Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 1 of 18 PageID #: 87
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 1 of 18 PageID #: 87
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`BONUTTI SKELETAL
`
`INNOVATIONS LLC,
`
`Plaintiff,
`
`vs.
`
`WRIGHT MEDICAL GROUP, INC.
`and WRIGHT MEDICAL
`
`TECHNOLOGY, INC.,
`
`Defendants.
`
`vvvvvvvvvvvvv
`
`Civil Action No. 12-1110 (GMS)
`
`JURY TRIAL DEMANDED
`
`FIRST AMENDED COMPLAINT
`
`Bonutti Skeletal Innovations LLC (“Bonutti Skeletal”) for its First Amended Complaint
`
`hereby asserts claims of patent infringement against Wright Medical Group, Inc. and Wright
`
`Medical Technology, Inc. (collectively, “Wright Medical” or “Defendants”), and alleges as
`
`follows:
`
`THE PARTIES
`
`1.
`
`Bonutti Skeletal
`
`is a Delaware limited liability company having a place of
`
`business at 6136 Frisco Square Blvd, Suite 385, Frisco, TX 75034.
`
`2.
`
`On information and belief, Wright Medical Group, Inc. is a Delaware corporation
`
`having a place of business at 5677 Airline Road, Arlington, TN 38002.
`
`3.
`
`On information and belief, Wright Medical Technology, Inc.
`
`is a Delaware
`
`‘ corporation having a place of business at 5677 Airline Road, Arlington, TN 38002.
`
`4.
`
`On information and belief, Wright Medical Technology, Inc. is a wholly owned ‘
`
`subsidiary of Wright Medical Group, Inc.
`
`

`

`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 2 of 18 PageID #: 88
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 2 of 18 PageID #: 88
`
`PATENTS-IN-SUIT
`
`5.
`
`US. Patent No. 6,702,821 (“the ”821 patent”), entitled “Instrumentation For
`
`Minimally Invasive Joint Replacement and Methods For Using Same,” was lawfully issued on
`
`March 9, 2004 to the inventor Peter M. Bonutti (“Dr. Bonutti’”). Bonutti Skeletal is the owner,
`through assignment, of the title, interest and rights to enforce and collect damages for all past,
`
`present and future infringements of the ”821 patent by the accused products and the use thereof.
`
`A copy of the ”821 patent is attached as Exhibit A.
`
`6.
`
`US. Patent No. 8,133,229 (“the ”229 patent”), entitled “Knee Arthroplasty
`
`Method,” was lawfully issued on March 13, 2012 to the inventor Dr. Bonutti. Bonutti Skeletal is
`
`the owner, through assignment, of the title, interest and rights to enforce and collect damages for
`
`all past, present and future infringements of the ”229 patent by the accused products and the use
`
`thereof. A copy of the ”229 patent is attached as Exhibit B.
`
`7.
`
`US. Patent No. 7,806,896 (“the ”896 patent”), entitled “Knee Arthroplasty
`
`Method,” was lawfully issued on- October S, 2010 to Dr. Bonutti. Bonutti Skeletal is the owner,
`
`through assignment, of the title, interest and rights to enforce and collect damages for all past,
`
`present and future infringements of the ”896 patent by the accused products and the use thereof.
`
`A copy of the ”896 patent is attached as Exhibit C.
`
`BACKGROUND
`
`8.
`
`Dr. Bonutti is an orthopedic surgeon with experience in performing over 20,000
`
`orthopedic surgical procedures.
`
`9.
`
`Because of Dr. Bonutti’s expertise, insights, experience and research efforts, Dr.
`
`Benutti is an inventor or co—inventor of over 150 United States patents, including the ”821 patent,
`
`the ”229 patent and the ’896 patent (hereinafter, the “patents~in—suit’”).
`
`2
`
`

