THE STATE OF NEW HAMPSHIRE
SUPERIOR COURT
ROCKINGHAM COUNTY / / COURT
/XX/ JURY
WRIT OF SUMMONS
Conceptronic, Inc. Vitronics Corporation
6 Post Road 4 Forbes Road
Portsmouth, NH 03801 v. New Market, NH 03857
James J. Manfield, Jr.
27 North Shore Road
Hampton, NH 03842
The Sheriff or Deputy of any County is ordered to summon each defendant to
file a written appearance with the Superior Court at the address listed below
by the return day of this writ which is the first Tuesday of February, 1997.
MONTH YEAR
The PLAINTIFF(S) state(s): See Attached Declaration.
A TRUE COPY: ATTEST
[illegible]
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DEPUTY SHERIFF
and the Plaintiff(s) claim(s) damages within the jurisdictional limits of this
Court.
George R. Moore, Esq. 12/20/96
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INDORSER (sign and print name) DATE OF WRIT
NOTICE TO THE DEFENDANT
The Plaintiff listed above has begun legal action against you. You do not
have to physically appear in Court on the return day listed above since there
will be no hearing on that day. However, if you intend to contest this
matter, you or your attorney must file a written appearance form with the
Clerk's Office by that date. (Appearance forms may be obtained from the
Clerk's Office.) You will then receive notice from the Court of all
proceedings concerning this case. If you fail to file an appearance by the
return day, judgment will be entered against you for a sum of money which you
will then be obligated to pay.
Witness, JOSEPH P. NADEAU, Chief Justice, Superior Court.
[illegible]
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SIGNATURE OF PLAINTIFF/ATTORNEY
/s/ Raymond W. Taylor George R. Moore
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Raymond W. Taylor, Clerk PRINTED/TYPED NAME
NH Superior Court Rockingham County Devine, Millimet & Branch, P.A.
Administration and Justice Building 111 Amherst Street
Exeter NH 03833 -------------------------------
(603) 772-3714 ADDRESS
Manchester, NH 03101 /(603)669-1000
213-003-6 -----------------------------------
PHONE
DECLARATION
A.THE PARTIES
1. Plaintiff is a Delaware corporation with a principal place of business
in Portsmouth, New Hampshire.
2. Defendant Vitronics Corporation ("Vitronics") is a Delaware
corporation with a principal place of business in Newmarket, New Hampshire.
3. James J. Manfield, Jr. is an individual and an officer of Vitronics who
resides in Rye, New Hampshire and who authorized, controlled, directed and
initiated the tortious acts set forth herein.
B.JURISDICTION AND VENUE
4. This Court has jurisdiction of this cause in that it is a claim under
New Hampshire state law for malicious prosecution and abuse of process. Venue
is proper in that Plaintiff and Defendant Vitronics reside and does business
in this county and Defendant Manfield resides in this county.
C.THE PRIOR LITIGATION
5. Plaintiff and Defendant Vitronics are competitors in the business of
manufacturing and selling solder reflow ovens for use in the electronics
industry.
6. On or around November 26, 1991, Defendant Vitronics brought suit for
patent infringement of U.S. Patent No. 4,833,301 ("the '301 patent") against
Plaintiff in the United States District Court for the District of New
Hampshire ("the Prior Litigation").
7. In the Prior Litigation, Defendant Vitronics alleged that Plaintiff
infringed claim 1 of the '301 patent.
8. Defendant Manfield authorized, directed, controlled and initiated the
decision that caused Defendant Vitronics to bring and maintain the action
against Plaintiff in the Prior Litigation.
9. During prosecution of the application for the '301 patent in the United
States Patent and Trademark Office ("PTO"), Defendant Vitronics withheld from
the PTO a number of Defendant Vitronics' own documents that were material and
relevant prior art to the subject matter of one or more claims of the '301
patent. Defendant Vitronics' thereby breached its obligation of full
disclosure.
10. Among the prior art Vitronics document withheld from the PTO were the
Vitronics Model 1336 Solder Reflow System brochure and the Vitronics IR
Source newsletter.
11. As a result of Defendant Vitronics' breach of its obligation of full
disclosure to PTO, the application for claim 1 of the '301 patent was granted
in error and the patent issued on May 23, 1989.
