IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NORTH CAROLINA
`WESTERN DIVISION
`
`
`VALENCELL, INC.,
`
`
`C.A. No. ____
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`Plaintiff,
`
`
`v.
`
`APPLE INC.,
`
`Defendant.
`
`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff Valencell, Inc. (“Valencell”) files this Original Complaint against Apple Inc.
`
`(“Apple” or “Defendant”) for infringement of U.S. Patent Nos. 8,923,941 (“the ’941 patent”);
`
`8,886,269 (“the ’269 patent”); 8,929,965 (“the ’965 patent”); and 8,989,830 (“the ’830 patent”)
`
`(collectively “the patents-in-suit”).
`
`THE PARTIES
`
`Valencell is a Delaware corporation with its principal place of business at 4601
`
`
`1.
`
`Six Forks Rd., Suite 103, Raleigh, North Carolina.
`
`2.
`
` Apple is a California corporation with a principal place of business at 1 Infinite
`
`Loop, Cupertino, California 95014. Apple has designated CT Corporation System, 150
`
`Fayetteville St., Box 1011 Raleigh, NC 27601-2957 as its agent for service of process.
`
`JURISDICTION AND VENUE
`
`This Court has subject matter jurisdiction of this action under 28 U.S.C. §§ 1331
`
`
`3.
`
`and 1338(a), as an action arising under an Act of Congress relating to patents, 35 U.S.C. §§ 1 et
`
`seq.; under 28 U.S.C. § 1338(b), as an action arising under an Act of Congress relating to patents
`
`joined with a claim for unfair competition; and under this Court’s supplemental jurisdiction. This
`
`
`
`1
`
`Apple Inc.
`APL1005
`U.S. Patent No. 8,923,941
`
`

`
`Court has personal jurisdiction over Apple. Apple is subject to this Court’s specific and general
`
`personal jurisdiction pursuant to due process and/or the North Carolina long-arm statute,
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`N.C.G.S. § 1-75.4 due at least to its substantial business in this State and judicial district,
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`including: (A) at least part of their infringing activities alleged herein; and (B) regularly doing
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`or soliciting business, engaging in other persistent conduct, and/or deriving substantial
`
`revenue from goods sold and services provided to North Carolina residents.
`
`4.
`
`Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b), 1391(c) and
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`1400(b) because, among other things, Apple is subject to personal jurisdiction in this district, has
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`regularly conducted business in this judicial district, and certain of the acts complained of herein
`
`occurred in this judicial district. Further, a substantial part of the acts giving rise to the
`
`allegations of this Complaint occurred in this District.
`
`FACTUAL ALLEGATIONS
`
`On information and belief, in or around February 2013, Apple assembled a team
`
`
`5.
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`to develop and/or implement the Apple Watch. At that time, Apple intended to incorporate a
`
`heart sensor into the Apple Watch. Around that same time, Liang Hoe, a Senior Partnership
`
`Manager at Apple, contacted Valencell regarding a partnership opportunity. Apple expressed an
`
`interest in Valencell’s heart sensor technology.
`
`6.
`
`On information and belief, beginning in March 2013, Apple agents repeatedly
`
`accessed www.valencell.com (the “Valencell Website”) from at least the following IP addresses:
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`17.202.109.239, 17.208.106.158, 17.114.122.4, 17.216.30.100, 17.88.158.254, 17.209.11.188,
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`17.208.31.179, 17.208.110.251, 17.221.47.91, 17.247.87.225 (collectively the “Apple IP
`
`Addresses). Each of the Apple IP Addresses is assigned to Apple.
`
`
`
`2
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`