`

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`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 3 of 18 PageID #: 89
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`10.
`
`The patents—in-suit involve specialized procedures, instruments, implants, kits and
`
`systems invented by Dr. Bonutti for performing minimally invasive knee surgery.
`
`11.
`
`‘ Wright Medical is a competitor in the Orthopedics industry and in particular in
`
`the joint replacement industry. On information and belief, Wright Medical designs, develops,
`
`manufactures, offers for sale, sells, uses, distributes and/or markets joint replacement. implants
`
`and instruments including knee implants and surgical
`
`instruments used in knee surgery,
`
`including minimally invasive knee surgery. These knee implants include, but are not limited to,
`
`the LINK Sled Prosthesis and ADVANCE Knee Systems
`
`12.
`
`On information and belief, Wright Medical creates, distributes and/or otherwise
`
`makes available to surgeons, medical professionals, healthcare providers and the public~at~large
`
`instructions for use, surgical technique guides, brochures and/or videos for implanting Wright
`
`Medical knee implant systems including, but not limited to, the LINK Sled Prosthesis system and
`
`ADVANCE Knee System.
`
`13.
`
`On information and belief, Wright Medical creates, distributes and/or otherwise
`
`makes available to surgeons, medical professionals, healthcare providers and the public-at-large .
`
`instructions for use, surgical technique guides, brochures and/or videos on using Wright Medical
`
`surgical instruments, including minimally invasive instruments, for implanting Wright Medical
`
`knee implant systems including, but not limited to, MITUS (Minimally Invasive Technique of
`
`Unicondylar Sled Prosthesis) Instruments, ODYSSEY instrumentation, and PROPHECY guides.
`
`14.
`
`On information and belief, Wright Medical further offers courses to surgeons and
`
`medical professionals with a focus on the use of the Wright Medical (or other) joint replacement
`
`products it promotes, including knee implant systems such as, for example, the LINK Sled
`
`

`

`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 4 of 18 PageID #: 90
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 4 of 18 PageID #: 90
`
`Prosthesis and ADVANCE Knee Systems and related surgical
`
`instruments utilized for the
`
`
`
`implantation of these knee implant systems.
`
`15.
`
`At least as early as December 10, 2003, Dr. Bonutti and/or representatives of Dr.
`
`Bonutti were in communication with Wright Medical relating to Dr. Bonutti’s intellectual
`
`property rights.
`
`16.
`
`Wright Medical regularly applies for patents on the joint replacement implants
`
`and instruments it makes and Sells, including patents covering the surgical techniques that use
`
`these instruments to implant Wright Medical joint replacement systems. Wright Medical owns
`
`over 100 patents and pending patent applications.
`
`17. Wright Medical has hired dedicated patent counsel
`
`to assist with its joint
`
`replacement and orthopedic business. Wright Medical marks its products and/or product~
`
`literature, including its joint replacement systems, such as, for example, its knee replacement
`
`systems, with its patents. Wright Medical has patents that reference and cite to Dr. Bonut‘ti’s
`
`patents. On information and belief, Wright Medical is knowledgeable about patents at least from
`
`its business operations.
`
`18.
`Wright Medical, on information and belief,
`like most competitors in the joint
`replacement market, regularly monitors the patent
`literature including issued patents and
`
`published patent applications, and, like most competitors, throughout the cycle of researching,
`
`developing, commercializing, and marketing products,
`
`techniques and/or
`
`instrumentation
`
`systems, searches the patent literature and published patent applications and obtains opinions and
`
`advice from patent counsel on the patents and published applications it finds as a result of its
`
`monitoring and searching efforts.
`
`

`

`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 5 of 18 PageID #: 91
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 5 of 18 PageID #: 91
`
`19.
`
`On information and belief, as a result of this contact and communication between
`
`Dr. Bonutti and Wright Medical, and the activities of Wright Medical in the field of joint
`
`replacement, revision and reconstruction and knee implants,
`
`including its patent activities
`
`
`
`whereby it monitors and searches the patent
`
`literature, Wright Medical was aware of the
`
`patenting activities of Dr. Bonutti and had knowledge of Dr. Bonutti’s patent portfolio, including
`
`the patents~in~suit.
`
`JURISDICTION AND VENUE
`
`20.
`
`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338
`
`because this action arises under the patent laws of the United States, including 35 U.S.C. § 271 et
`
`seq.
`
`21.
`
`This Court has. personal jurisdiction over Defendants because, among other
`
`things, Defendants are both Delaware corporations and are thus subject to personal jurisdiction in
`
`this District, and because, on information and belief, Defendants engage in substantial and
`
`ongoing business in this District.
`
`22.
`
`On information and belief, Defendants offer to sell, sell and distribute their knee
`
`implants and/or knee implant related instruments and products, which either infringe one or more
`
`claims of the patents-in-suit, or are for use in infringing procedures, to healthcare institutions
`
`and/or medical professionals within this District. On information and belief, Defendants’ knee
`
`implants and/or knee implant related instruments and products are used in infringing procedures
`
`by healthcare institutions and/0r medical professionals within this District. On information and I
`
`belief, Defendants, independently and/or collectively, have committed, contributed to and/or
`
`induced acts of patent infringement within this District.
`
`23.
`
`Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391 and 1400.
`
`5
`
`

