Case 2:14-cv-00451-HRH Document 1 Filed 03/06/14 Page 1 of 8
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`Charles F. Hauff Jr. (#014465)
`chauff@swlaw.com
`David G. Barker (#024657)
`dbarker@swlaw.com
`Trisha D. Farmer (#028809)
`tfarmer@swlaw.com
`SNELL & WILMER
`One Arizona Center
`400 East Van Buren Street
`Suite 1900
`Phoenix, AZ 85004
`Phone: (602) 382-6000
`Facsimile: (602) 382-6070
`
`Joseph F. Jennings (pending pro hac vice application)
`joseph.jennings@knobbe.com
`Christy G. Lea (pending pro hac vice application)
`christy.lea@knobbe.com
`Jenna C. Kelleher (pending pro hac vice application)
`jenna.kelleher@knobbe.com
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street
`Fourteenth Floor
`Irvine, CA 92614
`Phone: (949) 760-0404
`Facsimile: (949) 760-9502
`
`Attorneys for Plaintiff
`CAYENNE MEDICAL, INC.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
`
`No.
`COMPLAINT FOR PATENT
`INFRINGEMENT
`
`(Jury Trial Demanded)
`
`))))))))))))
`
`Cayenne Medical, Inc., a Delaware
`corporation,
`
`Plaintiff,
`
`v.
`MedShape, Inc., a Georgia corporation,
`Defendant.
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`MEDSHAPE Ex. 1002, p. 1 of 8
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`Case 2:14-cv-00451-HRH Document 1 Filed 03/06/14 Page 2 of 8
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`Plaintiff Cayenne Medical, Inc. (“Cayenne” or “Plaintiff”) hereby complains of
`Defendant MedShape, Inc. (“Defendant” or “MedShape”) and alleges as follows:
`I. JURISDICTION AND VENUE
`1.
`This action arises under the Patent Laws of the United States, Title 35 of
`the United States Code. This Court has subject matter jurisdiction in this action
`pursuant to 28 U.S.C. §§ 1331 and 1338(a).
`2.
`Defendant is subject to personal jurisdiction in this Court. In particular,
`this Court has personal jurisdiction over Defendant because Defendant has a
`continuous, systematic, and substantial presence within this judicial district, including
`substantial marketing and sale of products in this judicial district. Further, this Court
`has personal jurisdiction over Defendant in this case, because Defendant has
`committed the acts giving rise to Cayenne’s claim for patent infringement within and
`directed to this district.
`3.
`Venue is proper in this Judicial District under 28 U.S.C. §§ 1391(b)-(d)
`and 1400(b).
`
`II. THE PARTIES
`4.
`Cayenne is a corporation organized and existing under the laws of the
`State of Delaware and having a principal place of business at 16597 North 92nd
`Street, Suite 101, Scottsdale, Arizona, 85260.
`5.
`Defendant is, upon information and belief, a corporation organized and
`existing under the laws of the State of Georgia, having a principle place of business at
`1575 Northside Drive, NW, Suite 440, Atlanta, Georgia, 30318.
`III. THE PATENTS AND GENERAL ALLEGATIONS
`6.
`On January 26, 2010, the U.S. Patent and Trademark Office (“Patent
`Office”) duly and lawfully issued U.S. Patent No. 7,651,528 entitled “Devices,
`Systems, and Methods for Material Fixation” (the “’528 Patent”). Cayenne is the
`owner by assignment of the ’528 Patent. A copy of the ’528 Patent is attached hereto
`as Exhibit A.
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`MEDSHAPE Ex. 1002, p. 2 of 8
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`Case 2:14-cv-00451-HRH Document 1 Filed 03/06/14 Page 3 of 8
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`7.
`On May 7, 2013, the Patent Office duly and lawfully issued U.S. Patent
`No. 8,435,294 entitled “Devices, Systems, and Methods for Material Fixation” (the
`“’294 Patent”). Cayenne is the owner by assignment of the ’294 Patent. A copy of
`the ’294 Patent is attached hereto as Exhibit B.
`8.
`The ’528 and ’294 Patents claim, inter alia, novel devices, systems, and
`methods for attaching soft material (e.g., tendon) to bone. The device and/or method
`can be used, for example, in reconstructing or repairing torn or diseased ligaments and
`tendons.
`9.
`Cayenne markets the AperFix® System, which is a device and method
`for attaching tendon to a bone, e.g., it can be used to reconstruct cruciate ligaments of
`the knee such as the anterior cruciate ligament (ACL) and others. The AperFix
`System is covered by the ’528 and ’294 Patents. The product brochure for the
`AperFix System states that it is “covered by one or more U.S. patents pending.”
`10.
`In July 2011, MedShape hired Lindsey Wolf (now Lindsey Arleth) as
`Director of Sales for the Southeast territory. Ms. Wolf was previously employed as a
`District Sales Manager at Cayenne from March 2010 to July 2011. During her
`employment at Cayenne, Ms. Wolf was informed that Cayenne had patents that
`covered the AperFix System.