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`7.
`
`The Valencell Website contains various white papers, which relate to its biometric
`
`sensor solutions. Valencell offers such white papers in exchange for various identifying
`
`information regarding the downloader. On information and belief, Apple repeatedly accepted this
`
`offer, but obtained such white papers by providing fictitious information. On March 27, 2013
`
`and May 5, 2014, one or more Apple agents downloaded the “PerformTek Precision Biometrics:
`
`Engaging the Burgeoning Mobile Health and Fitness Market” white paper from Valencell using
`
`fictitious names. On March 10, 2014 and April 23, 2015, one or more Apple agents downloaded
`
`the “Earbud-Based Sensor for the Assessment of Energy Expenditure, Heart Rate, and VO2
`
`max” white paper from Valencell using fictitious names. On April 1, 2015 an Apple agent
`
`downloaded the “Earbud-Based Sensor for the Assessment of Energy Expenditure, Heart Rate,
`
`and VO2 max” white paper from Valencell using a fictitious name.
`
`8.
`
`On information and belief, the following Apple agents accessed the Valencell
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`Website: Brian Land, Matt Last, Nancy “Wren” Dougherty, Roger Miller, Thomas Pham, Mark
`
`Bagnola, and Mitch VanBruggen. Each of these individuals was involved in the design and/or
`
`implementation of the Apple Watch. Moreover, each of these individuals was involved in the
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`design and/or implementation of the heart sensor in the Apple Watch.
`
`9.
`
`On information and belief, Apple accessed the Valencell Website to obtain
`
`information regarding the structure and operation of PerformTek-Powered products. In June
`
`2013, Apple met with Valencell employees, including Dr. Steven LeBoeuf, to discuss
`
`incorporating PerformTek-Powered features into some of Apple’s products. The Valencell
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`Website provides notice that PerformTek-Powered products require a license to Valencell’s
`
`patents, including the patents-in-suit. Apple reviewed this notice and requested Valencell provide
`
`it with PerformTek-Powered products.
`
`
`
`3
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`

`
`10.
`
`On information and belief, in or around the summer of 2013, Valencell
`
`demonstrated a prototype PerformTek-Powered watch to approximately 15 Apple employees.
`
`The back of the watch included a heart-rate monitor that was substantially similar to the Apple
`
`Watch. One or more of the Apple employees in attendance was involved in the design and/or
`
`implementation of the Apple Watch.
`
`11.
`
`On information and belief, in or around August 2013, Apple received
`
`PerformTek-Powered products. Between September 2013 and March 2014, Apple conducted
`
`detailed testing on these products, including an analysis of the product circuitry.
`
`12.
`
`On information and belief, Apple expressed great interest in Valencell’s wrist-
`
`based heart sensor technology. Throughout 2014, Apple repeatedly requested information from
`
`Valencell regarding such technology. Apple did not sell any wrist-based products at that time.
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`The only wrist-based product that Apple sells is the Apple Watch. The Apple Watch was the
`
`only wrist-based product that Apple was working on in 2014. In December 2014, Apple met with
`
`Valencell employees, including Dr. LeBoeuf, to discuss Valencell’s wrist-based technology.
`
`13.
`
`On information and belief, Apple began shipping the Apple Watch on April 24,
`
`2015. Since at least that date, Apple has sold the Apple Watch in the United States. The Apple
`
`Watch contains a heart rate sensor, which it uses to calculate the pulse of the end user.
`
`14.
`
`On information and belief, Apple solicited technical information and know-how
`
`from Valencell on the false premise that it wished to license Valencell’s PerformTek
`
`Technology. Apple did not have an intention of licensing Valencell’s PerformTek Technology.
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`Instead, Apple’s interaction with Valencell was fueled by a business decision that the benefits of
`
`infringing upon Valencell’s patented technology outweigh the risk of being caught and
`
`ultimately forced to pay damages. This practice is consistent with the statement by Apple
`
`CEO Steve Jobs that Apple has “always been shameless about stealing great ideas.” Further,
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`
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`4
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`

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`Apple is knowingly using Valencell’s patented technology in an effort to achieve a licensing rate
`
`that is below a reasonable royalty.
`
`COUNT I
`(Infringement of U.S. Patent No. 8,923,941)
`
`15.
`
`16.
`
`Valencell incorporates paragraphs 1 through 14 herein by reference.
`
`Valencell is the assignee of the ’941 patent, entitled “Methods and apparatus
`
`for generating data output containing physiological and motion-related information,” with
`
`ownership of all substantial rights in the ’941 patent, including the right to exclude others
`
`and to enforce, sue, and recover damages for past and future infringements. A true and
`
`correct copy of the ’941 patent is attached as Exhibit A.
`
`17.
`
`The ’941 patent is valid, enforceable, and was duly issued in full compliance with
`
`Title 35 of the United States Code.
`
`18.
`
`Apple has and continues to directly infringe one or more claims of the ’941
`
`patent in this judicial district and elsewhere in North Carolina and the United States without
`
`the consent or authorization of Valencell, by or through their making, having made, offering
`
`for sale, selling, importing, and/or using wearable devices incorporating a heart rate sensor,
`
`including, but not limited to the Apple Watch. Apple’s infringement has been willful.
`
`19.
`
`20.
`
`The Apple Watch directly infringes at least claim 14 of the ’941 patent.
`
`The Apple Watch is a wearable device and includes a housing and a chipset
`
`enclosed within the housing. The chipset includes at least one PPG sensor, one motion sensor,
`
`and one signal processor that is configured to process signals from the motion sensor and the
`
`PPG sensor to reduce motion artifacts from the PPG signals. The Apple Watch housing includes
`
`at least one window that optically exposes the at least one PPG sensor to a body of a subject
`
`
`
`5
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`