12. In a subsequent reexamination proceeding brought by Plaintiff in the PTO,
claim 1 of the '301 patent was found by the PTO to be unpatentable in view of
the prior art that Defendant Vitronics had withheld from the PTO during
prosecution of the '301 patent application.
13. Notwithstanding the PTO finding in reexamination that claim 1 of
the '301 patent is unpatentable, Defendant Vitronics maintained its action
against Plaintiff in the Prior Litigation for infringement of said claim.
14. At the time that Defendant Vitronics filed the complaint
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in the Prior Litigation, and throughout said proceedings, Defendants knew or
should have known that claim 1 of the '301 patent was invalid and/or
unenforceable.
15. At the time that Defendant Vitronics filed the complaint in the Prior
Litigation, and throughout said proceedings, Defendants knew or should have
known that claim 1 of the '301 patent was not infringed by the Mark Series
and HVC products of Plaintiff that were the subject of the Prior Litigation.
16. Based upon its assertion of infringement of claim 1 of the '301 patent,
and notwithstanding the PTO finding in reexamination that claim 1 of the '301
patent is unpatentable, Defendant Vitronics requested the district court in
the Prior Litigation inter alia to issue a permanent injunction against
Plaintiff to preclude Plaintiff from manufacturing, using and selling the
Mark Series and HVC Series ovens.
17. In spite of Defendants' knowledge that the Mark Series and HVC Series
products did not infringe claim 1 of the '301 patent and that claim 1 of the
'301 patent is invalid and/or unenforceable, Defendant Vitronics maintained
such suit with malice and without probable cause for its own improper and
unlawful purposes.
18. On August 16, 1995, the jury returned a unanimous 9-0 verdict that the
Mark Series products of Plaintiff do not infringe claim 1 of the '301 patent.
19. On August 16, 1995, the jury returned a unanimous 9-0 verdict that
the HVC Series products of Plaintiff do not infringe claim 1 of the
'301 patent.
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20. The jury returned its verdict in the Prior Litigation after less than
one hour of deliberation.
21. On or around August 18, 1995, the United States District Court for the
District of New Hampshire entered judgment in favor of Plaintiff on Defendant
Vitronics' claim for infringement of claim 1 of the '301 patent and said
judgment was not appealed and is now final and binding upon Defendant
Vitronics.
COUNT I
22. The Plaintiff reasserts and realleges paragraphs 1-21 above as if set
forth in full herein.
23. This is a count under New Hampshire law for malicious prosecution.
24. The tortious acts of the Defendants set forth above constitute malicious
prosecution in that Defendants' actions caused the filing and prosecution of a
civil proceeding for infringement of claim 1 of the '301 patent with malice
and without probable cause and said proceeding terminated in favor of
Plaintiff.
25. Defendants' malicious prosecution of the claim for infringement of
claim 1 of the '301 patent in the Prior Litigation has caused harm and
damage, reparable and irreparable, to Plaintiff.
26. The monetary damages caused by Defendant Vitronics' malicious
prosecution are no less than $1,300,000.00 in expenses and attorney's fees.
The tortious acts of Defendants set forth above have caused damage to
Plaintiff in that such acts were intended to and did cause a significant loss
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of sales and revenue to the Plaintiff and thereby diminished Plaintiff's
ability to expand such sales and revenues. The remainder of the actual,
consequential and/or increased damages are in excess of and therefore satisfy
the jurisdictional limits of this Court.
COUNT II
27. The Plaintiff reasserts and realleges paragraphs 1-26 above as if set
forth in full herein.
28. This is a count under New Hampshire law for abuse of process.
29. The tortious acts of the Defendants set forth above constitute abuse
of process in that the Defendants used legal process against Plaintiff
primarily to accomplish a purpose for which such process is not designed and
such abuse of process caused harm to Plaintiff.
30. The Defendants' abuse of process regarding claim 1 of the '301 patent
in the Prior Litigation has caused harm and damage, reparable and
irreparable, to Plaintiff.
31. The monetary damages caused by Defendants' abuse of process are no
less than $1,300,000.00 in expenses and attorneys' fees. The tortious
acts of Defendants set forth above have caused damage to Plaintiff in that
such acts were intended to and did cause a significant loss of sales and
revenue to the Plaintiff and thereby diminished Plaintiff's ability to expand
such sales and
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revenues. The remainder of the actual, consequential and/or increased damages
are in excess of and therefore satisfy the jurisdictional limits of this
Court.
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