IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION INNOVATIVE TIMIMG SYSTEMS,

LLC a Missouri Limited Liability Company, ) ) ) Plaintiff, ) ) v. ) ) ORBITER, LLC ) a Washington Limited Liability Company, ) ) Defendant. ) COMPLAINT COMES NOW Plaintiff, Innovative Timing Systems, LLC ("Innovative"), by and through its undersigned attorneys, and for its Complaint against Defendant, Orbiter, LLC ("Orbiter"), hereby alleges as follows: PARTIES 1. Innovative is a Missouri limited liability company with a principal place of

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business at 11671 Lilburn Park Road, Saint Louis, Missouri 63146. Innovative is engaged in, inter alia, the business of manufacturing, marketing and selling sports timing systems throughout the United States and the rest of the world. 2. Upon information and belief, Orbiter is a Washington limited liability company

with a principal place of business at 1423 East 29th Street, Suite 206, Tacoma, Washington 98404. 3. Upon information and belief, Orbiter is engaged in the business of manufacturing,

marketing and selling sports timing systems including lap counters throughout the United States and the rest of the world.

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Innovative and Orbiter are direct competitors.

JURISDICTION AND VENUE 5. This Court has jurisdiction over Counts I - II for False Patent Marking in respect

to an actual controversy over which this Court has jurisdiction under the Patent Laws of the United States (35 U.S.C. 1 et seq.) and 28 U.S.C. 1331 and 1338(a); over Counts III- IV for False Advertising in respect to an actual controversy over which this Court has jurisdiction under the Lanham Act (15 U.S.C. 1025 et seq.) and 28 U.S.C. 1338(a); and over Counts V - VI for Declaratory Judgment under 28 U.S.C. 2201 and 2202. 6. 1395(a). 7. This Court has personal jurisdiction over Orbiter at least because Orbiter has Venue is appropriate in this district pursuant to 28 U.S.C. 1391(b, c) and

advertised its falsely marked products in Missouri and in this District, and/or because Orbiter has advertised its falsely marked products in the stream of commerce having known or should have known that such stream of commerce advertisements would be seen in Missouri and in this District. 8. This Court further has personal jurisdiction over Orbiter because, inter alia: (a) on

or about March 14, 2011, Orbiter sent a letter (attached as Exhibit A) into this district to Innovative, alleging that Innovative "violates" Orbiter's U.S. Pat. No. 7,605,685 (the 685 Patent); (b) on or about July 1, 2011, Orbiter sent an email (attached as Exhibit B) into this district to counsel for Innovative demanding that Innovative review, attached a proposed patent license agreement and demanded a license with Orbiter on or before August 1, 2011; and (c) on or about July 25, 2011, Orbiter sent an email (attached as Exhibit C) into this district to

Innovative, demanding Innovative review terms of a proposed settlement that included demanding a license of the 685 Patent, cross licensing of Innovatives patents, and payments from Innovative. ALLEGATIONS COMMON TO ALL COUNTS 9. Upon information and belief, Orbiter has many years of experience applying for,

obtaining, and litigating patents. 10. Upon information and belief, Orbiter is the owner through assignment of U.S.

Patent No. 7,605,685 ("the '685 Patent") (attached as Exhibit D). 11. Upon information and belief, Orbiter produces, markets and sells each of the

following products: a. A fully automated and portable sports timing system for races and other such events. (Orbiters Sports Timing System); and b. A fully automated and portable sports lap counting system for races and other such events. (Orbiters LapCounter); 12. Orbiter has in the past advertised, or caused to be advertised, and presently

advertises, or causes to be advertised, both its Sports Timing System and its LapCounter in association with U.S. Patent Nos. 4,978,146 (the 146 Patent) (attached as Exhibit E), 5,495,981 (the 981 Patent) (attached as Exhibit F) and 6,039,356 (the 356 Patent) (attached as Exhibit G), even though neither of the Orbiter Sports Timing System nor the Orbiter LapCounter are not covered by the claims of said patents. (Copies of Orbiter's Internet web pages and web page provided brochures depicting such false associations are attached hereto as Exhibit H (current webpage), Exhibit I (web page from 2009), Exhibit J (current brochure), and Exhibit K (current brochure), and each of which are incorporated by reference herein).

