Case 3:12-cv-03388-JAP-LHG Document 12 Filed 10/23/12 Page 1 of 7 PageID: 54
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`Martin J. Conroy, Esq.
`Gallagher, Briody & Butler
`155 Village Boulevard, Suite 201
`Princeton, New Jersey 08540
`Telephone : 609.452.6000
`Facsimile : 609.452.0090
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`Attorneys for Plaintiffs
`DERMA SCIENCES, INC.,
`COMVITA NEW ZEALAND LTD., and
`APIMED MEDICAL HONEY LTD.
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`UNITED STATES DISTRICT COURT FOR THE
`DISTRICT OF NEW JERSEY
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`v.
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`Defendants.
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`FIRST AMENDED COMPLAINT
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`Plaintiffs Derma Sciences, Inc. ( “Derma”), Comvita New Zealand Ltd. (“Comvita”) and
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`Apimed Medical Honey Ltd. (“Apimed”) (collectively, “Plaintiffs”) file this First Amended
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`Complaint and Demand for Jury Trial seeking relief for patent infringement by Defendants
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`ManukaMed Ltd. (“ManukaMed”), Manuka Medical Limited (“MML”), Medline Industries, Inc.
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`(“Medline”) and Links Medical Products, Inc. (“Links”) (collectively, “Defendants”), stating and
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`alleging the following:
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`sd-601727
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`DERMA SCIENCES, INC., COMVITA NEW
`ZEALAND LTD., and APIMED MEDICAL
`HONEY LTD.
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`Plaintiffs,
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`MANUKAMED LTD., MANUKA MEDICAL
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`LTD., MEDLINE INDUSTRIES, INC., and
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`LINKS MEDICAL PRODUCTS, INC.
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`Filed Electronically
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`CIVIL ACTION NO. 3:12-cv-03388
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`FIRST AMENDED COMPLAINT FOR
`INFRINGEMENT OF U.S PATENT NO.
`RE42,755
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` DEMAND FOR JURY TRIAL
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`MANUKAMED
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`EX 1002-Page 1
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`Case 3:12-cv-03388-JAP-LHG Document 12 Filed 10/23/12 Page 2 of 7 PageID: 55
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`THE PARTIES
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`1.
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`Plaintiff Derma is a Pennsylvania corporation with its principal place of business
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`at 214 Carnegie Center, Suite 300, Princeton, New Jersey 08540. Derma is a specialty medical
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`device and pharmaceutical company with a primary focus on wound care. Derma manufactures
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`and sells a full range of skin care, wound management and specialty securement devices that are
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`used primarily in professional markets, specifically hospitals, nursing homes and home care
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`settings.
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`2.
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`Plaintiff Comvita is a New Zealand limited liability company with its principal
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`place of business at Wilson Road South, Paengaroa, Bay of Plenty, New Zealand. Comvita is an
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`international health and beauty company that develops and manufactures a healthcare, personal
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`care and health food products. Manuka honey, produced exclusively in New Zealand and
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`Australia, is at the core of Comvita’s product range.
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`3.
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`Plaintiff Apimed is a New Zealand limited liability company with its principal
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`place of business at Wilson Road South, Paengaroa, Bay of Plenty, New Zealand. Apimed is a
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`wholly-owned subsidiary of Comvita.
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`4.
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`On information and belief, Defendant ManukaMed is a New Zealand limited
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`liability company with its principal place of business at 17 Edwin Feist Place, Solway,
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`Masterton, New Zealand. On information and belief, ManukaMed is a developer and producer
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`of medical manuka honey products.
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`5.
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`On information and belief, Defendant MML is a United Kingdom limited liability
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`company with its principal place of business at 1 Tithe Barn, Barnsley Park, Barnsley,
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`Gloucestershire, England. On information and belief, MML is involved in the manufacturing,
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`sale and distribution of medical manuka honey products.
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`6.
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`On information and belief, Defendants ManukaMed and MML are subsidiaries of
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`Watson & Son Ltd., a New Zealand limited liability company. On information and belief,
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`Watson & Son Ltd. is a producer of manuka honey.
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`7.
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`On information and belief, Defendant Medline is an Illinois corporation with its
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`principal place of business at One Medline Place, Mundelein, Illinois 60060. On information
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`and belief, Medline is a distributor of ManukaMed and/or MML developed and manufactured
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`products in the United States.
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`MANUKAMED
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`EX 1002-Page 2
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`Case 3:12-cv-03388-JAP-LHG Document 12 Filed 10/23/12 Page 3 of 7 PageID: 56
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`8.
