IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION Civil Action No.

: __________ MORRIS & ASSOCIATES, INC., Plaintiff, v. PERDUE FARMS INCORPORATED Defendant. COMPLAINT (JURY TRIAL DEMAND)

Plaintiff, Morris & Associates, Inc. (Morris) states its Complaint against Perdue Farms Incorporated (Perdue or Defendant) as follows: INTRODUCTION 1. This is an action for patent infringement arising under the patent laws of the

United States, Title 35, United States Code. JURISDICTION AND VENUE 2. This Court has subject matter jurisdiction over all causes of action set forth

herein pursuant to 28 U.S.C. 1331 and 1338(a). 3. Venue is proper in this judicial district and division pursuant to 28 U.S.C.

1391(b) and (c) and 1400(b).

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The Court has personal jurisdiction over the Defendant due to Defendant being

registered to do business in the State of North Carolina and from Defendants operation in this judicial district of at least one of its processing facilities, which is also a site of Defendants use of the accused infringing device. PARTIES 5. Morris is a North Carolina corporation having its principal place of business in

Garner, North Carolina at 803 Morris Drive, Garner, North Carolina 27529, which is located in Wake County. 6. Upon information and belief, Defendant is a Maryland corporation having its

principal place of business at 31149 Old Ocean City Road, Salisbury, MD 21804. 7. Defendant is registered to do business in North Carolina and operates a

processing facility within this judicial district located at or near 3539 Governors Rd., Lewiston, NC 27849, which is also at least one of Defendants facilities where Defendant uses the accused infringing device identified below. 8. Defendant may be properly served this Complaint via its North Carolina

Registered Agent, CT Corporation System, which is located at 150 Fayetteville Street, Box 1011, Raleigh, North Carolina, or via its Maryland Registered Agent, The Corporation Trust Company, which is located at 351 West Camden Street, Baltimore, MD 21201. THE CONTROVERSY 9. Since 1949, Morris has been a leading manufacturer of packaged refrigeration

equipment, engaging both domestic and worldwide export markets.

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Morris is involved in the development and sale of commercial poultry chillers,

water rechillers, heat exchangers, ingredient pumps, industrial ice makers, and ice rakes and bins. 11. Morris is the owner, by assignment, of all right, title, and interest in and to U.S.

Patent No. 7,470,173 B2, entitled Post Chill Decontamination Tank, which issued from the United States Patent and Trademark Office on December 30, 2008, and is hereinafter referred to as the 173 patent. 12. 13. A copy of the 173 patent is attached here to as Exhibit A. Morris 173 patent describes that a post chill decontamination tank assembly

may be positioned at the exit end of a chiller of a poultry processing line such that eviscerated birds enter the post chill decontamination tank. 14. Morris 173 patent describes that paddles in the tank revolve about an axis and

collect and lift the birds through liquid in the tank for discharge from the tank. 15. Morris 173 patent describes that an antimicrobial substance may be added to

the liquid in the tank for treating the exposed surfaces of the birds while in the post chill decontamination tank. 16. According to its Internet web site at www.perdue.com, Defendant is one of the

leading poultry companies in the United States. 17. Defendant owns and/or operates a number of poultry processing facilities in the

United States, including facilities located in Lewiston, North Carolina and in Milford, Delaware.

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At one or more of its poultry processing facilities, Defendant uses and/or has

used a product identified as KillCAT, which is a pathogen reduction system, which Defendant purchased from Cooling and Applied Technology, Inc., an Arkansas corporation located at 202 S. Erie, Russellville, Arkansas 72801 (hereinafter referred to as CAT). 19. More specifically, via a purchase order issued by Defendant on or about

February 16, 2009 to CAT, Defendant purchased three KillCAT units and other related equipment from CAT for installation and use at Defendants Lewiston, North Carolina facility. 20. The three KillCAT units that Defendant purchased from CAT were installed at

Defendants Lewiston, North Carolina facility on or about May 2009 and thereafter placed into operational service. 21. Upon information and belief, the three KillCAT units at Defendants Lewiston,

North Carolina facility are and/or remain in use by Defendant. 22. 23. Lewiston, North Carolina is within this judicial district. Via a purchase order issued by Defendant on or about January 13, 2009 to CAT,

Defendant purchased two KillCAT units and other related equipment from CAT for installation and use at Defendants Milford, Delaware facility. 24. The two KillCAT units that Defendant purchased from CAT were installed at

Defendants Milford, Delaware facility on or about April 2009 and were thereafter placed into operational service. 25. Upon information and belief, the two KillCAT units at Defendants Milford,

Delaware facility are and/or remain in use by Defendant.

