Complaint for Patent Infringement and Jury Demand

Home , NHK Spring Company

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[UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

LEAR CORPORATION, Case No.

Hon. Plaintiff, v.

NHK SPRING COMPANY, LTD and NHK INTERNATIONAL INC. JURY TRIAL DEMANDED

Defendants.

COMPLAINT FOR PATENT INFRINGEMENT AND JURY DEMAND

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I. THE PARTIES

1. Plaintiff Lear Corporation (“Lear”) is a Delaware corporation, having its principal place of business at 21557 Telegraph Road, Southfield, Michigan

48086.

2. Upon information and belief, Defendant NHK Spring Co. Ltd. (“NHK

Japan”) is a Japanese corporation, having its principal place of business at 3-10

Fukuura, Kanazawaku, Yokohama, 236-0004, Japan.

3. Upon information and belief, Defendant NHK International, Inc.

(“NHK International”) is a Michigan corporation, having its principal place of business at 46855 Magellan Drive, Novi, Michigan 48377.

4. Upon information and belief, NHK International was incorporated by, and is a wholly owned subsidiary of, NHK Japan.

5. Upon information and belief, as confirmed by the NHK International website (Exhibit F, http://www.nhkinternational.com/manufacturing-capabilities/),

“NHK International is the North American headquarters for its global corporate parent company, NHK Spring Co., Ltd in Yokohama, Japan” and “functions as the corporate, sales, and R&D headquarters providing advanced engineering solutions, product design, testing and sales support to all of NHK’s North American manufacturing facilities.”

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6. As also confirmed by the NHK International Corporation LinkedIn site

(Exhibit G, https://www.linkedin.com/company/10595899/), “NHK International

Corporation is the North American Headquarters of NHK Spring Co. Ltd.”

7. Upon information and belief, NHK Seating of America, Inc. (“NHK

America”) is a Michigan corporation, having its principal place of business at 2298

West State Road 28, Frankfort, Indiana 46041.

8. Lear is plaintiff and NHK America is defendant in a currently-pending patent infringement lawsuit in the Eastern District of Michigan (Case No. 2:13-cv-

12937-LJM-RSW). The same patents asserted by Lear in this case are asserted by

Lear in that case.

9. Upon information and belief, NHK America was incorporated by, and is a wholly owned subsidiary of, NHK Japan or NHK International.

10. Upon information and belief, when NHK America was incorporated in

2006, NHK Japan picked the Board of Directors for NHK America.

11. Upon information and belief, when NHK America was incorporated, at least two NHK America Board members, i.e., Masahiko Kimura and Katsuichi

Ikeda, also served as NHK International Board member/officer(s).

12. Upon information and belief, the current president of NHK America, i.e., Yuji Shibuya, is also a corporate officer of NHK Japan.

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13. Upon information and belief, NHK International and NHK America shared corporate headquarters until 2008.

14. NHK America lists an address in Japan as its site address for design and testing – the same address that NHK Japan uses. (Exhibit H, highlighting added.)

15. Upon information and belief, NHK Japan, NHK International, and

NHK America, have and still do share corporate officers and directors, including at least those shown in the table below:

Summary of Executives of the NHK Companies Name NHK America NHK International NHK Japan Hiroyuki Kado 2016 Director 2017 Exec. Vice President

2017 President, Secretary Ko Masuda 2016 President 2017 Senior Corp. Officer Hideto Enomoto 2016 Director 2017 Senior Corp. Officer Toshiyuki Aoyagi 2016 Director 2017 Corp. Officer Hidefumi Yoshimura 2015 Director 2017 Senior Corp. Officer

2015 Director 2017 Executive Corp. Toru Sugiyama 2016 Director 2015 Director Officer

2017 Director 2016 President, Director 2015 President, Director 2014 President, Director Tatsuro Ono 2013 President, Director 2017 Corp. Officer Kiyohiko Kammei 2015 Director 2017 Senior Corp. Officer Yuji Shibuya 2017 President 2017 Corp. Officer 2006 President & CEO, Katsuichi Ikeda 2006 Board of Directors Director Masahiko Kimura 2006 Board of Directors 2006 Director

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II. JURISDICTION AND VENUE

16. Plaintiff Lear hereby incorporates by reference the allegations contained in paragraphs 1-15, and all of the following paragraphs, as though fully stated herein.

17. Claims pleaded herein arise under the Patent Act, 35 U.S.C. §1 et seq.

18. This Court has subject matter jurisdiction for the pleaded claims under

28 U.S.C. §§ 1331 and 1338.

19. This Court has personal jurisdiction over the Defendants because, among other things, the Defendants have aided, encouraged, urged, directed, induced, and/or participated in the commission of patent infringement in this judicial district and elsewhere that led to foreseeable harm and injury to Lear.