Moreover, the 146 Patent is expired and therefore is incapable of covering the Sports Timing System and its LapCounter products. 13. Orbiter has in the past advertised, or caused to be advertised, and presently

advertises, or causes to be advertised, its LapCounter in association with U.S. Patent No. 7,345,958, (attached as Exhibit L) even though the Sports Timing System does not encompass any features claimed in that patent. (A copy of one of Orbiter's Internet web pages depicting such false association is attached hereto as Exhibit M, and incorporated by reference herein). 14. Upon information and belief, Orbiter has an Orbiter Lap Counter system that

appears to at least be colorably covered by one or more of the claims of the '685 Patent to sold to the American Lung Association (ALA) for use in an event held in St. Louis, Missouri, and that Orbiter having known or should have known that such system would be used within this district. (A copy of an Orbiter Internet web page depicting the ALA Orbiter Lap Counter, attached hereto as Exh. K, and incorporated by reference herein). 15. Orbiter has accused Innovative of infringing the 685 Patent by alleging that

Innovative "violates" the '685 Patent (Exh. A), asking Innovative to review and negotiate a patent license agreement with Orbiter (Exh. B), and providing Innovative specific settlement terms including entering into a patent license agreement, cross licensing patents and demanding payments (Exh. C). (See 8). 16. Orbiters president, Greg Stewart, professes to be knowledgeable in the

application of patent claims to covered or infringing products. 17. 18. Mr. Stewart professes to be knowledgeable regarding U.S. Patent laws. Mr. Stewart has a complete understanding of the construction and operation of the

Sports Timing System and LapCounter system.

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Mr. Stewart professes to be fully aware of the scope of the claims of the patents

owned by Orbiter. 20. Mr. Stewart has on several occasions made allegations of infringement of Orbiter

owned patents by others and has argued the details of patent claim coverage of the 685 patent when making allegations of infringement, professing to be fully understanding of the claim scope of the 685 Patent. 21. Mr. Stewart has professed to Innovative that he is intimately involved in the

prosecution of Orbiters patent applications. 22. Mr. Stewart has directed counsel for Innovative not to correspond with the

licensed patent attorney who prosecutes Orbiter patent applications, indicating that he represents Orbiter with respect to Orbiters allegations of patent infringement.

COUNT I FALSE MARKING IN VIOLATION OF 35 U.S.C. 292 USING THE '146 PATENT, THE '981 PATENT AND THE '356 PATENT 23. 24. 25. Innovative incorporates paragraphs 1-22 as if fully set forth herein. This Count arises under 35 U.S.C. 292 of the United States patent laws. Each of Orbiters association of its Sports Timing System with the 146 Patent,

the 981 Patent and the 356 Patent, as depicted by way of example in Exhibits H, I, J, and K constitutes false patent marking in direct violation of 35 U.S.C. 292. 26. Each false patent marking on Orbiter's advertisements is likely to, or at least has

the potential to, discourage or deter persons and companies from commercializing competing products.

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Orbiter has wrongfully and illegally advertised patent rights that it does not

possess and, as a result, has benefitted commercially and financially by maintaining false statements of patent rights. 28. Based upon Mr. Stewarts unique knowledge and understanding of the patent laws

and the claim scope of Orbiters patents, Orbiter knows, or reasonably should know, that the 146 Patent, the 981 Patent and the 356 Patent do not cover the Sports Timing System product. 29. Orbiter has shown that it has the knowledge to properly advertise its patent rights,

as evidenced by the apparently colorably proper patent markings using the '685 Patent number. (See, e.g., as depicted by the attached Exh. N). 30. For at least the reasons provided herein, and/or for reasons which will be later

evidenced, each false patent marking by Orbiter that is advertised in conjunction with an Orbiter product contributes to causing substantial harm to Innovative, to the United States and to the general public. 31. Orbiters violation of 35 U.S.C. 292 was and is willful and malicious, in that

Orbiter intentionally advertised its products in association with the '146 Patent, the '981 Patent, and the '356 Patent with the intent to prevent competitors from entering the market and for the purpose of deceiving the public into believing that something contained in or embodied in the products is covered by or protected by those patents, when Orbiter knew or should have known that they were not. COUNT II FALSE MARKING IN VIOLATION OF 35 U.S.C. 292 USING THE '958 PATENT 32. 33. Innovative incorporates paragraphs 1-31 as if fully set forth herein. This Count arises under 35 U.S.C. 292 of the United States patent laws.