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Morris and CAT are currently involved in another litigation pending before this

Court, styled Morris & Associates, Inc. v. Cooling & Applied Technology, Inc., Civ. Action No. 5:09-cv-23 BR, (E.D. NC) (hereinafter the Morris-CAT litigation). 27. The Morris-CAT litigation is a patent infringement litigation wherein Morris

alleges that CAT infringes Morris 173 patent by making, using, selling, offering for sale, and/or importing CATs KillCAT units. See Morris-CAT litigation Complaint, Doc. 1. 28. In the Morris-CAT litigation, on or about September 20, 2010, this Court granted

Morris motion for summary judgment of patent infringement by CAT of claims 1, 2, 5-10, 12, & 17 of the 173 patent based on CATs making, using, selling, offering for sale, and/or importing CATs KillCAT units. See Morris-CAT litigation, Order, Doc. 97. 29. In the Courts Order of September 20, 2010 in the Morris-CAT litigation, the

Court adopted Magistrate Judge David W. Daniels Memorandum and Recommendation of August 20, 2010 that recommended granting Morris motion for summary judgment of CATs infringement of the 173 patent based in part on the Courts conclusion that Defendants use of CATs KillCAT at Defendants Milford, Delaware facility constituted direct infringement of the 173 patent. See Doc. 97, Order & Doc. 78, Memorandum and Recommendation, at 9-10. 30. In the Morris-CAT litigation, on or about October 20, 2010, the Court granted

Morris motion for a preliminary injunction against CAT enjoining CAT from making, using, selling, offering for sale, and/or importing CATs KillCAT units. See Morris-CAT litigation, Doc. 101, Order Granting Preliminary Injunction.

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In the Morris-CAT litigation, the Court enjoined CAT from making, using, selling,

offering for sale, and/or importing CATs KillCAT units in part because of Defendants stipulat[ion] to entry of summary judgment of infringement under the facts of the KillCAT application at Perdue Farms, Milford, DE unless the 173 patent was otherwise found to be invalid and unenforceable, which the Court deemed unlikely. See Doc. 69, Memorandum and Recommendations, at 6. 32. On or about October 9, 2009, Morris served a deposition and document

subpoena on Defendant in connection with the Morris-CAT litigation. See Morris-CAT litigation Doc. 33, Affidavit of Service of Subpoena. 33. Defendant has had specific knowledge and awareness of the 173 patent at least

since October 9, 2009. 34. Defendant was deposed in the Morris-CAT litigation on November 6, 2009 and

again on November 30, 2009 with respect to Defendants purchase, installation, and use of CATs KillCAT units. 35. Upon information and belief, Defendant has had specific knowledge and

awareness at least since November 6, 2009, if not earlier, of the fact that its aforementioned use of CATs KillCAT units infringes the 173 patent. 36. Defendant has in the past and continues to at least use one or more products,

services, and/or processes that constitute direct infringement of one or more claims of the 173 patent in violation of 35 U.S.C. 271, including without limitation CATs KILLCAT unit.

COUNT ONE: INFRINGEMENT OF U.S. PATENT NO. 7,470,173 37. Morris re-alleges and incorporates herein the allegations of the preceding

paragraphs of this Complaint as if fully set forth herein. 38. Defendant has in the past and continues to make, have made, offer for sale, sell,

use, and/or import into the United States one or more products, services, and/or processes that constitute direct infringement of one or more claims of Morris 173 patent in violation of 35 U.S.C. 271, including, but not necessarily limited to, Defendants KILLCAT pathogen reduction system product. 39. 40. Defendants infringement has been, and continues to be, willful. Morris has and continues to suffer damages as a result of Defendants

infringement of Morris 173 patent, and will suffer additional and irreparable damages unless Defendant is permanently enjoined by this Court from continuing its infringement. Morris has no adequate remedy at law. 41. Because of Defendants infringement of Morris 173 patent, Morris is entitled

to: (1) damages adequate to compensate it for Defendants infringement, which amounts to, at a minimum, a reasonable royalty; (2) treble damages; (3) its attorney fees and costs; and (4) a preliminary and permanent injunction. PRAYER FOR RELIEF WHEREFORE, Plaintiff Morris prays that the Court enter judgment in favor of Plaintiff and against Defendant as follows:

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That Defendant, pursuant to 35 U.S.C. 284, be ordered to pay damages

adequate to compensate Morris for Defendants infringement of Morris United States Patent No. 7,470,173; B. That Defendant, pursuant to 35 U.S.C. 284 and 285, be ordered to pay treble

damages and attorneys fees; C. That Defendant, pursuant to 35 U.S.C. 283, be enjoined from further

infringement of Morris United States Patent No. 7,470,173; D. That Defendant be ordered to pay prejudgment interest and all costs associated

with this action; and E. That Morris be granted such other and additional relief as the Court deems just,

equitable, and proper.

DEMAND FOR JURY TRIAL Pursuant to Fed. R. Civ. P. 38(b), Plaintiff Morris demands a trial by jury of all issues triable of right by a jury. This 11th day of August, 2011 /s/ James P. West James P. West (jpwest@westlawpc.com) North Carolina Bar No. 18019 WEST LAW OFFICES, P.C. Suite 2325, Two Hannover Square 434 Fayetteville Street Raleigh, NC 27601 Telephone: (919)856-8800 Facsimile: (919)856-8801 (The following counsel to make Special Appearance pursuant to Local Civil Rule 83.1(3), EDNC) N. Andrew Crain (andrew.crain@tkhr.com) Georgia State Bar No. 193081 Melissa Rhoden (melissa.rhoden@tkhr.com) Georgia State Bar No. 143160 THOMAS, KAYDEN, HORSTEMEYER & RISLEY, LLP 600 Galleria Parkway, S.E., Suite 1500 Atlanta, GA 30339 Telephone: (770) 933-9500 Facsimile: (770) 951-0933 Attorneys for Plaintiff, Morris & Associates, Inc.