20. Specifically, each of Defendants, directly, through each other, and/or through others or intermediaries, such as NHK America, supply active head restraint systems (“NHK Active Head Restraint Systems”) that are incorporated into vehicle seat assemblies, with the knowledge, understanding, and desire that such seat assemblies having the NHK Active Head Restraint Systems and/or vehicles with seat assemblies having the NHK Active Head Restraint Systems are and have been offered for sale, sold, purchased, and used, within the State of Michigan and this

Eastern District of Michigan, thereby infringing patents assigned to Lear and injuring Lear.

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21. Each of the Defendants, directly, through each other, and/or through others or intermediaries, such as NHK America, place NHK Active Head Restraint

Systems into the stream of commerce with the knowledge, understanding, and desire that the NHK Active Head Restraint Systems will be incorporated into seat assemblies that are sold all over the United States, within the State of Michigan and this Eastern District of Michigan, as seat assemblies having the NHK Active Head

Restraint Systems and/or vehicles with seat assemblies having the NHK Active Head

Restraint Systems, thereby infringing patents assigned to Lear and injuring Lear.

22. In addition, this Court has personal jurisdiction over Defendant NHK

International because it is a Michigan corporation, having its principal place of business at 46855 Magellan Drive, Novi, Michigan 48377, and has designated an agent for process of service in this district.

23. In addition, this Court has personal jurisdiction over Defendant NHK

Japan because NHK Japan maintains its North American headquarters, NHK

International, in Novi, Michigan, and directly and/or through at least NHK

International (1) carries on a continuous and systematic part of its general business in Michigan, including within this district, (2) transacts business in Michigan, including within this district, (3) has established a channel for providing regular advice and/or for marketing products to customers in Michigan, including within

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this district, and/or (4) owns, uses, and/or possesses real or tangible personal property situated in Michigan, within this district.

24. Venue is proper in this district under 28 U.S.C. § 1400 as to NHK

International because it is a Michigan corporation.

25. Venue is proper in this district under 28 U.S.C. § 1391(c) as to NHK

Japan because NHK Japan is not incorporated in any of the United States.

III. PATENTS-IN-SUIT

26. Plaintiff Lear hereby incorporates by reference the allegations contained in paragraphs 1-25, and all of the following paragraphs, as though fully stated herein.

27. On January 3, 1995, U.S. Patent No. 5,378,043 (“the ‘043 patent”), for

“Vehicle Pivotal Headrest,” was duly and lawfully issued, naming David C. Viano,

Richard J. Neely and Mladen Humer as inventors. A copy of the ‘043 patent is attached as Exhibit A.

28. Plaintiff Lear is the owner by assignment of the ‘043 patent.

29. Pursuant to agreements and communications between Lear and defendants NHK Japan, NHK International, and/or NHK America, defendants NHK

International and/or NHK Japan have had knowledge of the ‘043 patent at least since

December 3, 2002, and have known of the infringement set forth in this complaint

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since at least July 31, 2006 or earlier, when unable to provide a reasonable non- infringement position.

30. On October 14, 2003, U.S. Patent No. 6,631,949 (“the ‘949 patent”), for “Variable Movement Headrest Arrangement,” was duly and lawfully issued, naming Mladen Humer, Yan Fan and Magnus Roland as inventors. A copy of the

‘949 patent is attached as Exhibit B.

31. Plaintiff Lear is the owner by assignment of the ‘949 patent.

32. Pursuant to communications between Lear and NHK Japan, NHK

International, and/or NHK America, NHK International and/or NHK Japan have had knowledge of the ‘949 patent at least since August 8, 2007 and have known of the infringement set forth in this complaint after that date, and since at least February 1,

2008 or earlier, when unable to provide a reasonable non-infringement position.

33. On December 2, 2003, U.S. Patent No. 6,655,733 (“the ‘733 patent”), for “Variable Movement Headrest Arrangement,” was duly and lawfully issued, naming Mladen Humer and Yan Fan as inventors. A copy of the ‘733 patent is attached as Exhibit C.

34. Plaintiff Lear is the owner by assignment of the ‘733 patent.

35. Pursuant to communications between Lear and defendants NHK Japan,

NHK International, and/or NHK America, defendants NHK International and/or

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NHK Japan have had knowledge of the ‘733 patent at least since August 8, 2007 and have known of the infringement set forth in this complaint after that date.