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Orbiters association of its LapCounter with the 958 Patent, as depicted by way

of example in Exh. M, constitutes false patent marking in direct violation of 35 U.S.C. 292. 35. Each false patent marking on Orbiter's advertisements is likely to, or at least has

the potential to, discourage or deter persons and companies from commercializing competing products. 36. Orbiter has wrongfully and illegally advertised patent rights that it does not

possess and, as a result, has benefitted commercially and financially by maintaining false statements of patent rights. 37. Based upon Mr. Stewarts unique knowledge and understanding of the patent laws

and the claim scope of Orbiters patents, Orbiter knows, or reasonably should know, that the 146 Patent, the 981 Patent and the 356 Patent do not cover the LapCounter product. 38. Orbiter has shown that it has the knowledge to properly advertise its patent rights,

as evidenced by the apparently colorably proper patent markings using the '685 Patent number. (See, e.g., Exh. N). 39. For at least the reasons provided herein, and/or for reasons, which will be later

evidenced, each false patent marking by Orbiter, which is advertised in conjunction with an Orbiter product, contributes to causing substantial harm to Innovative, to the United States and to the general public. 40. Orbiters violation of 35 U.S.C. 292 was and is willful and malicious, in that

Orbiter intentionally advertised its LapCounter product in association with the '958 Patent with the intent to prevent competitors from entering the market and for the purpose of deceiving the public into believing that something contained in or embodied in the products is covered by or protected by that patent, when Orbiter knew or should have known that it was not.

COUNT III FALSE ADVERTISING IN VIOLATION OF SECTION 43(a) OF THE LANHAM ACT USING THE '146 PATENT, THE '981 PATENT AND THE '356 PATENT 41. 42. 43. Innovative incorporates paragraphs 1-40 as if fully set forth herein. This Count arises under the Federal Lanham Act, 15 U.S.C. 1051 et seq. Orbiter has used, or caused to be used, in commerce, the Orbiter advertisement

depicted by Exhibits H, I, J, and K, as the term "in commerce" is construed under 15 U.S.C. 1125(a)(1). 44. Each of Orbiters associations of the 146 Patent, the 981 Patent and the 356

Patent, with the products depicted in the Exhibits H, I, J, and K advertisements are false and misleading in direct violation of 15 U.S.C. 1125(a)(1), in that neither Orbiters Sports Timing System nor Orbiters LapCounter as depicted in the advertisement encompass any features or are protected by any claims of any of the patents so identified. 45. Orbiter has shown that it has the knowledge to properly advertise its patent rights,

as evidenced by the apparently colorably proper patent markings using the '685 Patent number. (See, e.g., Exh. N). 46. Orbiters violation of 15 U.S.C. 1125(a)(1) was and is therefore willful and

malicious, in that Orbiter intentionally advertised its products in association with the 146 Patent, the 981 Patent and the 356 Patent, with the intent to prevent competitors from entering the market and for the purpose of deceiving the public into believing that something contained in or embodied in the products is covered by or protected by those patents, when Orbiter knew or should have known that they were not.

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Innovative is therefore entitled to a finding that this is an exceptional case and

awarding to Innovative its attorneys' fees and treble damages, pursuant to 15 U.S.C. 1114 and/or 1117. 48. Innovative has no adequate remedy at law in that money damages are not

adequate to compensate it for the wrongful acts of Orbiter. Unless the Court acts to permanently enjoin Orbiter, Orbiters acts herein complained of have caused and will continue to cause great and irreparable damage to Innovative. Insofar as damages will compensate Innovative for such false and misleading representations of fact regarding Orbiter's products, Innovative also seeks such monetary damages. COUNT IV FALSE ADVERTISING IN VIOLATION OF SECTION 43(a) OF THE LANHAM ACT USING THE '958 PATENT 49. 50. 51. Innovative incorporates paragraphs 1-48 as if fully set forth herein. This Count arises under the Federal Lanham Act, 15 U.S.C. 1051 et seq. Orbiter has used, or caused to be used, in commerce, the Orbiter advertisement