`11.
`In March 2012, MedShape hired Josh Ray as an employee responsible
`for U.S. and International Sales. Mr. Ray was previously employed as a Regional
`Sales Manager at Cayenne from April 2007 to March 2012. During his employment
`at Cayenne, Mr. Ray was informed that Cayenne had patents that covered the AperFix
`System.
`12.
`In April 2013, MedShape hired Tim Nash as its Senior Vice President of
`Sales and Marketing. Mr. Nash was previously employed as the Vice President of
`Marketing at Cayenne from April 2007 to April 2012. During his employment at
`Cayenne, Mr. Nash was informed that Cayenne had obtained the ’528 Patent in
`January 2010 and was aware that Cayenne had filed a continuation patent application
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`MEDSHAPE Ex. 1002, p. 3 of 8
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`Case 2:14-cv-00451-HRH Document 1 Filed 03/06/14 Page 4 of 8
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`related to the ’528 Patent (later issued as the ’294 Patent). Mr. Nash was informed
`that the ’528 Patent and the pending patent application that later issued as the ’294
`Patent contained claims that covered the AperFix System.
`13.
`In January 2014, MedShape announced the launch of the ExoShape®
`FEMORAL Soft Tissue Fastener (also known as the ExoShape® Soft Tissue Fastener
`or the ExoShape® ACL Fixation System) (hereinafter “ExoShape”) in direct
`competition with the Cayenne AperFix System. As part of their launch of ExoShape,
`MedShape targeted its announcement at customers and users of the Cayenne AperFix
`System. Upon information and belief, Mr. Nash and Mr. Ray were directly involved
`in contacting Cayenne’s customers and users to promote ExoShape.
`IV. FIRST CLAIM FOR RELIEF
`(Infringement of U.S. Patent No. 7,651,528)
`14. Cayenne repeats, realleges, and incorporates by reference the allegations
`set forth in paragraphs 1 through 13 of this Complaint.
`15.
`This is a claim for patent infringement and arises under the Patent Laws
`of the United States, Title 35 of the United States Code.
`16. Defendant has been, and currently is, directly infringing the ’528 Patent,
`contributing to the infringement of the ’528 Patent, and/or inducing infringement of
`the ’528 Patent by directly or indirectly making, using, selling and/or offering to sell
`in the United States, and/or importing into the United States tissue fixation systems
`including, but not limited to, ExoShape, that is covered by at least one claim of the
`’528 Patent. Defendant’s acts constitute infringement of the ’528 Patent in violation
`of 35 U.S.C. § 271.
`17. Defendant has contributed to infringement of the ’528 Patent by, inter
`alia, marketing and selling ExoShape, because ExoShape is not a staple article or
`commodity of commerce suitable for substantial non-infringing use, and is known by
`Defendant to be especially made or especially adapted for use in infringement of the
`’528 Patent. As a result, Defendant’s customers and physicians have used ExoShape
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`MEDSHAPE Ex. 1002, p. 4 of 8
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`Case 2:14-cv-00451-HRH Document 1 Filed 03/06/14 Page 5 of 8
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`in a manner that directly infringes the ’528 Patent.
`18. Defendant has knowingly and actively induced infringement of the ’528
`Patent by, inter alia, marketing and selling ExoShape knowing and intending that
`Defendant’s customers and physicians use it in a manner that infringes the ’528
`Patent. To that end, Defendant provides instructions and teachings to its customers
`and physicians that such systems and devices be used in the manner claimed in the
`’528 Patent. As a result, Defendant’s customers and physicians have used ExoShape
`in a manner that directly infringes the ’528 Patent.
`19. Defendant has been and is currently committing these acts of
`infringement without license or authorization from Cayenne.
`20. Defendant’s infringement has been and continues to be intentional,
`knowing, willful, and deliberate, with full knowledge of Cayenne’s rights.
`21. Upon information and belief, Defendant’s infringement will continue
`unless enjoined by this Court.
`22. Upon information and belief, Defendant has derived and received, and
`will continue to derive and receive, gains, profits, and advantages from the aforesaid
`acts of infringement in an amount that is not presently known to Cayenne.
`23. As a direct and proximate consequence of Defendant’s infringement of
`the ’528 Patent, Cayenne has suffered, and will continue to suffer, damages in an
`amount not yet determined.
`24. Because of the aforesaid infringing acts, Cayenne has suffered and
`continues to suffer great and irreparable injury, for which Cayenne has no adequate
`remedy at law.
`
`V. SECOND CLAIM FOR RELIEF
`(Infringement of U.S. Patent No. 8,435,294)
`25. Cayenne repeats, realleges, and incorporates by reference the allegations
`set forth in paragraphs 1 through 24 of this Complaint.
`26.
`This is a claim for patent infringement and arises under the Patent Laws
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`MEDSHAPE Ex. 1002, p. 5 of 8
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`Case 2:14-cv-00451-HRH Document 1 Filed 03/06/14 Page 6 of 8
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`of the United States, Title 35 of the United States Code.
