Case 1:17-cv-00868-VAC-SRF Document 9-1 Filed 08/04/17 Page 1 of 3 PageID #: 163
`Case 1:17-cv—00868—VAC-SRF Document 9-1 Filed 08/04/17 Page 1 of 3 PageID #: 163
`
`
`
`EXHIBIT A
`EXHIBIT A
`
`

`

`Case 1:17-cv-00868-VAC-SRF Document 9-1 Filed 08/04/17 Page 2 of 3 PageID #: 164
`PAUL
`HASTINGS
`
`1(202) 551-1990
`naveenmodi@paulhastings.com
`
`July 7, 2017
`
`Matthew B. Lowrie
`Foley & Lardner LLP
`111 Huntington Avenue
`Suite 2600
`Boston, MA 02199
`
`Re:
`
`Univ. of Mass. Med. School and Carmel Labs., LLC v. L'Oreal S.A.
`and L'Oreal USA, Inc. , 1:17-cv-08868-UNA (D. Del.)
`
`Dear Matt:
`
`We have been engaged by L'Oreal USA, Inc. for the above-referenced matter. We have reviewed the
`Complaint filed in this matter, alleging infringement of U.S. Patent Nos. 6,423,327 (the "' 327 patent") and
`6,645,513 (the '"513 patent"). We have some serious concerns regarding the propriety of the Complaint.
`
`As you are aware, Rule 8 requires "a short and plain statement of [each] claim showing that the pleader is
`entitled to relief." Fed. R. Civ. P. 8(a)(2). This standard "demands more than an unadorned, the(cid:173)
`defendant-unlawfully-harmed-me accusation. " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Complaints
`must allege sufficient facts to "raise a right to relief above the speculative level .... " Bell At/. Corp. v.
`Twombly, 550 U.S. 544, 555 (2007). Plaintiffs have not met their pleading burden.
`
`For example, as set forth at 1f12, the Complaint admits that claim 1 of both of the '327 and '513 patents
`re3,uires that the "adenosine concentration applied to the dermal cells is 10-4 M to 10-7 M," and "10-3 M to
`1 o- M," respectively. As an initial matter, although the Complaint identified numerous brands "with
`products containing adenosine," only one product (L'Oreal Paris' Revitalift Triple Power Deep-Acting
`Moisturizer) is identified as an "Accused Adenosine Product." Complaint, 1Ji131, 34. However, nowhere in
`the Complaint do Plaintiffs even attempt to al lege that this sole Accused Adenosine Product meets the
`adenosine concentration claim requirement for either the '327 or '513 patents. Indeed, there is no
`assertion regarding the amount of adenosine in the sole Accused Adenosine Product, or any product of
`the identified brands. As such, the Complaint fails, on its face, to meet the proper pleading standard of
`Rule 8.
`
`You are aware that the pre-suit investigation mandated by Rule 11 requires a review of all relevant
`materials, including the prosecution history of the asserted patents. See, e.g., Vehicle Operation Techs.
`LLC v. Am. Honda Motor Co., 67 F. Supp. 3d 637 (D. Del. Sept. 12, 2014). In order to overcome a prior
`art rejection during prosecution of the '327 patent (to which the '513 patent also claims priority),
`Applicants distinguished over a composition containing an adenosine concentration of 0.033% (i.e., one
`third of 0.1 %). See, e.g., Amendment mailed February 11, 2002 ("Amendment"), and accompanying
`Declaration Under 37 C.F.R. § 1.132 ("Declaration") in U.S. Patent Application No. 09/672,348. As such,
`Plaintiffs cannot now try to cover any method using a composition containing an adenosine concentration
`greater than required by the claims of the '327 and '513 patents. In this regard , we presume that the only
`Accused Adenosine Product identified in the Complaint, L'Oreal Paris' Revitalift Triple Power Deep(cid:173)
`Acting Moisturizer, was appropriately analyzed in Plaintiffs' pre-suit investigation required by Rule 11 .
`Such testing would have shown that the amount of adenosine present in this lone Accused Adenosine
`Product falls outside the claimed range of both the '327 or the '513 patents. Thus, Plaintiff's identification
`
`Paul Hastings LLP I 875 15th Street, N .W. I Washington, DC 20005
`t: +1.202.551.1700 I www.paulhastings.com
`
`

`

`Case 1:17-cv-00868-VAC-SRF Document 9-1 Filed 08/04/17 Page 3 of 3 PageID #: 165
`PAUL
`HAST I NGS
`
`Matthew B. Lowrie
`July?, 2017
`Page 2
`
`of L'Oreal Paris' Revitalift Triple Power Deep-Acting Moisturizer as the single Accused Adenosine
`Product fails to satisfy Plaintiffs' burden under either Rules 8 or 11 .
`
`We understand that, over the past two years , Plaintiffs have been repeatedly asked for identification of
`allegedly infringing products and the basis for any possible claim of infringement (e.g., testing results
`demonstrating that use of any product falls within the scope of the claims). Because this information was
`not provided despite repeated requests, and is notably absent from the Complaint, we are left to conclude
`that there is no reasonable basis for the accusation of infringement in the Complaint.
`
`In view of the foregoing, we ask that Plaintiffs immediately provide an adequate basis for the Complaint or
`dismiss their Complaint. If Plaintiffs fail to do so by July 14, 2017, we reserve the right to seek appropriate
`relief from the Court, including but not limited to a request for dismissal with prejudice, attorney fees, and
`costs.
`
`Since~ J~ A.
`
`Nave en Modi
`Global Vice Chair of IP
`
`cc: Brian E. Farnan
`Michael J. Farnan
`William Christopher Carmody
`Tamar E. Lusztig
`Justin A. Nelson
`Matthew A. Ambros
`
`