III. PLASTICON’S QUESTIONABLE OWNERSHIP OF VALUABLE PATENTS
21. On September 12, 2005, Plasticon caused a press release to be issued entitled “Plasticon Receives Patent Confirmation for PAC Chair III–Plasticon’s Patents Now Valued at $20 Million.” This press release stated that Plasticon “has recently received confirmation of the company’s patent for the PAC Chair III product.” It also stated:
According to an independent appraiser and the federal courts, Plasticon’s recycled plastic product patents are valued at $20 million. Additionally, since the inception of the company, Plasticon has built an inventory of injection molds that the company owns outright, which are presently valued at over $10 million.
5Upon information and belief, Patent “DES. 324,643” refers to U.S. Patent No D324,643, and Canadian Patent “D500,243” refers to U.S. Patent No. D500,243.
Exhibit 7, attached hereto and incorporated herein.
22. In response to Question 22 of Schedule B to the Petition, Plasticon states that it owns the following patents:
a “Patent No. 4,942,714 Slab Bolster U.S.”
b “Patent No. 1,317,474 Slab Bolster Canada”
c “Patent No. DES. 324,643 High Chair U.S.”
d “Patent No. D500,243 High Chair Canada”5
Plasticon states that the value of these patents is “unknown” in contrast to the September 12, 2005 press release, which values the patents at $20 million.
23. A review of the Patent Assignment Abstract of Title available at the website of the Patent Office (www.uspto.gov) for these patents indicates that the present record owner of U.S. Patent Nos. 4,942,714 and D324,643 is Promotional Containers, Inc. (“PCI”), not Plasticon.
Patent Assignment Abstract of Title, Patent No. 4,942,714, attached hereto and incorporated herein as Exhibit 8; Patent Assignment Abstract of Title, Patent No. D324,643, attached hereto and incorporated herein as Exhibit 9. Turek owns and is the President of PCI. Exhibit 1 at F-13.
24. Similarly, the record owners of patent D500,243, which upon information and belief is the “PAC III Chair” referenced in the September 12, 2005 press release, are James N. Turek II and Brandon D. Turek. Patent Assignment Abstract of Title, Patent No. D500,243, attached hereto and incorporated herein as Exhibit 10.
6.The final Assignment and Royalty Agreement between IPI, Dow Credit Corporation and Dow Chemical Company does not mention IPC. Form 8-K (filed Apr. 16, 1999), attached hereto and incorporated herein as Exhibit 13.
25. The Canadian Intellectual Property Office lists “International Plastics, Inc.” (“IPI”) as the owner of Canadian Patent 1,317,474. Canadian Patents Database, CA 1317474, attached hereto and incorporated herein as Exhibit 11.
26. The Abstracts of Title for 4,942,714 and D324,643 reflect that PCI received the patents from “International Plastics Corporation” (“IPC”) in 2004. Exhibits 8-9.
27. Pursuant to the Assignment Abstracts of Title, IPC previously received these patents from IPI in 1999. Id.
28. IPI had filed for relief under chapter 11 of the Bankruptcy Code in this Court in 1992. Case No. 92-52264-jl (filed Dec. 18, 1992). Turek was the corporate representative and, upon information and belief, was a corporate officer, director, and majority shareholder.
29. Pursuant to an Agreed Order entered on July 17, 1998 in the IPI bankruptcy case, IPI’s patents were held by the Clerk of Court in escrow for the benefit of Dow Credit Corporation unless IPI complied with certain terms. Exhibit 12. Upon compliance, the patents would be released to Wicklund Holding Company (now known as Plasticon) in the present case, and IPI would assign the patents to Wicklund. Id. Without explanation, the letter agreement attached to the order is signed by IPC (by Turek as President, Sole Director, Majority Preferred Shareholder, and as President of Wicklund Holding Company on as majority common shareholder).6 Id. Dow Credit Corporation later filed a Notice of Compliance with the terms of the Agreement on August 18, 1999. Exhibit 14, attached hereto and incorporated herein.
30. In January 2005, Plasticon purportedly repurchased these patents and other assets such as molds, a sales contract, and customer base from PCI. Exhibit 2 at F-18. The transfer of the patents, however, was not recorded with the U.S. Patent and Trademark Office. The consideration was a promise to exchange 100,000,000 shares of preferred stock for cash by May 2007 and a promise to pay $500,000 (non interest bearing) by May 2006. Id. As of December 31, 2005, Plasticon owed a balance of $500,000 to PCI as a result of the acquisition. Id.
31. PCI filed three patent infringement suits in the U.S. District Court for the Eastern District of Kentucky on July 20, 2004. Promotional Containers, Inc. v. General Technologies, Inc., 5:04-cv-00334-JBC; Promotional Containers, Inc. v. Concrete Accessories, Inc., 5:04-cv-00335-JBC; and Promotional Containers, Inc. v. Aztec Concrete Accessories, Inc. and Dayton Superior Corporation, 5:04-cv-00336-JBC. As of the date of filing, all three suits are pending, and counsel for PCI (the same law firm that represents Plasticon in this action) has made no effort to substitute Plasticon as a party plaintiff. If Plasticon is in fact the owner of the patents, it would appear that Plasticon is the real plaintiff party in interest.
32. Even more curious, on July 11, 2006, the same law firm representing Plasticon in this case filed a lawsuit in the U.S. District Court for the Eastern District of Kentucky on behalf of “International Plastics Corp., a division of Wickland [sic] Holding Company, a Delaware Corporation, presently known as Plasticon International, Inc.” against a number of defendants alleging breach of contract, civil conspiracy, conversion, interference with contractual relations, and misrepresentation and fraud concerning certain molds and associated tools and parts used in the processing and manufacturing of injected molded plastic parts for rebar supports.International Plastics Corp. v. Michael, et al, 5:06-cv-00223-KSF.
This suit was dismissed but later refiled in the U.S. District Court for the Eastern District of Michigan, with Turek added as a party plaintiff and the addition of another defendant. Turek, et al v. Mold-Rite Tool, et al, 2:07-cv-10162-CGS-DAS. Once again, if Plasticon is the owner of the patents, it is the real plaintiff party in interest.
33. No public filing by Plasticon indicates how International Plastics Corporation became a “division” of Plasticon, although a January 10, 1997 press release indicates that Wicklund Holding Company acquired IPC in a reverse acquisition. Exhibit 15, attached hereto and incorporated herein.
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MOTION OF THE UNITED STATES TRUSTEE FOR APPOINTMENT OF A CHAPTER 11 TRUSTEE
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