Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 1 of 18
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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`__________________________________________
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`KONINKLIJKE PHILIPS ELECTRONICS
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`N.V. and PHILIPS ELECTRONICS NORTH
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`AMERICA CORPORATION,
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`Plaintiffs,
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`v.
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`ZOLL LIFECOR CORPORATION,
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`Defendant.
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`__________________________________________)
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`Civil Action No.
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`DEMAND FOR JURY TRIAL
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`
`
`COMPLAINT
`
`
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`Plaintiffs Koninklijke Philips Electronics N.V. and Philips Electronics North
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`America Corporation (collectively “Philips”) bring this complaint for patent infringement against
`
`Defendant Zoll Lifecor Corporation (“Zoll”).
`
`NATURE OF ACTION
`
`1.
`
`This is an action for patent infringement under 35 U.S.C. § 271, et seq., by Philips
`
`against Zoll for infringement of United States Patent Nos. 5,593,427; 5,607,454; 5,735,879;
`
`5,749,904; 5,749,905; 5,803,927; 5,836,978; and 6,047,212 (the “Patents-in-Suit”).
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`PARTIES
`
`2.
`
`Plaintiff Koninklijke Philips Electronics N.V. is a corporation organized under the
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`laws of the Netherlands with a principal place of business in Eindhoven, the Netherlands.
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`3.
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`Plaintiff Philips Electronics North America Corporation is a corporation
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`organized and existing under the laws of Delaware, with a place of business at 3000 Minuteman
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`1
`
` LIFECOR-1016
` ZOLL Lifecor Corporation v. Koninklijke Philips Electronics N.V.
` IPR2013-00606, IPR2013-00607, IPR2013-00609, IPR2013-00612,
`IPR2013-00613, IPR2013-00615, IPR2013-00616, IPR2013-00618
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
`
`__________________________________________
`)
`
`
`
`
`
`
`
`)
`KONINKLIJKE PHILIPS ELECTRONICS
`)
`N.V. and PHILIPS ELECTRONICS NORTH
`)
`AMERICA CORPORATION,
`
`
`)
`
`
`
`
`
`
`
`)
`
`
`
`
`Plaintiffs,
`
`)
`
`
`
`
`
`
`
`)
`
`
`v.
`
`
`
`
`)
`
`
`
`
`
`
`
`)
`ZOLL LIFECOR CORPORATION,
`
`)
`
`
`
`
`
`
`
`)
`
`
`
`
`Defendant.
`
`__________________________________________)
`
`Civil Action No.
`
`DEMAND FOR JURY TRIAL
`
`
`
`COMPLAINT
`
`
`
`Plaintiffs Koninklijke Philips Electronics N.V. and Philips Electronics North
`
`America Corporation (collectively “Philips”) bring this complaint for patent infringement against
`
`Defendant Zoll Lifecor Corporation (“Zoll”).
`
`NATURE OF ACTION
`
`1.
`
`This is an action for patent infringement under 35 U.S.C. § 271, et seq., by Philips
`
`against Zoll for infringement of United States Patent Nos. 5,593,427; 5,607,454; 5,735,879;
`
`5,749,904; 5,749,905; 5,803,927; 5,836,978; and 6,047,212 (the “Patents-in-Suit”).
`
`PARTIES
`
`2.
`
`Plaintiff Koninklijke Philips Electronics N.V. is a corporation organized under the
`
`laws of the Netherlands with a principal place of business in Eindhoven, the Netherlands.
`
`3.
`
`Plaintiff Philips Electronics North America Corporation is a corporation
`
`organized and existing under the laws of Delaware, with a place of business at 3000 Minuteman
`
`1
`
` LIFECOR-1016
` ZOLL Lifecor Corporation v. Koninklijke Philips Electronics N.V.
` IPR2013-00606, IPR2013-00607, IPR2013-00609, IPR2013-00612,
`IPR2013-00613, IPR2013-00615, IPR2013-00616, IPR2013-00618
`
`
`
`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 2 of 18
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`Road, Andover, Massachusetts 01810. Philips Electronics North America Corporation is a
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`wholly-owned subsidiary of Philips Holding USA, Inc., which, directly and indirectly, is a
`
`wholly-owned subsidiary of Plaintiff Koninklijke Philips Electronics N.V. Plaintiff Philips
`
`Electronics North America Corporation is the assignee and owner of United States Patent Nos.
