correct copy of

FIG. 36 of the patents-in-Suit. 39. Exhibit E comprises a Figure C, which depicts a cross-section of the

circled area C of FIG. B. 40. FIG. C of Exhibit E depicts batting material or insulation material

contained within the binding area. 41. The structure depicted in FIG. C of Exhibit E falls outside of the definition

of an accordion-like structure as defined in the specifications of the Patents-in-Suit. 42. The structure depicted in FIG. C of Exhibit E in not an accordion-like

structure as claimed in the Patents-in-Suit. 43. The configuration depicted in FIG. C of Exhibit E is an accurate

representation of the binding configuration found within Proteks Insulating Cargo Blankets. 44. Proteks Insulating Cargo Blankets contain no assemblies that comprise

an accordion-like structure as claimed by the Patents-in-Suit. 45. All independent claims of the Patents-in-Suit contain a courier-

expressible limitation.

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100 Larkspur Landing Circle Suite 212 Larkspur, CA 94939 Telephone: (415) 461-2700 Facsimile: (415) 461-2726

ALLMAN & NIELSEN, P.C.

COMPLAINT FOR DECLARATORY JUDGMENT Case No. C 12 1516 DMR

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46. 47.

Proteks Insulating Cargo Blankets are not courier expressible. Proteks Insulating Cargo Blankets have average open dimensions of 9' x

4'' x 55' x 1/2'' inch thick. 48. Proteks Insulating Cargo Blankets have average folded dimensions of 9'

4'' x 4' x 7'' x 7'' inches thick. 49. Proteks Insulating Cargo Blankets have an average weight in the

approximate range of 60 to 75 pounds. 50. 51. express courier. 52. For these and other reasons, Proteks Insulating Cargo Blankets do not Proteks Insulating Cargo Blankets are always transported via trucks. Proteks Insulating Cargo Blankets have never been shipped via an

infringe upon the Patents-in-Suit. 53. Q-Sales failed to destructively test any Protek Insulating Cargo Blanket

prior to authoring the cease and desist letter attached to this Complaint as Exhibit F. 54. A reasonable comparison of Proteks Insulating Cargo Blankets with the

claims of the Patents-in-Suit shows no infringement by Protek. 55. The non accordion-like structure of Proteks Insulating Cargo Blankets

may be observed without cutting into a Protek blanket. 56. Q-Sales purports to be the assignee of the Patents-in-Suit, as alleged in

Q-Sales cease and desist letter. 57. 58. Q-Sales has accused Protek of infringing upon the Patents-in-Suit. The Q-Sales cease and desist letter of Exhibit F by Q-Sales demands

written assurances by March 27, 2012.

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100 Larkspur Landing Circle Suite 212 Larkspur, CA 94939 Telephone: (415) 461-2700 Facsimile: (415) 461-2726

ALLMAN & NIELSEN, P.C.

COMPLAINT FOR DECLARATORY JUDGMENT Case No. C 12 1516 DMR

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I.

FIRST CAUSE OF ACTION FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF PATENT 6,106,287 (the 287 Patent) (DECLARATORY JUDGMENT ACT, 28 U.S.C. 2201)
Plaintiff Protek restates and incorporates by reference each and every

59.

allegation previously set forth in the Complaint as though fully set forth herein. 60. Q-Sales has accused Protek of infringing the 287 Patent or, at a

minimum, by its communications with Protek, has created a substantial, immediate and real controversy between the parties as to the non-infringement of the 287 Patent. 61. Protek is not infringing and has not infringed any valid claim of the 287

Patent by making, using, or selling any of its products, and Q-Sales is not entitled to any relief arising under or relating to its purported rights in the 287 Patent.

II.

SECOND CAUSE OF ACTION FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF PATENT 6,478,061 (the 061 Patent) (DECLARATORY JUDGMENT ACT, 28 U.S.C. 2201)
Plaintiff Protek restates and incorporates by reference each and every

62.

allegation previously set forth in the Complaint as though fully and set forth herein. 63. Q-Sales has accused Protek of infringing the 061 Patent or, at a

minimum, by its commutations with Protek, has created a substantial, immediate and real controversy between the parties as to the non-infringement of the 061 Patent. 64. Protek is not infringing and has not infringed any valid claim of the 061

Patent by making, using, or selling any of its products, and Q-Sales is not entitled to any relief arising under or relating to its purported rights in the 061 Patent.

PRAYER FOR RELIEF

65. Plaintiff prays for relief as follows:

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100 Larkspur Landing Circle Suite 212 Larkspur, CA 94939 Telephone: (415) 461-2700 Facsimile: (415) 461-2726

ALLMAN & NIELSEN, P.C.

COMPLAINT FOR DECLARATORY JUDGMENT Case No. C 12 1516 DMR

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66. 287 Patent; 67. 061 Patent; 68.

For an order declaring that Plaintiff has not and does not infringe upon the

For an order declaring that Plaintiff has not and does not infringe upon the

That the Court find this an exceptional case and award Plaintiff its costs

and attorneys fees pursuant to 35 U.S.C. 285 or otherwise; and 69. That the Court grant Plaintiff such other and further relief as the Court

deems just and Proper.

Dated: March 26, 2012

By:

ALLMAN & NIELSEN, P.C.

/S/ Steve Nielsen Steven A. Nielsen, Esq. Attorneys for Plaintiff, PRO TECH CARGO INC.

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100 Larkspur Landing Circle Suite 212 Larkspur, CA 94939 Telephone: (415) 461-2700 Facsimile: (415) 461-2726

ALLMAN & NIELSEN, P.C.

COMPLAINT FOR DECLARATORY JUDGMENT Case No. C 12 1516 DMR

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DEMAND FOR JURY TRIAL

Plaintiff PRO TEK CARGO hereby demands a trial by jury.

Dated: March 26, 2012

ALLMAN & NIELSEN, P.C.

By: /S/ Steve Nielsen Steven A. Nielsen, Esq. Plaintiff PRO TEK CARGO INC.

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100 Larkspur Landing Circle Suite 212 Larkspur, CA 94939 Telephone: (415) 461-2700 Facsimile: (415) 461-2726

ALLMAN & NIELSEN, P.C.

COMPLAINT FOR DECLARATORY JUDGMENT Case No. C 12 1516 DMR