`

`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 6 of 18 PageID #: 92
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 6 of 18 PageID #: 92
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`COUNT I — INFRINGEMENT OF THE ’821 PATENT
`
`24.
`
`Bonutti Skeletal realleges and incorporates by reference each of the preceding
`
`paragraphs.
`
`25.
`
`On information and belief, Defendants, directly or through the actions of their
`
`employees, divisions and/or subsidiaries, have infringed and continue to infringe the ”821 patent
`
`directly, indirectly (by inducing infringement by others or contributing to infringement), jointly,
`literally and/or by equivalents.
`I
`
`26.
`
`On information and belief, Defendants have infringed and continue to infringe the
`
`”821 patent, directly, indirectly, jointly, literally and/or by equivalents, by, among other things,
`
`making, using, offering for sale, selling, distributing and/or importing Wright Medical products
`
`Within the United States that'infringe or are for use in a manner that practices the method of at
`
`least claim 8 of the ’821 patent. The Wright Medical products that infringe or are used to
`
`infringe the method of at least claim 8 of the ”821 patent include, or are included in, Wright
`
`Medical knee implant systems, and associated instruments used with and for implanting these
`
`Wright Medical knee implant systems. These Wright Medical knee implant systems include, but
`
`are not limited to, the Wright Medical LINK Sled Prosthesis, and associated instruments for
`
`implanting the LINK Sled Prosthesis, including, but not limited to, MITUS Instruments.
`
`27.
`
`On information and belief, Defendants have infringed and continue to infringe the
`
`”821 patent, directly, indirectly, jointly, literally and/or by equivalents, by, among other things,
`
`using Wright Medical knee implant systems and/or using Wright Medical instruments to implant
`
`Wright Medical knee implants in a manner that practices the method of at least claim 8 of the
`
`”821 patent. These Wright Medical knee implant systems include, but are not limited to, the
`
`

`

`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 7 of 18 PageID #: 93
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 7 of 18 PageID #: 93
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`Wright Medical LINK Sled Prosthesis, and associated instruments for implanting the LINK Sled
`
`Prosthesis, including, but not limited to, MITUS Instruments.
`
`28.
`
`On information and belief, surgeons, physicians and medical professionals have
`
`infringed and continue to infringe the ’821 patent, directly, indirectly, jointly, literally and/or by
`
`equivalents, by, among other things, using Wright Medical knee implant systems, implanting
`
`Wright Medical knee implants, and/or using Wright Medical instruments in the United States in
`
`a manner that practices the method of at least claim 8 of the ’821 patent. These Wright Medical
`
`knee implant systems include, but are not limited to, the Wright Medical LINK Sled Prosthesis,
`
`and associated instruments for implanting the LINK Sled Prosthesis, including, but not limited
`
`to, MITUS Instruments.
`
`29.
`
`On information and belief, Defendants had and continue to have knowledge and
`
`are aware of Dr. Bonutti’s patents, including the ’821 patent.
`
`30.
`
`On information and belief, Defendants have infringed and continue to infringe the
`
`
`
`”821 patent, directly, indirectly, jointly, literally and/or by equivalents, by, among other things,
`
`encouraging,
`
`instructing, contributing to the infringement of, and otherwise encouraging,
`
`promoting and inducing surgeons, physicians and medical professionals to use Wright Medical
`
`knee implant systems, implant Wright Medical knee implant systems, and/or use Wright Medical
`
`instruments to implant Wright Medical knee implant systems Within the United States in a
`
`manner that practices the method of at least claim 8 of the ’821 patent.
`
`31.
`
`On information and belief, Defendants have encouraged, promoted and induced
`
`and continue to encourage, promote and induce the infringement of the method of at least claim
`
`8 of the ”821 patent, by,
`
`for example, creating and distributing Wright Medical surgical
`
`technique guides, brochures, instructions for use and package inserts that explain and set forth
`
`