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`5,593,427; 5,607,454; 5,735,879; 5,749,904; 5,749,905; 5,803,927; 5,836,978; and 6,047,212.
`
`4.
`
`Upon information and belief, Defendant Zoll Lifecor Corp. is a corporation
`
`organized under the laws of Delaware, with a principal place of business at 121 Gamma Drive,
`
`Pittsburgh, Pennsylvania 15238.
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`JURISDICTION AND VENUE
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`5.
`
`This is an action for patent infringement arising under the patent laws of the
`
`United States, 35 U.S.C. § 271, et seq.
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`6.
`
`This Court has subject matter jurisdiction over this action under 28 U.S.C.
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`§§ 1331 and 1338.
`
`7.
`
`Upon information and belief, Zoll maintains its principal place of business within
`
`Pennsylvania and has voluntarily placed wearable defibrillators, including the LifeVest product,
`
`into the stream of commerce, knowing that Pennsylvania is the likely destination of a substantial
`
`quantity of such products.
`
`8.
`
`Upon information and belief, a substantial part of the events giving rise to these
`
`claims for patent infringement occurred in Pennsylvania and in this judicial district.
`
`9.
`
`Upon information and belief, Zoll is subject to personal jurisdiction in this district
`
`because it maintains or has maintained continuous and systematic contacts with Pennsylvania
`
`and this judicial district.
`
`2
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`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 3 of 18
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`10.
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`Upon information and belief, Zoll is subject to personal jurisdiction in this district
`
`because it purposefully engaged in activities that gave rise to Philips’ claims for patent
`
`infringement and which were directed to residents of Pennsylvania and this judicial district.
`
`11.
`
`Upon information and belief, Zoll resides in this district for purposes of 28 U.S.C.
`
`§§ 1391(c) and 1400(b) because it is subject to personal jurisdiction in this district.
`
`12.
`
`Upon information and belief, venue for this civil action in this judicial district is
`
`proper under 28 U.S.C. §§ 1391(b), 1391(c), and/or 1400(b), as Zoll is subject to personal
`
`jurisdiction in this district.
`
`COUNT 1: PATENT INFRINGEMENT OF U.S. PATENT NO. 5,593,427
`
`13.
`
`Philips incorporates by reference paragraphs 1-12 as if fully set forth herein.
`
`14.
`
`On January 14, 1997, the United States Patent and Trademark Office (“USPTO”)
`
`duly and legally issued United States Patent No. 5,593,427 (“the ’427 patent”), entitled
`
`“Electrotherapy Method,” to the listed inventor Bradford E. Gliner of Bellevue, Washington, and
`
`other co-inventors in Washington. By assignment from the previous patent owner, Plaintiff
`
`Koninklijke Philips Electronics N.V. was the assignee and owner of the ’427 patent, a copy of
`
`which is attached as Exhibit A, until August 18, 2010, when it assigned the ’427 patent to
`
`Plaintiff Philips Electronics North America Corporation.
`
`15.
`
`Upon information and belief, Zoll has infringed and continues to infringe the ’427
`
`patent under 35 U.S.C. § 271(a), (b), and/or (c), by making, using, offering for sale, selling,
`
`and/or importing in the United States wearable defibrillators, including the LifeVest product, and
`
`by contributing to and/or inducing infringement of the ’427 patent.
`
`3
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`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 4 of 18
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`16.
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`Upon information and belief, Zoll has knowingly encouraged and induced third
`
`parties through advertisements, instruction manuals and other means to operate the LifeVest
`
`product in a manner that infringes the ’427 patent—and third parties have so used the LiveVest.
`
`17.
`
`Upon information and belief, Zoll has knowingly contributed to the infringement
`
`of the ’427 patent by providing the LifeVest product to third parties who have used it in an
`
`infringing manner.
`
`18.
`
`Zoll does not have a license or permission to use the ’427 patent.
`
`19.
`
`As a result of Zoll’s infringement of the ’427 patent, Philips has been irreparably
`
`injured. Unless such infringing acts are enjoined by this Court, Philips will continue to suffer
`
`additional irreparable injury.
`
`20.