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`On information and belief, Defendant Links is a California corporation with its
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`principal place of business at 9247 Research Drive, Irvine, California 92618. On information
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`and belief, Links is or has been a distributor of ManukaMed and/or MML developed and
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`manufactured products in the United States.
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`JURISDICTION AND VENUE
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`9.
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`The court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
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`1338(a) because this action arises under the patent laws of the United States, 35 U.S.C. §§ 1 et
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`seq. Venue is proper in this federal district pursuant to 28 U.S.C. §§ 1391 and 1400(b) at least in
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`that Defendants have done business in this District, have committed acts of infringement in this
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`District, and continue to commit acts of infringement in this District, entitling Plaintiffs to relief.
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`CLAIM FOR RELIEF
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`(Infringement of U.S. Patent No. RE42,755)
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`10.
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`Plaintiff repeats and incorporates by reference the allegations set forth in
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`paragraphs 1 through 9.
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`11.
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`United States Patent Number RE42,755 (“the ’755 Patent”) titled “Honey Based
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`Wound Dressing” was duly and legally issued to Apimed on September 27, 2011. A true and
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`correct copy of the ’755 Patent is attached hereto as Exhibit A.
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`12.
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`13.
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`The ’755 Patent is valid and enforceable.
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`Apimed is the owner of the ’755 Patent. Comvita and Derma are exclusive
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`licensees of the ’755 Patent.
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`14.
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`On information and belief, Defendant ManukaMed has infringed and continues to
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`infringe one or more claims of the ’755 Patent under 35 U.S.C. § 271(a), either literally and/or
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`under the doctrine of equivalents, by making, using, offering to sell and/or selling
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`MANUKAhd™ Manuka-honey Impregnated Absorbent Dressing, MANUKAhd border®
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`Adherent Absorbent Dressing, MANUKAtex® Honey Impregnated Absorbent Dressing, and
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`other wound dressings containing manuka honey (collectively, the “Accused Products”), and/or
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`by importing the Accused Products into the United States.
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`15.
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`On information and belief, Defendant ManukaMed has actively induced and/or
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`contributed to the infringement of the ’755 patent and continues to do so by at least: designing
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`and manufacturing the Accused Products; aiding and abetting the importation, sale and offer for
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`sale of the Accused Products by providing promotional and instructional materials relating to the
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`MANUKAMED
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`EX 1002-Page 3
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`Accused Products to Medline and Links; and by promoting the importation, sale, and/or offer for
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`sale of the Accused Products by Medline and Links. ManukaMed is liable for its infringement of
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`the ’755 patent pursuant to 35 U.S.C. § 271(b).
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`16.
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`On information and belief, Defendant ManukaMed is aware of the ’755 patent
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`and its infringement has been willful.
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`17.
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`On information and belief, Defendant MML has infringed and continues to
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`infringe one or more claims of the ’755 Patent under 35 U.S.C. § 271(a), either literally and/or
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`under the doctrine of equivalents, by making, using, offering to sell and/or selling the Accused
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`Products, and/or by importing the Accused Products into the United States.
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`18.
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`On information and belief, Defendant MML has actively induced and/or
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`contributed to the infringement of the ’755 patent and continues to do so by at least: designing
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`and manufacturing the Accused Products; aiding and abetting the importation, sale and offer for
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`sale of the Accused Products by providing promotional and instructional materials relating to the
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`Accused Products to Medline and Links; and by promoting the importation, sale, and/or offer for
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`sale of the Accused Products by Medline and Links. MML is liable for its infringement of the
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`’755 patent pursuant to 35 U.S.C. § 271(b).
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`19.
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`On information and belief, Defendant MML is aware of the ’755 patent and its
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`infringement has been willful.
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`20.
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`On information and belief, Defendant Medline has infringed the ’755 patent by its
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`importation and its sale and offer for sale of the Accused Products through its website,
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`www.medline.com, and its sales offices. Medline is liable for infringement of the ’755 patent
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`pursuant to 35 U.S.C. § 271(a).
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`21.
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`On information and belief, Defendant Medline has actively induced and/or
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`contributed to infringement of the ’755 Patent by others by at least: aiding and abetting the
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`importation, sale and offer for sale of the Accused Products, and by providing promotional and
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`instructional materials promoting infringing use of the Accused Products to its customers.
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`Medline is liable for its infringement of the ’755 patent pursuant to 35 U.S.C. § 271(b).
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`22.
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`On information and belief, Defendant Medline is aware of the ’755 patent and its
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`infringement has been willful.
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`23.
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`On information and belief, Defendant Links has infringed the ’755 patent by its
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`importation and its sale and offer for sale of the Accused Products through its website,
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`MANUKAMED
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`EX 1002-Page 4
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`Case 3:12-cv-03388-JAP-LHG Document 12 Filed 10/23/12 Page 5 of 7 PageID: 58
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`www.linksmed.com, and its sales offices. Links is liable for infringement of the ’755 patent
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`pursuant to 35 U.S.C. § 271(a).