depicted by Exh. M, as the term "in commerce" is construed under 15 U.S.C. 1125(a)(1). 52. Orbiters association of the 958 Patent with the products depicted in the Exh. M

advertisement is false and misleading in direct violation of 15 U.S.C. 1125(a)(1), in that the LapCounter depicted in the advertisement does not encompass any feature and is not covered by any claim of the 958 Patent. 53. Orbiter has shown that it has the knowledge to properly advertise its patent rights,

as evidenced by the apparently colorable proper patent markings using the '685 Patent number. (See, e.g., Exh. N).

54.

Orbiters violation of 15 U.S.C. 1125(a)(1) was and is therefore willful and

malicious, in that Orbiter intentionally advertised its products in association with the 958 Patent with the intent to prevent competitors from entering the market and for the purpose of deceiving the public into believing that something contained in or embodied in the products is covered by or protected by those patents, when Orbiter knew or should have known that they were not. 55. Innovative is therefore entitled to a finding that this is an exceptional case and

awarding to Innovative its attorneys' fees and treble damages, pursuant to 15 U.S.C. 1114 and/or 1117. 56. Innovative has no adequate remedy at law in that money damages are not

adequate to compensate it for the wrongful acts of Orbiter. Unless the Court acts to permanently enjoin Orbiter, Orbiters acts herein complained of have caused and will continue to cause great and irreparable damage to Innovative. Insofar as damages will compensate Innovative for such false and misleading representations of fact regarding Orbiter's products, Innovative also seeks such monetary damages. COUNT V DECLARATORY JUDGMENT OF NON-INFRINGMENT OF THE '685 PATENT 57. 58. 59. Innovative incorporates paragraphs 1-56 as if fully set forth herein. This Count arises under the Declaratory Judgment Act, 28 U.S.C. 2201, 2202. An actual case or controversy exists because of Orbiters direct accusation that

Innovative has infringed and continues to infringe the 685 Patent, and because Innovative is in imminent apprehension of suit because of Orbiters threats of litigation. 60. No valid claim of the '685 Patent is infringed by any Innovative product or by

Innovative's operation thereof.

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61.

To resolve the legal and factual questions raised by Orbiter's conduct, and to

afford relief from the uncertainty and controversy which Orbiter's conduct has precipitated, Innovative is entitled to a Declaration that no Innovative product or Innovative's operation thereof infringe any valid, enforceable claim of the '685 Patent. 62. Innovative has no adequate remedy at law in that money damages are not

adequate to compensate it for the wrongful acts of Orbiter. Unless the Court acts to permanently enjoin Orbiter, Orbiters acts herein complained of have caused and will continue to cause great and irreparable damage to Innovative. Insofar as damages will compensate Innovative for such false and misleading representations of fact regarding Orbiter's products, Innovative also seeks such monetary damages. COUNT VI DECLARATORY JUDGMENT OF INVALIDITY OF '685 PATENT 63. 64. 2202. 65. An actual case or controversy exists because of Orbiters direct accusation that Innovative incorporates paragraphs 1-62 as if fully set forth herein. This Count arises under the Declaratory Judgment Act, 28 U.S.C. 2201 and

Innovative has infringed and continues to infringe the 685 Patent, and because Innovative is in imminent apprehension of suit because of Orbiters threats of litigation. 66. However, the '685 Patent is invalid for failure to comply with one or more of the

provisions of 35 U.S.C. 102, 103 and/or 112. 67. More specifically, each and every claim of the '685 Patent is invalid under 35

U.S.C. 102 and/or 103 as anticipated by or obvious under one or more prior art references. (A