`
`As a result of Zoll’s infringement of the ’427 patent, Philips has suffered, and
`
`continues to suffer, damages, in an amount not yet determined, of at least a reasonable royalty
`
`and/or lost profits due to loss of sales, profits, and potential sales that Philips would have made
`
`but for Zoll’s infringing acts.
`
`21.
`
`In a letter dated November 17, 2008, Philips provided notice to Zoll of the ’427
`
`patent and its infringing conduct. The letter was sent to Stephen Korn, who upon information
`
`and belief was serving as the Secretary of Zoll Lifecor Corp. at the time.
`
`22.
`
`Despite knowledge of the ’427 patent, Zoll has continued to infringe this patent.
`
`Zoll acted with reckless disregard of the ’427 patent by continuing to infringe the patent when it
`
`knew or should have known that its actions constituted infringement.
`
`4
`
`
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`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 5 of 18
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`COUNT 2: PATENT INFRINGEMENT OF U.S. PATENT NO. 5,607,454
`
`23.
`
`Philips incorporates by reference paragraphs 1-22 as if fully set forth herein.
`
`24.
`
`On March 4, 1997, the United States Patent and Trademark Office (“USPTO”)
`
`duly and legally issued United States Patent No. 5,607,454 (“the ’454 patent”), entitled
`
`“Electrotherapy Method and Apparatus,” to the listed inventor David Cameron of Seattle,
`
`Washington, and other co-inventors in Washington. By assignment from the previous patent
`
`owner, Plaintiff Koninklijke Philips Electronics N.V. was the assignee and owner of the ’454
`
`patent, a copy of which is attached as Exhibit B, until August 18, 2010, when it assigned the ’454
`
`patent to Plaintiff Philips Electronics North America Corporation.
`
`25.
`
`Upon information and belief, Philips and its predecessors, including Heartstream,
`
`Inc., Hewlett-Packard Company, and Agilent Technologies, Inc., have continuously marked their
`
`products with the ’454 patent number.
`
`26.
`
`Upon information and belief, Zoll has infringed and continues to infringe the ’454
`
`patent under 35 U.S.C. § 271(a), (b), and/or (c), by making, using, offering for sale, selling,
`
`and/or importing in the United States wearable defibrillators, including the LifeVest product, and
`
`by contributing to and/or inducing infringement of the ’454 patent.
`
`27.
`
`Upon information and belief, Zoll has knowingly encouraged and induced third
`
`parties through advertisements, instruction manuals and other means to operate the LifeVest
`
`product in a manner that infringes the ’454 patent—and third parties have so used the LiveVest.
`
`28.
`
`Upon information and belief, Zoll has knowingly contributed to the infringement
`
`of the ’454 patent by providing the LifeVest product to third parties who have used it in an
`
`infringing manner.
`
`29.
`
`Zoll does not have a license or permission to use the ’454 patent.
`
`5
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`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 6 of 18
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`30.
`
`As a result of Zoll’s infringement of the ’454 patent, Philips has been irreparably
`
`injured. Unless such infringing acts are enjoined by this Court, Philips will continue to suffer
`
`additional irreparable injury.
`
`31.
`
`As a result of Zoll’s infringement of the ’454 patent, Philips has suffered, and
`
`continues to suffer, damages, in an amount not yet determined, of at least a reasonable royalty
`
`and/or lost profits due to loss of sales, profits, and potential sales that Philips would have made
`
`but for Zoll’s infringing acts.
`
`32.
`
`In a letter dated November 17, 2008, Philips provided notice to Zoll of the ’454
`
`patent and its infringing conduct. The letter was sent to Stephen Korn, who upon information
`
`and belief was serving as the Secretary of Zoll Lifecor Corp. at the time.
`
`33.
`
`Despite knowledge of the ’454 patent, Zoll has continued to infringe this patent.
`
`Zoll acted with reckless disregard of the ’454 patent by continuing to infringe the patent when it
`
`knew or should have known that its actions constituted infringement.
`
`COUNT 3: PATENT INFRINGEMENT OF U.S. PATENT NO. 5,735,879
`
`34.
`
`Philips incorporates by reference paragraphs 1-33 as if fully set forth herein.
`
`35.
`
`On April 7, 1998, the USPTO duly and legally issued United States Patent No.