`

`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 8 of 18 PageID #: 94
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 8 of 18 PageID #: 94
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`procedures and techniques for using Wright Medical knee implant systems, implanting Wright
`
`Medical knee implants, and/or using Wright Medical instruments to implant the Wright Medical
`
`knee implant systems. These surgical technique guides, brochures, instructions for use and
`
`package inserts which encourage, promote, teach, induce and set forth the method of infringing
`
`at least claim 8 of the ‘821 patent are for at least the Wright Medical LINK Sled Prosthesis, and
`
`associated instruments for implanting'the LINK Sled Prosthesis,lincluding, but not limited to,
`
`MITUS Instruments.
`
`32.
`
`On information and belief, Defendants have encouraged, promoted and induced
`
`and continue to encourage, promote and induce the infringement of the method of at least claim
`
`8 of the ”821 patent, by, for example, designing, manufacturing, offering for sale, selling,
`
`distributing and instructing of surgeons, physicians and medical professionals in the use of
`
`instruments
`
`specially designed and used for
`
`implanting Wright Medical knee implants,
`
`including, but not limited to, the instruments specially designed and used for implanting LINK
`
`Sled Prosthesis, including, but not limited to, MITUS Instruments.
`
`33.
`
`On information and belief, Defendants have encouraged, promoted and
`
`contributed to and continue to encourage, promote and contribute to the infringement of the
`
`method of at least claim 8 of the ’821 patent, by, for example, designing, manufacturing, offering
`
`for sale, selling and distributing to surgeons, physicians, medical professionals and healthcare
`
`institutions instruments specially designed and used for
`
`implanting Wright Medical knee
`
`implants and instructing surgeons, physicians and medical professionals in the use of these
`
`specially designed instruments to implant Wright Medical knee implants,
`
`including, but not
`
`limited to, the instruments specially designed and used for implanting the LINK Sled Prosthesis,
`
`including, but not limited to, MITUS Instruments. These specialty designed instruments are
`
`

`

`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 9 of 18 PageID #: 95
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 9 of 18 PageID #: 95
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`specifically designed to promote, encourage and assist surgeons and medical professionals in
`
`techniques that infringe the method of at least claim 8 of the ‘821 patent, and, on information and
`
`belief, these specially designed instruments are not staple articles of commerce and have no
`
`substantial non~infringing uses.
`
`34.
`
`On information and belief, Defendants have had and continue to have knowledge
`
`of the ’821 patent, have been and are aware of the direct infringement of the ’821 patent, and
`
`have intended and continue to intend to induce and/or contribute to that infringement.
`
`35.
`
`Because Defendants knew of the ’821 patent, Defendants have ignored and/or
`
`disregarded that Defendants’ actions constituted infringement of a valid patent and Defendants
`
`continue to ignore and/or disregard an objectively high risk that Defendants’ actions constitute
`
`infringement of a valid patent.
`
`36.
`
`On information and belief, Defendants” infringement of the ”821 patent is and has
`
`been willful and deliberate.
`
`COUNT II — INFRINGEMENT OF THE ’229 PATENT
`
`37.
`
`Bonutti Skeletal realleges and incorporates by reference each of the preceding
`
`paragraphs.
`
`38.
`
`On information and belief, Defendants, directly or through the actions of their
`
`employees, divisions and/or subsidiaries, have infringed and continue to infringe the ”229 patent
`
`directly, indirectly (by inducing infringement by others or contributing to infringement), jointly,
`
`literally and/or by equivalents.
`
`39.
`
`On information and beiief, Defendants have infringed and continue to infringe the
`
`’229 patent, directly, indirectly, jointly, literally and/or by equivalents, by, among other things,
`
`making, using, offering for sale, selling, distributing and/or importing Wright Medical products
`
`9
`
`