36. On November 25, 2008, U.S. Patent No. 7,455,357 (“the ‘357 patent”), for “Active Head Restraint System For A Vehicle Seat,” was duly and lawfully issued, naming Mladen Humer, Gerald S. Locke and Arjun V. Yetukuri as inventors.

A copy of the ‘357 patent is attached as Exhibit D.

37. Plaintiff Lear is the owner by assignment of the ‘357 patent.

38. Pursuant to communications between Lear and defendants NHK Japan,

NHK International, and/or NHK America, NHK International and/or NHK Japan have had knowledge of the ‘357 patent at least since September 30, 2009 and have known of the infringement set forth in this complaint after that date, and since at least August 20, 2010 or earlier, when unable to provide a reasonable non- infringement position.

39. On May 7, 2013, U.S. Patent No. 8,434,818 (“the ‘818 patent”), for

“Variable Seat Having Active Head Restraint,” was duly and lawfully issued, naming Mladen Humer, Nagarjun Yetukuri, Gerald Locke and Dale Smallwood as inventors. A copy of the ‘818 patent is attached as Exhibit E.

40. Plaintiff Lear is the owner by assignment of the ‘818 patent.

41. Defendants NHK International and/or NHK Japan have had knowledge of the ‘818 patent, and of the infringement of the ‘818 patent set forth in this

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Complaint, since at least since the filing of the Complaint in 2013 for the currently- pending patent infringement case against NHK America (Case No. 2:13-cv-12937-

LJM-RSW). .

IV. GENERAL ALLEGATIONS

42. Plaintiff Lear hereby incorporates by reference the allegations contained in paragraphs 1-41, and all of the following paragraphs, as though fully stated herein.

43. NHK Japan and/or NHK International design(s) and develop(s) active head restraint systems (“NHK Active Head Restraint Systems”) especially made and adapted for seat assemblies in vehicles, and makes and tests equipment for manufacturing NHK Active Head Restraint Systems.

44. Upon information and belief, NHK Japan and/or NHK International have offered for sale and/or sell NHK Active Head Restraint Systems to at least

Toyota Motor North America, Inc., Toyota Motor Engineering & Manufacturing

North America and/or another related Toyota entity (collectively “Toyota”), whether directly or through another related Toyota entity, knowing and intending that Toyota will make, use, offer to sell, sell, and/or import, seat assemblies having the NHK

Active Head Restraint Systems and/or vehicles with seat assemblies having the NHK

Active Head Restraint Systems, throughout the United States, including in the

Eastern District of Michigan.

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45. NHK Japan and/or NHK International have aided, encouraged, urged, directed, and/or controlled NHK America, with NHK America’s assent and with

NHK America acting on behalf and as an instrumentality of NHK Japan and/or NHK

International, to make NHK Active Head Restraint Systems designed by NHK Japan and/or NHK International, using the manufacturing equipment made, tested, and supplied by NHK Japan and/or NHK International, and to make and use NHK Active

Head Restraint Systems, and to offer for sale, supply and/or sell NHK Active Head

Restraint Systems to Toyota.

46. Upon information and belief, NHK Japan and/or NHK International have further aided, encouraged, urged, directed, and/or controlled NHK America, with NHK America’s assent and with NHK America acting on behalf and as an instrumentality of NHK Japan and/or NHK International, to make and use NHK

Active Head Restraint Systems and to offer for sale, supply, and/or sell NHK Active

Head Restraint Systems to Toyota, by providing NHK Active Head Restraint

Systems manufacturing assistance, including startup assistance, equipment inspections, and quality control assistance.

47. Pursuant to the aid, encouragement, urging, direction, and/or control of

NHK Japan and/or NHK International, NHK America, with NHK America’s assent and with NHK America acting on behalf and as an instrumentality of NHK Japan and/or NHK International, makes NHK Active Head Restraint Systems designed by

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NHK Japan and/or NHK International, using the manufacturing equipment made, tested, and supplied by NHK Japan and/or NHK International, and offers for sale, supplies, and/or sells NHK Active Head Restraint Systems to Toyota.

48. Upon information and belief, with such aid, encouragement, urging, direction, and/or control of NHK Japan and/or NHK International, NHK America has been making the NHK Seating Active Head Restraint Systems since at least 2006 and has been selling and/or supplying them to at least Toyota.

49. NHK Japan and/or NHK International, and NHK America have known and intended that Toyota will make, use, offer to sell, sell, and/or import, seat assemblies having the NHK Active Head Restraint Systems, and/or vehicles with seat assemblies having the NHK Active Head Restraint Systems, throughout the

United States, including in the Eastern District of Michigan.