`
`5,735,879 (“the ’879 patent”), entitled “Electrotherapy Method for External Defibrillators,” to
`
`the listed inventor Bradford E. Gliner of Bellevue, Washington, and other co-inventors in
`
`Washington. By assignment from the previous patent owner, Plaintiff Koninklijke Philips
`
`Electronics N.V. was the assignee and owner of the ’879 patent, a copy of which is attached as
`
`Exhibit C, until August 18, 2010, when it assigned the ’879 patent to Plaintiff Philips Electronics
`
`North America Corporation.
`
`6
`
`
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`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 7 of 18
`
`36.
`
`Upon information and belief, Philips and its predecessors, including Heartstream,
`
`Inc., Hewlett-Packard Company, and Agilent Technologies, Inc., have continuously marked their
`
`products with the ’879 patent number.
`
`37.
`
`Upon information and belief, Zoll has infringed and continues to infringe the ’879
`
`patent under 35 U.S.C. § 271(a), (b), and/or (c), by making, using, offering for sale, selling,
`
`and/or importing in the United States wearable defibrillators, including the LifeVest product, and
`
`by contributing to and/or inducing infringement of the ’879 patent.
`
`38.
`
`Upon information and belief, Zoll has knowingly encouraged and induced third
`
`parties through advertisements, instruction manuals and other means to operate the LifeVest
`
`product in a manner that infringes the ’879 patent—and third parties have so used the LiveVest.
`
`39.
`
`Upon information and belief, Zoll has knowingly contributed to the infringement
`
`of the ’879 patent by providing the LifeVest product to third parties who have used it in an
`
`infringing manner.
`
`40.
`
`Zoll does not have a license or permission to use the ’879 patent.
`
`41.
`
`As a result of Zoll’s infringement of the ’879 patent, Philips has been irreparably
`
`injured. Unless such infringing acts are enjoined by this Court, Philips will continue to suffer
`
`additional irreparable injury.
`
`42.
`
`As a result of Zoll’s infringement of the ’879 patent, Philips has suffered, and
`
`continues to suffer, damages, in an amount not yet determined, of at least a reasonable royalty
`
`and/or lost profits due to loss of sales, profits, and potential sales that Philips would have made
`
`but for Zoll’s infringing acts.
`
`7
`
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`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 8 of 18
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`43.
`
`In a letter dated November 17, 2008, Philips provided notice to Zoll of the ’879
`
`patent and its infringing conduct. The letter was sent to Stephen Korn, who upon information
`
`and belief was serving as the Secretary of Zoll Lifecor Corp. at the time.
`
`44.
`
`Despite knowledge of the ’879 patent, Zoll has continued to infringe this patent.
`
`Zoll acted with reckless disregard of the ’879 patent by continuing to infringe the patent when it
`
`knew or should have known that its actions constituted infringement.
`
`COUNT 4: PATENT INFRINGEMENT OF U.S. PATENT NO. 5,749,904
`
`45.
`
`Philips incorporates by reference paragraphs 1-44 as if fully set forth herein.
`
`46.
`
`On May 12, 1998, the United States Patent and Trademark Office (“USPTO”)
`
`duly and legally issued United States Patent No. 5,749,904 (“the ’904 patent”), entitled
`
`“Electrotherapy Method Utilizing Patient Dependent Electrical Parameters,” to the listed
`
`inventor Bradford E. Gliner of Bellevue, Washington, and other co-inventors in Washington. By
`
`assignment from the previous patent owner, Plaintiff Koninklijke Philips Electronics N.V. was
`
`the assignee and owner of the ’904 patent, a copy of which is attached as Exhibit D, until August
`
`18, 2010, when it assigned the ’904 patent to Plaintiff Philips Electronics North America
`
`Corporation.
`
`47.
`
`Upon information and belief, Zoll has infringed and continues to infringe the ’904
`
`patent under 35 U.S.C. § 271(a), (b), and/or (c), by making, using, offering for sale, selling,
`
`and/or importing in the United States wearable defibrillators, including the LifeVest product, and
`
`by contributing to and/or inducing infringement of the ’904 patent.
`
`48.
`
`Upon information and belief, Zoll has knowingly encouraged and induced third
`
`parties through advertisements, instruction manuals and other means to operate the LifeVest
`
`product in a manner that infringes the ’904 patent—and third parties have so used the LiveVest.
