Case: 5:09-cv-01604-SL Doc #: 1 Filed: 07/14/09 1 of 5. PageID #: 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO HORTON ARCHERY, LLC Plaintiff, Case No. Judge v. AMERICAN HUNTING INNOVATIONS, L.L.C. a/k/a KEMPF CROSSBOWS a/k/a RDT ARCHERY; J & S R.D.T. ARCHERY, INC.; SCORPYD CROSSBOWS, AND JAMES J. KEMPF an individual COMPLAINT Jury Demand Endorsed Hereon Defendants 1. Plaintiff, Horton Archery, LLC ( Horton ), is a limited liability company organized under the laws of the state of Delaware, and has a principal place of business at 460 Tacoma Avenue, Tallmadge, OH 44278. 2. Horton recently acquired the assets previously owned by Horton Manufacturing Company, LLC. 3. Upon information and belief, Defendant, American Hunting Innovations, L.L.C. is a limited liability company organized under the laws of the state of Iowa, and has a principal place of business and its registered office at 3201 12th Avenue, Coralville, IA 52241, with James Jay Kempf as its registered agent. American Hunting Innovations, L.L.C. is also known as Kempf Crossbows or RDT Archery. 4. Upon information and belief, Defendant, J & S R.D.T. Archery, Inc. is a corporation organized under the laws of the state of Iowa, and has its registered office at 3201 12th Avenue, Coralville, IA 52241, with James Jay Kempf as its registered agent.
Case: 5:09-cv-01604-SL Doc #: 1 Filed: 07/14/09 2 of 5. PageID #: 2 5. Upon information and belief, Defendant, Scorpyd Crossbows has its principal place of business at 3201 12th Avenue, Coralville, IA 52241, and maintains an interactive commercial website at http://www.scorpyd.com with Jim Kempf as its Administrative Contact and its Technical Contact. 6. Upon information and belief, Defendant, James J. Kempf is also known as and referred to herein as James Jay Kempf and Jim Kempf, and is a resident of the state of Iowa with his principal residence at 3201 12th Avenue, Coralville, IA 52241. 7. Collectively, the defendants (listed in paragraphs 3-6 above) will be referred to herein as Kempf. 8. Upon information and belief, Kempf is subject to personal jurisdiction within this judicial district, and venue is proper in this judicial district under Title 28, United States Code, Section 1391(b). 9. Subject matter jurisdiction arises under the Federal Declaratory Judgments Act, Title 28, United States Code, Sections 2201 and 2202, and under the laws of the United States concerning actions relating to patents, Title 28, United Sates Code, Section 1338(a). COUNT I 10. On April 29, 2008, U.S. Patent No. 7,363,921 ( 921 Patent ) entitled Crossbow was issued to James J. Kempf. A copy of the 921 Patent is attached as Exhibit A. Upon information and belief, the 921 Patent was assigned and is presently owned in its entirety by J & S R.D.T. Archery, Inc. 1 11. Prior to this Complaint, and until the acquisition of assets referenced above in Paragraph 2, Horton Manufacturing Company LLC made and/or offered for sale, crossbows having Frontal 1 While the face of the 921 patent indicates that J & S R.D.T. Archery is the assignee of the patent, the United States Patent and Trademark Office Assignments on the Web database has no assignment information for the 921 patent. If the patent has not been assigned, the patent is owned by the inventor, James J. Kempf. 35 U.S.C. 101.