50. The Toyota model vehicles in which the NHK Active Head Restraint

Systems have been used in seat assemblies and sold include, at least, the 2009-2015

Toyota Tacoma, the 2009-2013 Toyota Corolla, the 2009-2013 Toyota Matrix, the

2009-2011 Toyota (Lexus) RX, , the 2009-2015 Toyota Venza, the 2009-2014

Toyota RAV 4, the 2008-2013 Toyota Highlander, , the 2008-2018 Toyota Land

Cruiser, 2008-2014 Toyota FJ Cruiser, 2008-2012 Toyota Avalon, 2008-2014

Toyota Scion XD, and likely additional Toyota vehicles.

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51. Toyota has directly infringed claims of the ‘043, ‘949, ‘733, ‘357 and

‘818 patents (“All Asserted Patents”) by making, using, offering to sell, and/or selling in the United States, and/or importing into the United States, seat assemblies having the NHK Active Head Restraint Systems and/or vehicles with seat assemblies having the NHK Active Head Restraint Systems. Such direct infringement is shown by the preliminary claim charts previously served on NHK America and attached as

Exhibits I-M.

52. The NHK Active Head Restraint Systems are not a staple article or commodity of commerce suitable for any substantial use other than as a material part of a seat assembly.

V. AGENCY AND ALTER EGO RELATIONSHIPS

53. Plaintiff Lear hereby incorporates by reference the allegations contained in paragraphs 1-52, and all of the following paragraphs, as though fully stated herein.

54. NHK Japan, NHK International, and NHK America are alter egos for each other, operate as agents for each other, and are collectively liable for the actions of each other, for at least the following reasons:

a. As set forth in paragraphs 10-15 of this complaint, NHK Japan,

NHK International, and NHK America share common directors

and officers.

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b. As set forth in paragraphs 5-6 of this complaint, NHK

International is the North American Headquarters of NHK Japan.

c. As set forth in paragraphs 4 and 9 of this complaint, NHK Japan

incorporated NHK International and NHK Japan or NHK

International incorporated NHK America.

d. As set forth in paragraph 13 of this complaint, NHK America and

NHK International shared the same corporate headquarters at one

time.

e. As set forth in paragraph 14 of this complaint, NHK America

lists an address in Japan as its site address for design and testing

– the same address that NHK Japan uses.

f. As confirmed during a September 11, 2017 conference with

counsel for NHK America, NHK America has the ability to

request and procure documents from NHK Japan when needed,

i.e., NHK America has control over documents in the possession

of NHK Japan.

g. As set forth in paragraph 45 of this complaint, NHK Japan and/or

NHK International have aided, encouraged, urged, directed,

and/or controlled NHK America, with NHK America’s assent

and with NHK America acting on behalf and as an

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instrumentality of NHK Japan and/or NHK International, to

make NHK Active Head Restraint Systems designed by NHK

Japan and/or NHK International, using manufacturing equipment

made and supplied by NHK Japan and/or NHK International, and

to offer for sale, supply, and sell NHK Active Head Restraint

Systems to Toyota.

h. As set forth in paragraph 46 of this complaint, and upon

information and belief, NHK Japan and/or NHK International

have further aided, encouraged, urged, directed, and/or

controlled NHK America, with NHK America’s assent and with

NHK America acting on behalf and as an instrumentality of NHK

Japan and/or NHK International, to make and use NHK Active

Head Restraint Systems and to offer for sale, supply, and/or sell

NHK Active Head Restraint Systems to Toyota, by providing

NHK Active Head Restraint Systems manufacturing assistance,

including startup assistance, equipment inspections, and quality

control assistance..

i. As set forth in paragraph 47 of this complaint, pursuant to the

aid, encouragement, urging, direction, and/or control of NHK

Japan and/or NHK International, NHK America, with NHK

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America’s assent and with NHK America acting on behalf and

as an instrumentality of NHK Japan and/or NHK International,

makes NHK Active Head Restraint Systems designed by NHK

Japan and/or NHK International, using the manufacturing

equipment made, tested, and supplied by NHK Japan and/or

NHK International, and offers for sale, supplies, and/or sells

NHK Active Head Restraint Systems to Toyota.

j. As set forth in paragraph 48 of this complaint, with such aid,

encouragement, urging, direction, and/or control of NHK Japan

and/or NHK International, NHK America has been making the

NHK Active Head Restraint Systems since at least 2008 and has

been selling and/or supplying them to at least Toyota.

k. As set forth in paragraph 49 of this complaint, NHK Japan, NHK

International, and/or NHK America have known and intended

that Toyota will make, use, offer to sell, sell, and/or import, seat

assemblies having the NHK Active Head Restraint Systems,

and/or vehicles with seat assemblies having the NHK Active

Head Restraint Systems, throughout the United States, including

in the Eastern District of Michigan.