`
`wearing the device. The Apple Watch housing includes a non-air light transmissive material in
`
`optical communication with the at least one PPG sensor and the window.
`
`21.
`
`Valencell has been damaged as a result of Apple’s infringing conduct described in
`
`this Count. Apple is, thus, liable to Valencell in an amount that adequately compensates
`
`Valencell for Apple’s infringements, which, by law, cannot be less than a reasonable royalty,
`
`together with interest and costs as fixed by this Court under 35 U.S.C. § 284.
`
`COUNT II
`(Infringement of U.S. Patent No. 8,886,269)
`
`22.
`
`23.
`
`Valencell incorporates paragraphs 1 through 21 herein by reference.
`
`Valencell is the assignee of the ’269 patent, entitled “Wearable light-guiding
`
`bands for physiological monitoring,” with ownership of all substantial rights in the ’269
`
`patent, including the right to exclude others and to enforce, sue, and recover damages for
`
`past and future infringements. A true and correct copy of the ’269 patent is attached as Exhibit
`
`B.
`
`24.
`
`The ’269 patent is valid, enforceable, and was duly issued in full compliance with
`
`Title 35 of the United States Code.
`
`25.
`
`Apple has and continues to directly infringe one or more claims of the ’269
`
`patent in this judicial district and elsewhere in North Carolina and the United States without
`
`the consent or authorization of Valencell, by or through their making, having made, offering
`
`for sale, selling, importing, and/or using wearable devices incorporating a heart rate sensor,
`
`including, but not limited to the Apple Watch. Apple’s infringement has been willful.
`
`26.
`
`27.
`
`The Apple Watch directly infringes at least claim 1 of the ’269 patent.
`
`The Apple Watch is a monitoring device and includes a band that encircles a
`
`portion of the subject’s body. The band includes a generally cylindrical outer body portion and a
`
`
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`6
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`

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`generally cylindrical inner body portion secured together in concentric relationship. The inner
`
`body portion includes a light transmissive material and has outer and inner surfaces. The inner
`
`body portion includes a layer of cladding material near the inner body portion inner surface with
`
`at least one window formed in the cladding material that serves as a light-guiding interface to the
`
`body of the subject. The Apple Watch includes at least one optical emitter and at least one
`
`optical detector attached to the band. The light transmissive material is in optical communication
`
`with the at least one optical emitter and the at least one optical detector and is configured to
`
`deliver light from the at least one optical emitter to one or more locations of the body of the
`
`subject via the at least one window and to collect light from one or more locations of the body of
`
`the subject via the at least one window and deliver the collected light to the at least one optical
`
`detector.
`
`28.
`
`Valencell has been damaged as a result of Apple’s infringing conduct described in
`
`this Count. Apple is, thus, liable to Valencell in an amount that adequately compensates
`
`Valencell for Apple’s infringements, which, by law, cannot be less than a reasonable royalty,
`
`together with interest and costs as fixed by this Court under 35 U.S.C. § 284.
`
`COUNT III
`(Infringement of U.S. Patent No. 8,929,965)
`
`29.
`
`30.
`
`Valencell incorporates paragraphs 1 through 28 herein by reference.
`
`Valencell is the assignee of the ’965 patent, entitled “Light-guiding devices
`
`and monitoring devices incorporating same,” with ownership of all substantial rights in the
`
`’965 patent, including the right to exclude others and to enforce, sue, and recover damages
`
`for past and future infringements. A true and correct copy of the ’965 patent is attached as
`
`Exhibit C.
`
`
`
`7
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`