`
`8
`
`
`
`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 9 of 18
`
`49.
`
`Upon information and belief, Zoll has knowingly contributed to the infringement
`
`of the ’904 patent by providing the LifeVest product to third parties who have used it in an
`
`infringing manner.
`
`50.
`
`Zoll does not have a license or permission to use the ’904 patent.
`
`51.
`
`As a result of Zoll’s infringement of the ’904 patent, Philips has been irreparably
`
`injured. Unless such infringing acts are enjoined by this Court, Philips will continue to suffer
`
`additional irreparable injury.
`
`52.
`
`As a result of Zoll’s infringement of the ’904 patent, Philips has suffered, and
`
`continues to suffer, damages, in an amount not yet determined, of at least a reasonable royalty
`
`and/or lost profits due to loss of sales, profits, and potential sales that Philips would have made
`
`but for Zoll’s infringing acts.
`
`53.
`
`In a letter dated November 17, 2008, Philips provided notice to Zoll of the ’904
`
`patent and its infringing conduct. The letter was sent to Stephen Korn, who upon information
`
`and belief was serving as the Secretary of Zoll Lifecor Corp. at the time.
`
`54.
`
`Despite knowledge of the ’904 patent, Zoll has continued to infringe this patent.
`
`Zoll acted with reckless disregard of the ’904 patent by continuing to infringe the patent when it
`
`knew or should have known that its actions constituted infringement.
`
`COUNT 5: PATENT INFRINGEMENT OF U.S. PATENT NO. 5,749,905
`
`55.
`
`Philips incorporates by reference paragraphs 1-54 as if fully set forth herein.
`
`56.
`
`On May 12, 1998, the USPTO duly and legally issued United States Patent No.
`
`5,749,905 (“the ’905 patent”), entitled “Electrotherapy Method Utilizing Patient Dependent
`
`Electrical Parameters,” to the listed inventor Bradford E. Gliner of Bellevue, Washington, and
`
`other co-inventors in Washington. By assignment from the previous patent owner, Plaintiff
`
`9
`
`
`
`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 10 of 18
`
`Koninklijke Philips Electronics N.V. was the assignee and owner of the ’905 patent, a copy of
`
`which is attached as Exhibit E, until August 18, 2010, when it assigned the ’905 patent to
`
`Plaintiff Philips Electronics North America Corporation.
`
`57.
`
`Upon information and belief, Philips and its predecessors, including Heartstream,
`
`Inc., Hewlett-Packard Company, and Agilent Technologies, Inc., have continuously marked their
`
`products with the ’905 patent number.
`
`58.
`
`Upon information and belief, Zoll has infringed and continues to infringe the ’905
`
`patent under 35 U.S.C. § 271(a), (b), and/or (c), by making, using, offering for sale, selling,
`
`and/or importing in the United States wearable defibrillators, including the LifeVest product, and
`
`by contributing to and/or inducing infringement of the ’905 patent.
`
`59.
`
`Upon information and belief, Zoll has knowingly encouraged and induced third
`
`parties through advertisements, instruction manuals and other means to operate the LifeVest
`
`product in a manner that infringes the ’905 patent—and third parties have so used the LiveVest.
`
`60.
`
`Upon information and belief, Zoll has knowingly contributed to the infringement
`
`of the ’905 patent by providing the LifeVest product to third parties who have used it in an
`
`infringing manner.
`
`61.
`
`Zoll does not have a license or permission to use the ’905 patent.
`
`62.
`
`As a result of Zoll’s infringement of the ’905 patent, Philips has been irreparably
`
`injured. Unless such infringing acts are enjoined by this Court, Philips will continue to suffer
`
`additional irreparable injury.
`
`63.
`
`As a result of Zoll’s infringement of the ’905 patent, Philips has suffered, and
`
`continues to suffer, damages, in an amount not yet determined, of at least a reasonable royalty
`
`10
`
`
`
`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 11 of 18
`
`and/or lost profits due to loss of sales, profits, and potential sales that Philips would have made
`
`but for Zoll’s infringing acts.
`
`64.
`
`In a letter dated November 17, 2008, Philips provided notice to Zoll of the ’905
`
`patent and its infringing conduct. The letter was sent to Stephen Korn, who upon information
`
`and belief was serving as the Secretary of Zoll Lifecor Corp. at the time.