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`24.
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`On information and belief, Defendant Links has actively induced and/or
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`contributed to infringement of the ’755 Patent by others by at least: aiding and abetting the
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`importation, sale and offer for sale of the Accused Products, and by providing promotional and
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`instructional materials promoting infringing use of the Accused Products to its customers. Links
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`is liable for its infringement of the ’755 patent pursuant to 35 U.S.C. § 271(b).
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`25.
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`On information and belief, Defendant Links is aware of the ’755 patent and its
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`infringement has been willful.
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`26.
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`On July 11, 2012, Defendants Medline and Links informed Plaintiffs that “Links
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`and Medline have decided to go forward with a Manuka IG product that does not include the use
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`of CMC in the packaging of the product or otherwise.” Plaintiffs are without sufficient
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`information to confirm the validity of this statement.
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`27.
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`On information and belief, Defendants ManukaMed’s, MML’s, Medline’s and
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`Links’ acts of infringement have caused damage to Plaintiffs, and Plaintiffs are entitled to
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`recover from Defendants the damages sustained by Plaintiffs as a result of Defendants’ wrongful
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`acts in an amount subject to proof at trial. To the extent that Defendants continue their
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`infringement, Defendants’ infringement of Plaintiffs’ exclusive rights under the ’755 patent will
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`continue to damage Plaintiffs, causing irreparable harm for which there is no adequate remedy at
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`law, unless enjoined by this Court.
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`28.
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`The acts of infringement described above are willful, deliberate, and in reckless
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`disregard of Plaintiffs’ patent rights.
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`JURY DEMAND
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`29.
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`Plaintiffs hereby demand a jury trial on all issues so triable.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs Derma Sciences, Inc., Comvita New Zealand Limited, and
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`Apimed Medical Honey Limited pray for a judgment of injunctive and monetary relief against
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`Defendants as follows:
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`a)
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`For judgment that ManukaMed, MML, Medline and Links have infringed U.S.
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`Patent No. RE42,755 in violation of 35 U.S.C. § 271;
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`MANUKAMED
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`EX 1002-Page 5
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`b)
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`For preliminary and permanent injunctive relief pursuant to 35 U.S.C. § 283
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`against any further infringement, active inducement of infringement, and contributory
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`infringement of the ’755 Patent by Defendants, their officers, agents, servants, employees,
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`attorneys, and those persons in active concert or participation with them;
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`c)
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`For damages pursuant to 35 U.S.C. § 284 arising out of Defendants’ infringement
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`of the ’755 Patent, together with prejudgment and post-judgment interest;
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`d)
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`For a determination that Defendants’ infringement is or was willful and that this is
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`an exceptional case under 35 U.S.C. § 285;
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`e)
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`For an award of enhanced damages and the attorneys’ fees and costs incurred by
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`Plaintiff; and
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`f)
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`For such other and further relief as the Court may deem just and proper.
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`Dated: October 23, 2012
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`/s/ Martin J. Conroy
`By:
`GALLAGHER, BRIODY & BUTLER
`Martin J. Conroy
`155 Village Boulevard, Suite 201
`Princeton, New Jersey 08540
`Telephone: 609.452.6000
`Facsimile: 609.452.0090
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`Pro Hac Vice Applications To Be Filed
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`MORRISON & FOERSTER LLP
`David C. Doyle (CA Bar No. 70690)
`Anders T. Aannestad (CA Bar No. 211100)
`Pamela McElroy (CA Bar No. 265535)
`12531 High Bluff Drive, Suite 100
`San Diego, CA 92130
`Telephone: 858.720.5100
`Facsimile:
`858.720.5125
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`Attorneys for Plaintiffs
`DERMA SCIENCES, INC.,
`COMVITA NEW ZEALAND LTD., and
`APIMED MEDICAL HONEY LTD.
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`MANUKAMED
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`EX 1002-Page 6
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`Case 3:12-cv-03388-JAP-LHG Document 12 Filed 10/23/12 Page 7 of 7 PageID: 60
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`CERTIFICATION
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`I certify that the matter in controversy is not the subject of any other Complaint pending
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`in any Court or of a pending arbitration or administrative proceeding. No such other Complaint
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`or proceeding is contemplated.
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`Dated: October 23, 2012
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`GALLAGHER, BRIODY & BUTLER
`Attorneys for Plaintiffs
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`By: /s/ Martin J. Conroy
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`MANUKAMED
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`EX 1002-Page 7
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