`

`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 10 of 18 PageID #: 96
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 10 of 18 PageID #: 96
`
`Within the United States that infringe or are for use in a manner that practices the method of at
`
`least claim 1 of the ’229 patent. The Wright Medical products that infringe or are used to
`
`infringe the method of at least claim 1 of the ’229 patent include, or are included in, Wright
`
`Medical knee implant systems, and associated instruments used with and for implanting these
`
`Wright Medical knee implant systems. These Wright Medical knee implant systems include, but
`
`are not limited to, the Wright Medical ADVANCE Knee System, and associated instruments
`
`including, but not limited to, the ODYSSEY instrumentation.
`
`40.
`
`On information and belief, Defendants have infringed and continue to infringe the
`
`”229 patent, directly, indirectly, jointly, literally and/or by equivalents, by, among other things,
`
`using Wright Medical knee implant systems and/or using Wright Medical instruments to implant
`
`Wright Medical knee implants in a manner that practices the method of at least claim 1 of the
`
`’229 patent. These Wright Medical knee implant systems include, but are not limited to, the
`
`Wright Medical ADVANCE Knee System, and associated instruments including, but not limited
`
`to, the ODYSSEY instrumentation.
`
`41.
`
`On information and belief, surgeons, physicians and medical professionals have
`
`infringed and continue to infringe the ’229 patent, directly, indirectly, jointly, literally and/or by
`
`equivalents, by, among other things, using Wright Medical knee implant systems, implanting
`
`Wright Medical knee implants, and/or using Wright Medical instruments in the United States in
`
`a manner that practices the method of at least claim 1 of the ’229 patent. These Wright Medical
`
`knee implant systems include, but are not limited to,
`
`the Wright Medical ADVANCE Knee
`
`System, and associated instruments including, but not limited to, the ODYSSEY instrumentation.
`
`42.
`
`On information and belief, Defendants had and continue to have knowledge and
`
`are aware of Dr. Bonutti’s patents, including the ’229 patent.
`
`10
`
`

`

`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 11 of 18 PageID #: 97
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 11 of 18 PageID #: 97
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`43.
`
`On information and belief, Defendants have infringed and continue to infringe the
`
`
`
`’229 patent,‘ directly, indirectly, jointly, literally and/or by equivalents, by, among other things,
`
`encouraging,
`
`instructing, contributing to the infringement of, and otherwise encouraging,
`
`promoting and inducing surgeons, physicians and medical professionals to use Wright Medical
`
`knee implant systems, implant Wright Medical knee implant systems, and/or use Wright Medical
`
`instruments to implant Wright Medical knee implant systems Within the United States in a
`
`manner that practices the method of at least claim 1 of the ”229 patent.
`
`44.
`
`On information and belief, Defendants have encouraged, promoted and induced
`
`and continue to encourage, promote and induce the infringement of the method of at least claim
`
`1 of the ’229 patent, by,
`
`for example, creating and distributing Wright Medical surgical
`
`technique guides, brochures, instructions for use and package inserts that explain and set forth
`
`procedures and techniques for using Wright Medical knee implant systems, implanting Wright
`
`Medical knee implants, and/or using Wright Medical instruments to implant the Wright Medical
`
`knee implant systems. These surgical technique guides, brochures, instructions for use and
`
`package inserts which encourage, promote, teach, induce and set forth the method of infringing
`
`at least claim 1 of the ‘229 patent are for at least the Wright Medical ADVANCE Knee System,
`
`and associated instruments including, but not limited to, the ODYSSEY instrumentation.
`
`45.
`
`On information and'belief, Defendants have encouraged, promoted and induced
`
`and continue to encourage, promote and induce the infringement of the method of at least claim
`
`1 of the ’229 patent, by, for example, designing, manufacturing, offering for sale, selling and
`
`instructing of surgeons, physicians and medical professionals in the use of instruments specially
`
`designed and used for implanting Wright Medical knee implants, including, but not limited to,
`
`11
`
`
`
`

`

`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 12 of 18 PageID #: 98
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 12 of 18 PageID #: 98
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`the instruments specially designed and used for impianting the ADVANCE Knee System,
`
`inciuding, but not limited to, the ODYSSEY instrumentation.
`
`46.
`
`On information and belief, Defendants have encouraged, promoted and
`
`contributed to and continue to encourage, promote and contribute to the infringement of the
`
`method of at least claim 1 of the ’229 patent, by, for example, designing, manufacturing, offering
`
`for sale, selling and distributing to surgeons, physicians, medical professionals and healthcare
`
`institutions instruments specially designed and used for implanting Wright Medical knee
`implants and instructing surgeons, physicians and medical professionals in the use of these
`specially designed instruments to implant Wright Medical knee implants,
`including, but not
`
`limited to,
`
`the instruments specially designed and used for implanting the Wright Medical
`
`ADVANCE Knee System, inciuding, but not limited to, the ODYSSEY instrumentation. These
`
`specially designed instruments are specifically designed to promote, encourage and assist
`
`surgeons and medical professionals in‘techniques that infringe the method of at least claim 1 of
`
`the ‘229 patent, and, on information and belief, these specially designed instruments are not
`
`staple articles of commerce and have no substantial non-infringing uses.
`
`47.
`
`On information and belief, Defendants have had and continue to have knowledge
`
`of the ”229 patent, have been and are aware of the direct infringement of the ”229 patent, and
`
`have intended and continue to intend to induce and/or contribute to that infringement.
`
`48.
`
`Because Defendants knew of the ’229 patent, Defendants have ignored and/or
`
`disregarded that Defendants’ actions constituted infringement of a valid patent and Defendants
`
`continue to ignore and/or disregard an objectively high risk that Defendants’ actions constitute
`
`infringement of a valid patent.
`
`12
`
`