`
`65.
`
`Despite knowledge of the ’905 patent, Zoll has continued to infringe this patent.
`
`Zoll acted with reckless disregard of the ’905 patent by continuing to infringe the patent when it
`
`knew or should have known that its actions constituted infringement.
`
`COUNT 6: PATENT INFRINGEMENT OF U.S. PATENT NO. 5,803,927
`
`66.
`
`Philips incorporates by reference paragraphs 1-65 as if fully set forth herein.
`
`67.
`
`On September 8, 1998, the USPTO duly and legally issued United States Patent
`
`No. 5,803,927 (“the ’927 patent”), entitled “Electrotherapy Method and Apparatus for External
`
`Defibrillation,” to the listed inventor David Cameron of Seattle, Washington, and other co-
`
`inventors in Washington. By assignment from the previous patent owner, Plaintiff Koninklijke
`
`Philips Electronics N.V. was the assignee and owner of the ’927 patent, a copy of which is
`
`attached as Exhibit F, until August 18, 2010, when it assigned the ’927 patent to Plaintiff Philips
`
`Electronics North America Corporation.
`
`68.
`
`Upon information and belief, Philips and its predecessors, including Heartstream,
`
`Inc., Hewlett-Packard Company, and Agilent Technologies, Inc., have continuously marked their
`
`products with the ’927 patent number.
`
`69.
`
`Upon information and belief, Zoll has infringed and continues to infringe the ’927
`
`patent under 35 U.S.C. § 271(a), (b), and/or (c), by making, using, offering for sale, selling,
`
`11
`
`
`
`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 12 of 18
`
`and/or importing in the United States wearable defibrillators, including the LifeVest product, and
`
`by contributing to and/or inducing infringement of the ’927 patent.
`
`70.
`
`Upon information and belief, Zoll has knowingly encouraged and induced third
`
`parties through advertisements, instruction manuals and other means to operate the LifeVest
`
`product in a manner that infringes the ’927 patent—and third parties have so used the LiveVest.
`
`71.
`
`Upon information and belief, Zoll has knowingly contributed to the infringement
`
`of the ’927 patent by providing the LifeVest product to third parties who have used it in an
`
`infringing manner.
`
`72.
`
`Zoll does not have a license or permission to use the ’927 patent.
`
`73.
`
`As a result of Zoll’s infringement of the ’927 patent, Philips has been irreparably
`
`injured. Unless such infringing acts are enjoined by this Court, Philips will continue to suffer
`
`additional irreparable injury.
`
`74.
`
`As a result of Zoll’s infringement of the ’927 patent, Philips has suffered, and
`
`continues to suffer, damages, in an amount not yet determined, of at least a reasonable royalty
`
`and/or lost profits due to loss of sales, profits, and potential sales that Philips would have made
`
`but for Zoll’s infringing acts.
`
`75.
`
`In a letter dated November 17, 2008, Philips provided notice to Zoll of the ’927
`
`patent and its infringing conduct. The letter was sent to Stephen Korn, who upon information
`
`and belief was serving as the Secretary of Zoll Lifecor Corp. at the time.
`
`76.
`
`Despite knowledge of the ’927 patent, Zoll has continued to infringe this patent.
`
`Zoll acted with reckless disregard of the ’927 patent by continuing to infringe the patent when it
`
`knew or should have known that its actions constituted infringement.
`
`12
`
`
`
`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 13 of 18
`
`COUNT 7: PATENT INFRINGEMENT OF U.S. PATENT NO. 5,836,978
`
`77.
`
`Philips incorporates by reference paragraphs 1-76 as if fully set forth herein.
`
`78.
`
`On November 17, 1998, the USPTO duly and legally issued United States Patent
`
`No. 5,836,978 (“the ’978 patent”), entitled “Electrotherapy Method for Producing a Multiphasic
`
`Discharge Based upon a Patient-Dependant Electrical Parameter and Time,” to the listed
`
`inventor Bradford E. Gliner of Bellevue, Washington, and other co-inventors in Washington. By
`
`assignment from the previous patent owner, Plaintiff Koninklijke Philips Electronics N.V. was
`
`the assignee and owner of the ’978 patent, a copy of which is attached as Exhibit G, until August
`
`18, 2010, when it assigned the ’978 patent to Plaintiff Philips Electronics North America
`
`Corporation.