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`31.
`
`The ’965 patent is valid, enforceable, and was duly issued in full compliance with
`
`Title 35 of the United States Code.
`
`32.
`
`Apple has and continues to directly infringe one or more claims of the ’965
`
`patent in this judicial district and elsewhere in North Carolina and the United States without
`
`the consent or authorization of Valencell, by or through their making, having made, offering
`
`for sale, selling, importing, and/or using wearable devices incorporating a heart rate sensor,
`
`including, but not limited to the Apple Watch. Apple’s infringement has been willful.
`
`33.
`
`34.
`
`The Apple Watch directly infringes at least claim 1 of the ’965 patent.
`
`The Apple Watch has a sensor for detecting and/or measuring physiological
`
`information from a subject. The Apple Watch includes a housing, at least one optical emitter that
`
`is supported by the housing, at least one optical detector that is supported by the housing, and a
`
`first light guide that is supported by the housing. The first light guide is in optical
`
`communication with the at least one optical emitter. The first light guide comprises a distal end
`
`having an exposed end surface that is configured to engage a portion of a body of the subject.
`
`The first light guide is configured to deliver light from the at least one optical emitter directly
`
`into the body of the subject via the exposed end surface thereof. The Apple Watch includes a
`
`second light guide that is supported by the housing. The second light guide is in optical
`
`communication with the at least one optical detector. The second light guide includes a distal end
`
`having an exposed end surface that is configured to engage a portion of the body of the subject.
`
`The second light guide is configured to collect light directly from the body of the subject via the
`
`exposed end surface thereof and deliver collected light to the at least one optical detector.
`
`35.
`
`Valencell has been damaged as a result of Apple’s infringing conduct described in
`
`this Count. Apple is, thus, liable to Valencell in an amount that adequately compensates
`
`
`
`8
`
`

`
`Valencell for Apple’s infringements, which, by law, cannot be less than a reasonable royalty,
`
`together with interest and costs as fixed by this Court under 35 U.S.C. § 284.
`
`COUNT IV
` (Infringement of U.S. Patent No. 8,989,830)
`
`36.
`
`37.
`
`Valencell incorporates paragraphs 1 through 35 herein by reference.
`
`Valencell is the assignee of the ’830 patent, entitled “Wearable light-guiding
`
`devices for physiological monitoring,” with ownership of all substantial rights in the ’830
`
`patent, including the right to exclude others and to enforce, sue, and recover damages for
`
`past and future infringements. A true and correct copy of the ’830 patent is attached as Exhibit
`
`D.
`
`38.
`
`The ’830 patent is valid, enforceable, and was duly issued in full compliance with
`
`Title 35 of the United States Code.
`
`39.
`
`Apple has and continues to directly infringe one or more claims of the ’830
`
`patent in this judicial district and elsewhere in North Carolina and the United States without
`
`the consent or authorization of Valencell, by or through their making, having made, offering
`
`for sale, selling, importing, and/or using wearable devices incorporating a heart rate sensor,
`
`including, but not limited to the Apple Watch. Apple’s infringement has been willful.
`
`40.
`
`The Apple Watch directly infringes at least claim 1 of the ’830 patent. The Apple
`
`Watch has a monitoring device configured to be attached to the body of a subject. The Apple
`
`Watch includes an outer layer and an inner layer secured together. The inner layer includes light
`
`transmissive material and has inner and outer surfaces. The Apple Watch includes a base secured
`
`to at least one of the outer and inner layers. The base includes at least one optical emitter and at
`
`least one optical detector. The Apple Watch includes a layer of cladding material near the outer
`
`surface of the inner layer. The Apple Watch includes at least one window formed in the layer of
`
`
`
`9
`
`

`
`cladding material that serves as a light-guiding interface to the body of the subject. The light
`
`transmissive material is in optical communication with the at least one optical emitter and the at
`
`least one optical detector. The light transmissive material is configured to deliver light from the
`
`at least one optical emitter to the body of the subject along a first direction and to collect light
`
`from the body of the subject and deliver the collected light in a second direction to the at least
`
`one optical detector, and the first and second directions are substantially parallel.
`
`41.
`
`Valencell has been damaged as a result of Apple’s infringing conduct described in
`
`this Count. Apple is, thus, liable to Valencell in an amount that adequately compensates
`
`Valencell for Apple’s infringements, which, by law, cannot be less than a reasonable royalty,
`
`together with interest and costs as fixed by this Court under 35 U.S.C. § 284.
`
`COUNT V
`(Breach of Contract I)
`
`42.
`
`43.
`
`Valencell incorporates paragraphs 1 through 41 herein by reference.
`
`On the Valencell Website, Valencell offers to provide certain white papers
`
`available for download in exchange for the organization, name, and email address of the
`
`recipient. Valencell receives this information via a form on the Valencell Website. This
`
`information has value to Valencell as it demonstrates industry recognition of Valencell’s
`
`technological achievements and can inform negotiations.
`
`44.
`
`Apple accepted Valencell’s offer to provide a white paper on March 27, 2013
`
`from IP address 17.202.109.239, but did not provide the organization, name, and email address
`
`of the recipient. A valid contract existed between Apple and Valencell whereby Valencell would
`
`provide the “PerformTek Precision Biometrics: Engaging the Burgeoning Mobile Health and
`
`Fitness Market” white paper in exchange for the organization, name, and email address of the
`
`
`
`10
`
`