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VI. COUNT I - CONTRIBUTORY PATENT INFRINGEMENT

55. Plaintiff Lear hereby incorporates by reference the allegations contained in paragraphs 1-54, and all of the following paragraphs, as though fully stated herein.

56. NHK Japan and NHK International, individually, collectively, or through others or intermediaries, such as NHK America, has contributorily infringed, and/or is contributorily infringing, claims of all Asserted Patents by making, using, offering for sale, selling, and/or importing, the NHK Active Head

Restraint Systems which are a material part of the seat assembly inventions of All

Asserted Patents, which are not a staple article or commodity of commerce suitable for substantial non-infringing use, and knowing the NHK Active Head Restraint

Systems to be especially made or especially adapted for use in an infringement of such claims of All Asserted Patents.

VII. COUNT II – INDUCEMENT OF PATENT INFRINGEMENT

57. Plaintiff Lear hereby incorporates by reference the allegations contained in paragraphs 1-56, and all of the following paragraphs, as though fully stated herein.

58. NHK Japan and NHK International individually, -collectively, or through others or intermediaries, such as NHK America, has aided, encouraged, urged, and/or directed, Toyota to make, use, offer to sell, and/or sell in the United

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States, and/or import into the United States, seat assemblies having the NHK Active

Head Restraint Systems and/or vehicles with seat assemblies having the NHK Active

Head Restraint Systems, and to accordingly infringe claims of all asserted patents.

59. NHK Japan and NHK International, individually and/or jointly, or through others or intermediaries, such as NHK America, through such aiding, encouraging, urging, directing, and/or control has induced at least Toyota to make, use, sell, and/or offer for sale in the United States, and/or import into the United

States, the claimed subject matter of All Asserted Patents, and to infringe one or more claims of All Asserted Patents, without the authority of Lear, knowing that such induced acts constitute infringement and/or intending at least Toyota to infringe.

VIII. COUNT III – DIRECT INFRINGEMENT

60. Plaintiff Lear hereby incorporates by reference the allegations contained in paragraphs 1-59, and all of the following paragraphs, as though fully stated herein.

61. Upon information and belief, NHK Japan and NHK International individually, collectively, or through others or intermediaries, such as NHK

America, has directly infringed and/or is directly infringing claims of All Asserted

Patents by making and/or using seat assemblies including the NHK Active Head

Restraint Systems in the United States, for testing purposes or otherwise, an

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allegation that will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

IX. HARM

62. Plaintiff Lear hereby incorporates by reference the allegations contained in paragraphs 1-61 as though fully stated herein.

63. Plaintiff Lear has been harmed, pecuniarily and irreparably, by the infringing conduct of the NHK Collective, individually and/or jointly, and such harm will continue unless the NHK Collective, individually and/or jointly, is enjoined from further infringement by this Court.

X. DEMAND FOR RELIEF

WHEREFORE, plaintiff Lear requests entry of a judgment against the defendants NHK Japan and NHK International, individually and/or jointly, granting relief as follows.

A. Finding NHK Japan and NHK International individually and/or

jointly, liable to plaintiff Lear for infringement of the ‘043, ‘949, ‘733, ‘357

and ‘818 patents;

B. Awarding plaintiff Lear damages adequate to compensate for

such infringement;

C. Increasing the damages up to three times, under authority of 35

U.S.C. §284, ¶2;

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D. Finding the case “exceptional,” under 35 U.S.C. §285, and

awarding plaintiff Lear its costs, including reasonable attorney’s fees;

E. Preliminarily and permanently enjoining NHK Japan and NHK

International, individually and/or jointly, and their officers, agents, servants,

employees, and attorneys, and those persons in active concert or participation

with them who receive actual notice of the injunction, from further

infringement of the ‘043, ‘949, ‘733, ‘357 and ‘818 patents; and

F. Granting such other, further and different relief as may be just

and equitable on the proofs.

XI. DEMAND FOR JURY TRIAL

Plaintiff Lear demands trial by jury for all issues so triable.

Respectfully submitted,

BROOKS KUSHMAN P.C. Dated: February 21, 2018 /s/ John M. Halan John M. Halan (P37616) Frank A. Angileri (P45611) Todd W. Dishman (P77562) 1000 Town Center, Twenty-Second Floor Southfield, Michigan 48075 Tel: (248) 358-4400 / Fax: (248) 358-3351 Email: [email protected] [email protected] [email protected]

Attorneys for Lear Corporation