`
`79.
`
`Upon information and belief, Zoll has infringed and continues to infringe the ’978
`
`patent under 35 U.S.C. § 271(a), (b), and/or (c), by making, using, offering for sale, selling,
`
`and/or importing in the United States wearable defibrillators, including the LifeVest product, and
`
`by contributing to and/or inducing infringement of the ’978 patent.
`
`80.
`
`Upon information and belief, Zoll has knowingly encouraged and induced third
`
`parties through advertisements, instruction manuals and other means to operate the LifeVest
`
`product in a manner that infringes the ’978 patent—and third parties have so used the LiveVest.
`
`81.
`
`Upon information and belief, Zoll has knowingly contributed to the infringement
`
`of the ’978 patent by providing the LifeVest product to third parties who have used it in an
`
`infringing manner.
`
`82.
`
`Zoll does not have a license or permission to use the ’978 patent.
`
`83.
`
`As a result of Zoll’s infringement of the ’978 patent, Philips has been irreparably
`
`injured. Unless such infringing acts are enjoined by this Court, Philips will continue to suffer
`
`additional irreparable injury.
`
`13
`
`
`
`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 14 of 18
`
`84.
`
`As a result of Zoll’s infringement of the ’978 patent, Philips has suffered, and
`
`continues to suffer, damages, in an amount not yet determined, of at least a reasonable royalty
`
`and/or lost profits due to loss of sales, profits, and potential sales that Philips would have made
`
`but for Zoll’s infringing acts.
`
`85.
`
`In a letter dated November 17, 2008, Philips provided notice to Zoll of the ’978
`
`patent and its infringing conduct. The letter was sent to Stephen Korn, who upon information
`
`and belief was serving as the Secretary of Zoll Lifecor Corp. at the time.
`
`86.
`
`Despite knowledge of the ’978 patent, Zoll has continued to infringe this patent.
`
`Zoll acted with reckless disregard of the ’978 patent by continuing to infringe the patent when it
`
`knew or should have known that its actions constituted infringement.
`
`COUNT 8: PATENT INFRINGEMENT OF U.S. PATENT NO. 6,047,212
`
`87.
`
`Philips incorporates by reference paragraphs 1-86 as if fully set forth herein.
`
`88.
`
`On April 4, 2000, the USPTO duly and legally issued United States Patent No.
`
`6,047,212 (“the ’212 patent”), entitled “External Defibrillator Capable of Delivering Patient
`
`Impedance Compensated Biphasic Waveforms,” to the listed inventor Bradford E. Gliner of
`
`Bellevue, Washington, and other co-inventors in Washington. By assignment from the previous
`
`patent owner, Plaintiff Koninklijke Philips Electronics N.V. was the assignee and owner of the
`
`’212 patent, a copy of which is attached as Exhibit H, until August 18, 2010, when it assigned
`
`the ’212 patent to Plaintiff Philips Electronics North America Corporation.
`
`89.
`
`Upon information and belief, Philips has continuously marked its products with
`
`the ’212 patent number.
`
`90.
`
`Upon information and belief, Zoll has infringed and continues to infringe the ’212
`
`patent under 35 U.S.C. § 271(a), (b), and/or (c), by making, using, offering for sale, selling,
`
`14
`
`
`
`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 15 of 18
`
`and/or importing in the United States wearable defibrillators, including the LifeVest product, and
`
`by contributing to and/or inducing infringement of the ’212 patent.
`
`91.
`
`Upon information and belief, Zoll has knowingly encouraged and induced third
`
`parties through advertisements, instruction manuals and other means to operate the LifeVest
`
`product in a manner that infringes the ’212 patent—and third parties have so used the LiveVest.
`
`92.
`
`Upon information and belief, Zoll has knowingly contributed to the infringement
`
`of the ’212 patent by providing the LifeVest product to third parties who have used it in an
`
`infringing manner.
`
`93.
`
`Zoll does not have a license or permission to use the ’212 patent.
`
`94.
`
`As a result of Zoll’s infringement of the ’212 patent, Philips has been irreparably
`
`injured. Unless such infringing acts are enjoined by this Court, Philips will continue to suffer
`
`additional irreparable injury.
