Dickinson Wright PLLC

David J. Hrina

September 24, 2010

Page 1

September 24, 2010

David J. Hrina
Buckingham, Doolittle & Burroughs, LLP
3800 Embassy Parkway, Suite 300
Akron, OH 44333

Re:Unique Product Solutions, Ltd. v. HoldUp Suspender Company, Inc.

Dear Mr. Hrina:

As I stated in our recent telephone conversation, we represent HoldUp Suspender Company. For the reasons pointed out below, our client has not violated §292 and we request that the Complaint be withdrawn.

As you know, §292 requires that any improper marking be done "for the purpose of deceiving the public." Here there was no such intent. There was no intent to deceive anybody.

HoldUp is a small "mom and pop" company with only three employees. It was founded by Mr. Sal Herman, who is a landed immigrant with a high school education.

HoldUp is a very small player in the suspenders market. It is not a "large sophisticated company" as stated in the Complaint and does not regularly retain legal counsel.

Mr. Herman did not know that he had to remove that patent number from his product once the patent expired. If he had known, he would have done so. His good faith intent in this regard is shown by the fact that when he did find out, he immediately took steps to remove the patent number from his products. He made arrangements to change the molds for his suspender clips and is currently grinding off the patent number from all of the suspenders in his inventory. Moreover, he has changed the HoldUp website and is in the process of changing his marketing materials.

HoldUp also just recently received a second patent – a design patent – on a new suspender clip. The statement in its website that it has a "new" patented clip is thus accurate.

In the Complaint, it is alleged that HoldUp "knew or should have known" that marking or advertising with an expired patent violates §292. There is no support for that allegation, and it is untrue. Mr. Herman did not know anything to that effect and, due to his lack of sophistication and his lack of interaction with counsel, would not have known.

The Complaint is defective relative to pleading a violation of §292. Recent cases have shown that there is a heightened level of pleading and proof relative to the intent aspect of §292. In fact, as stated in a recent decision in Josephs v. Federal Mogul Corp., CV 10-10617 (E. D. Mich), the pleading requirement of Rule 9(b) of the Federal Rules of Civil Procedure applies to §292 allegations. In that case, merely alleging a party is "patent sophisticated" and "knew or should have known," is insufficient.

If the case were to continue, we also anticipate that we would bring a Motion to Transfer the case to Michigan, which is HoldUp's home jurisdiction. We are aware that your client has already experienced transfer of another false marking case from Ohio to the accused party's location. Unique Product Solutions, Ltd. v. Otis Products, Inc., CA 10-1471 (N.D. Ohio).

Based on the facts of the present situation, and the fact that the Courts are looking at false marking cases with a careful eye, HoldUp requests that you seriously consider the above comments and withdraw and dismiss the Complaint. There is no reason for either party to continue to spend any attorney time or fees on this matter.

Very truly yours,

John A. Artz

JAA/kh

cc:Sal Herman

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