`

`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 13 of 18 PageID #: 99
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 13 of 18 PageID #: 99
`
`49.
`
`On information and belief, Defendants’ infringement of the ”229 patent is and has
`
`been willful and deliberate.
`
`COUNT III — INFRINGEMENT OF THE ’896 PATENT
`
`50.
`
`Bonut‘ti Skeletal realleges and incorporates by reference each of the preceding
`
`paragraphs.
`
`51.
`
`On information and belief, Defendants, directly or through the actions of their
`
`employees, divisions and/or subsidiaries, have infringed and continue to infringe the ’896 patent
`
`directly, indirectly (by inducing infringement by others or contributing to infringement), jointly,
`
`literally and/or by equivalents.
`
`52.
`
`On information and belief, Defendants have infringed and continue to infringe the
`
`’896 patent, directly, indirectly, jointly, literally and/or by equivalents, by, among other things,
`
`making, using, offering for sale, selling, distributing and/or importing Wright Medical products
`
`within the United States that infringe or are for use in a manner that practices the methods of at
`
`least claims 1, 13 and 40 of the ’896 patent. The Wright Medical products that infringe or are
`
`used to infringe the methods of at least 'claims 1, l3 and 40 of the ’896 patent include, or are
`
`included in, Wright Medical knee implant systems, and associated instruments used with and for
`
`implanting these Wright Medical knee implant systems. These Wright Medical knee implant
`
`systems include, but are not limited to, the Wright Medical ADVANCE Knee System, and
`
`associated instruments including, but not
`
`limited to,
`
`the ODYSSEY instrumentation and
`
`PROPHECY guides.
`
`53.
`
`On information and belief, Defendants have infringed and continue to infringe the
`
`’896 patent, directly, indirectly, jointly, literally and/or by equivalents, by, among other things,
`
`using Wright Medical knee implant systems and/or using Wright Medical instruments to implant
`
`13
`
`