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copy of an extensive listing of said prior art references is attached hereto as Exhibit O, and incorporated by reference herein). 68. Further, multiple claims of the '685 Patent are invalid under 35 U.S.C. 112 1, 2

and 6 for at least failure to conform to the written description, enablement and/or definiteness requirements of that Section. 69. To resolve the legal and factual questions raised by Orbiter's conduct, and to

afford relief from the uncertainty and controversy which Orbiter's conduct has precipitated, Innovative is entitled to a Declaration that the '685 Patent is invalid. 70. Innovative has no adequate remedy at law in that money damages are not

adequate to compensate it for the wrongful acts of Orbiter. Unless the Court acts to permanently enjoin Orbiter, Orbiters acts herein complained of have caused and will continue to cause great and irreparable damage to Innovative. Insofar as damages will compensate Innovative for such false and misleading representations of fact regarding Orbiter's products, Innovative also seeks such monetary damages.

WHEREFORE, Innovative prays that this Court enter judgment: I. Finding the 685 patent to be invalid, unenforceable, void and/or not infringed by Innovative. II. Finding that Orbiter has falsely advertised products in violation of 35 U.S.C. 292 and/or 15 U.S.C. 1125; III. Awarding monetary damages, pursuant to 35 U.S.C. 292, in the form of a civil monetary fine of $500 per false marking "offense," or an alternative amount as determined by the

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Court, one half of which should be paid to the United States of America under Counts I II; IV. Awarding monetary damages, pursuant to 15 U.S.C. 1114, and 1117 resulting from Orbiters violations of the Lanham Act; V. Entering an Order that Orbiter destroy all advertising and promotional material that misrepresents the nature, characteristic, and qualities of Defendants products in violation of 15 U.S.C. 1125(a) and/or 35 U.S.C. 292; VI. That Orbiter, its subsidiaries, officers, agents, servants, affiliates, employees, attorneys and representatives and all those in privy or acting in concert with Orbiter be permanently enjoined and restrained from using false patent marking, from false advertising, and from representing that Innovative infringes Orbiter's patents in accordance with 35 U.S.C. 283 and 15 U.S.C. 1116; VII. Ordering an accounting for any falsely marked products not presented at trial and an award by the Court of additional damages for any such falsely marked products under Counts I-II; VIII. Finding that this is an exceptional case and awarding to Innovative its attorneys' fees and treble damages under Counts I - II and V - VI, pursuant to 38 U.S.C. 285 and 15 U.S.C. 1114 and/or 1117; IX. Awarding to Innovative its costs and expenses in this action and such other relief as the Court may deem just. **********

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Innovative Timing Systems, LLC. Respectfully submitted, POLSTER, LIEDER, WOODRUFF & LUCCHESI, L.C.

By:/s/Nelson D. Nolte Douglas D. Churovich, # 47736MO Nelson D. Nolte, E.D. Mo. # 53470MO 12412 Powerscourt Rd., Ste. 200 St. Louis, Missouri 63131 (314) 238-2400 FAX (314) 238-2401 ATTORNEYS FOR INNOVATIVE Attachments: Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Exhibit J Exhibit K Exhibit L Exhibit M Exhibit N Exhibit O March 14, 2011 letter from Orbiter to Innovative July 1, 2011 email from Orbiter to Innovative's counsel July 25, 2011 email from Orbiter to Innovative with proposed terms of settlement U.S. Patent No. 7,605,685 ("the '685 Patent") U.S. Patent No. 4,978,146 ("the '146 Patent") U.S. Patent No. 5,495,981 ("the '981 Patent") U.S. Patent No. 6,039,356 ("the '356 Patent") Orbiter's first web page depicting Orbiter's timing system with false patent markings of the 146 Patent, the 981 Patent, and the 356 Patent Orbiter's second web page depicting Orbiter's timing system with false patent markings of the 146 Patent, the 981 Patent, and the 356 Patent Orbiters first brochure accessible via their web page false marking with 146, 981 and 356 Patents Orbiters second brochure accessible via their web page false marking with 146, 981 and 356 Patents U.S. Patent No. 7,345,958 ("the '958 Patent") Orbiter's web page depicting Orbiter's LapCounter timing system with false patent marking of the 958 Patent Orbiter's current web page depicting Orbiter's timing system with apparently colorable proper patent markings of the 685 Patent Listing of prior art references which anticipate and/or render obvious the claims of the '685 Patent

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