Case: 5:09-cv-01604-SL Doc #: 1 Filed: 07/14/09 3 of 5. PageID #: 3 String Technology under the product names recon 175 and Vision 175 ( the Products ). Since the acquisition, Horton has continued to make and offer the Products for sale. 12. On April 29, 2009 American Hunting Innovations, L.L.C. a/k/a RDT Archery a/k/a Kempf Crossbows, J & S R.D.T. Archery, Inc., and James J. Kempf filed suit against Horton Manufacturing Company, LLC in the Southern District of Iowa, asserting that the Products infringe the 921 Patent. See, United States District Court for the Southern District of Iowa case number 4:09-cv-00166-RP-RAW. 13. A substantial and continuing justiciable controversy exists between Horton and Kempf as to Kempf s claims that the Products infringe the 921 Patent, and as to the validity, scope and enforceability of the 921 Patent. 14. Upon information and belief, the Products do not infringe any claim of the 921 Patent, and Horton should enjoy the right to make, sell, and offer the Products for sale. 15. Upon information and belief, by reason of the proceedings in the Patent Office during the prosecution of the application that resulted in the 921 Patent, Kempf is estopped to claim for the 921 Patent a construction that would cause the 921 Patent to cover or include the Products manufactured and sold by Horton. 16. Upon information and belief, the 921 Patent is invalid, void and unenforceable for failure to comply with one or more of the provisions of the Patent Statutes, including but not limited to 35, United States Code, Sections 101, 102, 103, and 112, and 37 CFR 1.56. COUNT II 17. Horton repeats the allegations of paragraphs 1-16. 18. Upon information and belief, Kempf has made false or misleading description of fact, and false or misleading representation of fact, in connection with goods sold in interstate commerce relating to Kempf s own goods or the crossbows manufactured and sold by Horton.
Case: 5:09-cv-01604-SL Doc #: 1 Filed: 07/14/09 4 of 5. PageID #: 4 19. By way of example, the webpage for ScorpyD Crossbows includes an About Us page accessible at http://www.scorpyd.com/about_us.html which states: SCORPYD CROSSBOWS IS THE INVENTOR OF REVERSE DRAW TECHNOLOGY CROSSBOWS. WITH NUMEROUS U.S. PATENTS ISSUED AND MANY PENDING, WE ARE THE ONLY COMPANY LEGALLY ALLOWED TO MAKE THIS TECHNOLOGY. DON T BE FOLLED [sic] BY INFRINGERS. 20. Kempf s false or misleading statements violate Section 43(a) of the Lanham Act, or 15 U.S.C. Section 1125(a), and are greatly and irreparably damaging to Horton and will continue to be greatly irreparably damaging to Horton unless enjoined by this Court, as a result of which Horton is without an adequate remedy at law. WHEREFORE, Horton demands: A. Entry of judgment that Kempf is without right or authority to threaten or to maintain suit against Horton for claims of infringement of the 921 Patent because of Horton s making and selling of the Products; that the 921 Patent is not infringed by Horton because of Horton s making and selling of the Products; and that the 921 Patent is invalid, void and unenforceable in law. B. Entry of a preliminary injunction enjoining Kempf, its officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with it who receive actual notice thereof from initiating infringement litigation and from threatening Horton or any of its customers, dealers, agents, servants, or employees, or any prospective or present sellers, dealers, or users of the Products, with infringement litigation or charging any of them either verbally or in writing with infringement of the 921 Patent because of the use or sale of the Products, to be made permanent following trial. C. Entry of an order enjoining Kempf, and its affiliated companies, officers, agents, servants, employees and all other persons and entities acting in concert and participating with
Case: 5:09-cv-01604-SL Doc #: 1 Filed: 07/14/09 5 of 5. PageID #: 5 Kempf, from publishing further false or misleading descriptions or representations of fact regarding Kempf s or Horton s products. D. Entry of an order instructing Kempf to publish corrective advertising to dispel the false and deceptive impression created by Kempf s false or misleading statements. E. Entry of judgment of its costs and reasonable attorney fees incurred by Horton herein. F. Such other and further relief as the Court may deem appropriate. Jury Demand Horton requests a jury trial herein. /s:/ray L. Weber Edward G. Greive (0018243) Ray L. Weber (0006497) Laura J. Gentilcore (0034702) Renner, Kenner, Greive, Bobak, Taylor & Weber 400 First National Tower Akron, Ohio 44308 Telephone: (330) 376-1242 Facsimile: (330) 376-9646 Attorneys for Plaintiff, Horton Archery, LLC