`27. Defendant has been, and currently is, directly infringing the ’294 Patent,
`contributing to the infringement of the ’294 Patent, and/or inducing infringement of
`the ’294 Patent by directly or indirectly making, using, selling and/or offering to sell
`in the United States and/or importing into the United States tissue fixation systems,
`including, but not limited to, ExoShape, that is covered by at least one claim of the
`’294 Patent. Defendant’s acts constitute infringement of the ’294 Patent in violation
`of 35 U.S.C. § 271.
`28. Defendant has contributed to infringement of the ’294 Patent by, inter
`alia, marketing and selling ExoShape, because ExoShape is not a staple article or
`commodity of commerce suitable for substantial non-infringing use, and is known by
`Defendant to be especially made or especially adapted for use in infringement of the
`’294 Patent. As a result, Defendant’s customers and physicians have used ExoShape
`in a manner that directly infringes the ’294 Patent.
`29. Defendant has knowingly and actively induced infringement of the ’294
`Patent by, inter alia, marketing and selling ExoShape knowing and intending that
`Defendant’s customers and physicians use it in a manner that infringes the ’294
`Patent. To that end, Defendant provides instructions and teachings to its customers
`and physicians that such systems and devices be used in the manner claimed in the
`’294 Patent. As a result, Defendant’s customers and physicians have used ExoShape®
`in a manner that directly infringes the ’294 Patent.
`30. Defendant has been and is currently committing these acts of
`infringement without license or authorization from Cayenne.
`31. Defendant’s infringement has been and continues to be intentional,
`knowing, willful, and deliberate, with full knowledge of Cayenne’s rights.
`32. Upon information and belief, Defendant’s infringement will continue
`unless enjoined by this Court.
`33. Upon information and belief, Defendant has derived and received, and
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`MEDSHAPE Ex. 1002, p. 6 of 8
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`Case 2:14-cv-00451-HRH Document 1 Filed 03/06/14 Page 7 of 8
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`will continue to derive and receive, gains, profits, and advantages from the aforesaid
`acts of infringement in an amount that is not presently known to Cayenne.
`34. As a direct and proximate consequence of Defendant’s infringement of
`the ’294 Patent, Cayenne has suffered, and will continue to suffer, damages in an
`amount not yet determined.
`35. Because of the aforesaid infringing acts, Cayenne has suffered and
`continues to suffer great and irreparable injury, for which Cayenne has no adequate
`remedy at law.
`
`PRAYER FOR RELIEF
`WHEREFORE, Cayenne seeks relief as follows:
`A.
`That the Defendant be adjudged to have infringed the ’528 Patent.
`B.
`That the Defendant be adjudged to have infringed the ’294 Patent.
`C.
`That the Defendant be adjudged to have willfully and deliberately
`infringed the ’528 and ’294 Patents.
`D.
`That Defendant, its respective officers, directors, agents, servants,
`employees and attorneys, and all those persons in active concert or participation with
`them who receive actual notice of the Order, be preliminarily and permanently
`enjoined from directly or indirectly infringing the ’528 and ’294 Patents.
`E.
`That a judgment be entered against the Defendant awarding Cayenne all
`damages proven at trial, and in no event less than a reasonable royalty for
`infringement of the ’528 and ’294 Patents.
`F.
`That the damages in this judgment be trebled for Defendant’s knowing,
`intentional, and willful infringement of the ’528 Patent and ’294 Patent pursuant to 35
`U.S.C. § 284.
`G.
`That there be an assessment of pre-judgment and post-judgment interest
`and costs against the Defendant and in favor of Cayenne, and an award of this interest
`and costs to Cayenne.
`H.
`That this be judged an “exceptional” case within the meaning of 35
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`MEDSHAPE Ex. 1002, p. 7 of 8
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`Case 2:14-cv-00451-HRH Document 1 Filed 03/06/14 Page 8 of 8
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`U.S.C. § 285, and that Cayenne be awarded its attorneys’ fees pursuant thereto,
`recoverable from the Defendant.
`I.
`For such other and further relief as this Court may deem just.
`DEMAND FOR JURY TRIAL
`Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff
`Cayenne Medical, Inc. demands a trial by jury of all issues raised by the pleadings
`which are triable by jury.
`
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`Respectfully submitted,
`
`SNELL & WILMER
`
` By: /s Trisha D. Farmer
`Charles F. Hauff Jr.
`David G. Barker
`Trisha D. Farmer
`
`KNOBBE, MARTENS, OLSON & BEAR, LLP
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`
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`Joseph F. Jennings (pending pro hac vice appl.)
`Christy G. Lea (pending pro hac vice appl.)
`Jenna C. Kelleher (pending pro hac vice appl.)
`
`Attorneys for Plaintiff
`CAYENNE MEDICAL, INC.
`
`Dated: March 6, 2014
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` 18889875
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`MEDSHAPE Ex. 1002, p. 8 of 8
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