`

`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 14 of 18 PageID #: 100
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 14 of 18 PageID #: 100
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`Wright Medical knee implants in a manner that practices the methods of at least claims 1, 13 and
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`40 of the ’896 patent. These Wright Medical knee implant systems include, but are not limited
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`to, the Wright Medical ADVANCE Knee System, and associated instruments including, but not
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`limited to, the ODYSSEY instrumentation and PROPHECY guides.
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`54.
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`On information and belief, surgeons, physicians and medical professionals have
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`infringed and continue to infringe the ”896 patent, directly, indirectly, jointly, literally and/or by
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`equivalents, by, among other things, using Wright Medical knee impiant systems, implanting
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`Wright Medical knee implants, and/or using Wright Medical instruments in the United States in
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`a manner that practices the methods of at least claims 1, l3 and 40 of the ’896 patent. These
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`Wright Medical knee implant systems include, but are not limited to,
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`the Wright Medical
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`ADVANCE Knee System, and associated instruments including, but not
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`limited to,
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`the
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`ODYSSEY instrumentation and PROPHECY guides.
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`55.
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`On information and belief, Defendants had and continue to have knowledge and
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`are aware of Dr. Bonutti’s patents, including the ’896 patent.
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`56.
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`On information and belief, Defendants have infringed and continue to infringe the
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`’896 patent, directly, indirectly, jointly, literally and/or by equivalents, by, among other things,
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`encouraging,
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`instructing, contributing to the infringement of, and otherwise encouraging,
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`promoting and inducing surgeons, physicians and medical professionals to use Wright Medical
`knee implant systems, implant Wright Medical knee implant systems, and/or use Wright Medical
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`instruments to implant Wright Medical knee implant systems within the United States in a
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`manner that practices the methods of at least claims 1, l3 and 40 of the ’896 patent.
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`57.
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`On information and belief, Defendants have encouraged, promoted and induced
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`and continue to encourage, promote and induce the infringement of the methods of at least
`
`14
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`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 15 of 18 PageID #: 101
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 15 of 18 PageID #: 101
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`claims 1, 13 and 40 of the ’896 patent, by, for example, creating and distributing Wright Medical
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`surgical technique guides, brochures, instructions for use and package inserts that explain and set
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`forth procedures and techniques for using Wright Medical knee implant systems, implanting
`Wright Medical knee implants, and/or using Wright Medical instruments to implant the Wright
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`Medical knee implant systems. These surgical technique guides, brochures, instructions for use
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`and package inserts which encourage, promote,
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`teach,
`
`induce and set forth the method of
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`infringing at least claims 1, 13 and 40 claim of the ”896 patent are for at least the Wright Medical
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`ADVANCE Knee System, and associated instruments including, but not
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`limited to,
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`the
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`ODYSSEY instrumentation and PROPHECY guides.
`
`58.
`
`On information and belief, Defendants have encouraged, promoted and induced
`
`and continue to encourage, promote and induce the infringement of the methods of at least
`
`claims 1, 13 and 40 of the ’896 patent, by, for example, designing, manufacturing, offering for
`
`sale, selling, distributing and instructing of surgeons, physicians and medical professionals in the
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`use of instruments specially designed and used for implanting Wright Medical knee implants,
`
`including, but not limited to, the instruments specially designed and used for implanting the
`
`Wright Medical ADVANCE Knee Systems,
`
`including, but not limited to,
`
`the ODYSSEY
`
`instrumentation and PROPHECY guides.
`
`59.
`
`On information and belief, Defendants have encouraged, promoted and
`
`contributed to and continue to encourage, promote and contribute to the infringement of the
`
`methods of at
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`least claims 1, 13 and 40 of the ’896 patent, by, for example, designing,
`
`manufacturing, offering for sale, selling and distributing to surgeons, physicians, medical
`
`professionals and healthcare institutions instruments specially designed and used for implanting
`
`Wright Medical knee implants and instructing surgeons, physicians and medical professionals in
`
`15
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`

`

`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 16 of 18 PageID #: 102
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 16 of 18 PageID #: 102
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`the use of these specially designed instruments to implant Wright Medical knee implants,
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`including, but not limited to, the instruments specially designed and used for implanting the
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`ADVANCE Knee System, including, but not limited to, the ODYSSEY instrumentation and
`
`PROPHECY guides. These specially designed instruments are specifically designed to promote,
`
`encourage and assist surgeons and medical professionals in techniques that infringe the methods
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`of at least claims 1, 13 and 40 of the ’896 patent, and, on information and belief, these specially
`
`designed instruments are not staple articles of commerce and have nosubstantial non-infringing
`
`- uses.
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`60.
`
`On information and belief, Defendants have had and continue to have knowledge
`
`of the ’896 patent, have been and are aware of the direct infringement of the ’896 patent, and
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`have intended and continue to intend to induce and/or contribute to that infringement.
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`61.
`
`Because Defendants knew of the ’896 patent, Defendants have ignored and/or
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`disregarded that Defendants’ actions constituted infringement of a valid patent and Defendants
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`continue to ignore and/or disregard an objectively high risk that Defendants’ actions constitute
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`infringement of a valid patent.
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`62.
`
`On information and belief, Defendants’ infringement of the ”896 patent is and has
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`been willful and deliberate.
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`DAMAGES AND RELIEF
`
`63.
`
`As a consequence of Defendants’ infringement of the ’82] patent, the ’229 patent
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`and ’896 patent, Bonutti Skeletal has, been damaged in an amount not yet determined and will
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`suffer additional irreparable damage unless Defendants’ infringing acts are enjoined by this
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`Court.
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`16
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`

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`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 17 of 18 PageID #: 103
`Case 1:12-cv-01110-GMS Document 7 Filed 01/15/13 Page 17 of 18 PageID #: 103
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`PRAYER FOR RELIEF
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`WHEREFORE, Bonutti Skeletal respectfully requests that the Court enter judgment
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`against Defendants:
`
`A.
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`Determining that Defendants have infringed and continue to infringe one or more
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`claims of the ”821 patent;
`
`B.‘
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`Determining that Defendants have infringed and continue to infringe one or more
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`claims of the ’229 patent;
`
`C.
`