`
`95.
`
`As a result of Zoll’s infringement of the ’212 patent, Philips has suffered, and
`
`continues to suffer, damages, in an amount not yet determined, of at least a reasonable royalty
`
`and/or lost profits due to loss of sales, profits, and potential sales that Philips would have made
`
`but for Zoll’s infringing acts.
`
`96.
`
`In a letter dated November 17, 2008, Philips provided notice to Zoll of the ’212
`
`patent and its infringing conduct. The letter was sent to Stephen Korn, who upon information
`
`and belief was serving as the Secretary of Zoll Lifecor Corp. at the time.
`
`97.
`
`Despite knowledge of the ’212 patent, Zoll has continued to infringe this patent.
`
`Zoll acted with reckless disregard of the ’212 patent by continuing to infringe the patent when it
`
`knew or should have known that its actions constituted infringement.
`
`15
`
`
`
`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 16 of 18
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Philips respectfully requests the following relief:
`
`(a) a declaration that Zoll infringes the Patents-in-Suit under 35 U.S.C. § 271(a), (b),
`
`and/or (c) and a final judgment incorporating the same;
`
`(b) equitable relief under 35 U.S.C. § 283, including, but not limited to, an injunction that
`
`enjoins Zoll and any of its officers, agents, employees, assigns, representatives, privies,
`
`successors, and those acting in concert or participation with them from infringing, contributing
`
`to, and/or inducing infringement of Patents-in-Suit;
`
`(c) an award of damages sufficient to compensate Philips for infringement of Patents-in-
`
`Suit by Zoll, together with prejudgment and post-judgment interest under 35 U.S.C. § 284;
`
`(d) entry of an order compelling Zoll to compensate Philips for any ongoing and/or future
`
`infringement of the Patents-in-Suit, in an amount and under terms appropriate under the
`
`circumstances;
`
`(e) a declaration or order finding that Zoll’s infringement is willful and/or an order
`
`increasing damages under 35 U.S.C. § 284;
`
`(f) a judgment holding that this is an exceptional case under 35 U.S.C. § 285 and
`
`awarding Philips its reasonable attorney fees, costs, and expenses; and
`
`(g) such other relief deemed just and proper.
`
`JURY DEMAND
`
`Under Rule 38 of the Federal Rules of Civil Procedure, Philips hereby demands trial by
`
`jury of all issues so triable by a jury in this action.
`
`16
`
`
`
`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 17 of 18
`
`Dated: September 21, 2012
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Lionel M. Lavenue
`Lionel M. Lavenue (VA Bar No. 49005)
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, L.L.P.
`11955 Freedom Drive
`Reston, Virginia 20190-5675
`Telephone: (571) 203-2700
`Facsimile: (202) 408-4400
`
`Denise W. DeFranco
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, L.L.P.
`55 Cambridge Parkway
`Cambridge, Massachusetts 02142-1215
`Telephone: (617) 452-1600
`Facsimile: (617) 452-1666
`
`J. Michael Jakes
`Robert F. Shaffer
`David K. Mroz
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, L.L.P.
`901 New York Avenue, N.W.
`Washington, D.C. 20001
`Telephone: (202) 408-4000
`Facsimile: (202) 408-4400
`
`Attorneys for Plaintiffs
`KONINKLIJKE PHILIPS ELECTRONICS N.V.
`and PHILIPS ELECTRONICS NORTH AMERICA
`CORPORATION
`
`17
`
`
`
`Case 2:12-cv-01369-TFM Document 1 Filed 09/21/12 Page 18 of 18
`
`CERTIFICATE OF SERVICE
`
`
`
`A copy of the foregoing was electronically filed with the Court this September 21, 2012.
`
`Notice of this filing will be sent by operation of the Court’s electronic filing system.
`
`Parties may access this filing through the Court’s system.
`
`/s/ Lionel M. Lavenue
`Lionel M. Lavenue
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, L.L.P.
`11955 Freedom Drive
`Reston, Virginia 20190-5675
`Telephone: (571) 203-2700
`Facsimile: (202) 408-4400
`
`Attorney for Plaintiffs
`KONINKLIJKE PHILIPS ELECTRONICS N.V.
`and PHILIPS ELECTRONICS NORTH AMERICA
`CORPORATION
`
`18
`
`
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