`
`recipient. Apple breached this contract by not providing the organization, name, and email
`
`address of the recipient.
`
`45.
`
`Valencell has been damaged as a result of the breach of contract identified in this
`
`Count.
`
`46.
`
`47.
`
`COUNT VI
`(Breach of Contract II)
`
`Valencell incorporates paragraphs 1 through 45 herein by reference.
`
`On the Valencell Website, Valencell offers to provide certain white papers
`
`available for download in exchange for the organization, name, and email address of the
`
`recipient. Valencell receives this information via a form on the Valencell Website. This
`
`information has value to Valencell as it demonstrates industry recognition of Valencell’s
`
`technological achievements and can inform negotiations.
`
`48.
`
`Apple accepted Valencell’s offer to provide a white paper on March 10, 2014
`
`from IP address 17.216.30.100, but did not provide the organization, name, and email address of
`
`the recipient. A valid contract existed between Apple and Valencell whereby Valencell would
`
`provide the “Earbud-Based Sensor for the Assessment of Energy Expenditure, Heart Rate, and
`
`VO2 max” white paper in exchange for the organization, name, and email address of the
`
`recipient. Apple breached this contract by not providing the organization, name, and email
`
`address of the recipient.
`
`49.
`
`Valencell has been damaged as a result of the breach of contract identified in this
`
`Count.
`
`
`
`COUNT VII
`(Breach of Contract III)
`
`50.
`
`Valencell incorporates paragraphs 1 through 49 herein by reference.
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`11
`
`

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`51.
`
`On the Valencell Website, Valencell offers to provide certain white papers
`
`available for download in exchange for the organization, name, and email address of the
`
`recipient. Valencell receives this information via a form on the Valencell Website. This
`
`information has value to Valencell as it demonstrates industry recognition of Valencell’s
`
`technological achievements and can inform negotiations.
`
`52.
`
`Apple accepted Valencell’s offer to provide a white paper on April 1, 2015 from
`
`IP address 17.208.110.251, but did not provide the organization, name, and email address of the
`
`recipient. A valid contract existed between Apple and Valencell whereby Valencell would
`
`provide the “Validation of iRiver ON with PerformTek Sensor Technology Earbud Heart Rate
`
`Sensor” white paper in exchange for the organization, name, and email address of the recipient.
`
`Apple breached this contract by not providing the organization, name, and email address of the
`
`recipient.
`
`53.
`
`Valencell has been damaged as a result of the breach of contract identified in this
`
`Count.
`
`COUNT VIII
`(Unfair and Deceptive Trade Practices/Unfair Competition N.C.G.S § 75-1.1)
`
`54.
`
`55.
`
`Valencell incorporates paragraphs 1 through 53 herein by reference.
`
`The actions of Apple as described above (separate and apart from the patent
`
`infringement acts) constitute unfair and deceptive trade practices and unfair competition
`
`affecting commerce and causing injury to the business and property of Valencell in violation of
`
`N.C.G.S § 75-1.1. Such actions include, but are not limited to, the misrepresentations regarding
`
`the identity of Apple’s agents to Valencell. Such actions also include, but are not limited to,
`
`Apple’s misrepresentations regarding a sincere interest in partnering with Valencell. Such
`
`
`
`12
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`

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`actions also include, but are not limited to, Apple’s attempts to achieve a licensing rate that is
`
`below a reasonable royalty.
`
`56.
`
`As a result of Apple’s foregoing conduct, Valencell suffered actual damages.
`
`JURY DEMAND
`
`Valencell hereby requests a trial by jury pursuant to Rule 38 of the Federal Rules of
`
`Civil Procedure.
`
`PRAYER FOR RELIEF
`
`Valencell requests that the Court find in its favor and against Apple, and that the
`
`Court grant Valencell the following relief:
`
`a.
`
`b.
`
`c.
`
`
`
`
`
`d.
`
`e.
`
`f.
`
`g.
`
`A judgment in favor of Valencell and against Apple on each of Valencell’s
`claims;
`
`
`A judgment that Apple has directly infringed the patents-in-suit, contributorily
`infringed the patents-in-suit, and/or induced the infringement of the patents-in-
`suit;
`
`
`A preliminary and permanent injunction preventing Apple and its officers,
`directors, agents, servants, employees, attorneys, licensees, successors, and
`assigns, and those in active concert or participation with any of them, from
`directly infringing, contributorily infringing, and inducing the infringement of
`the patents-in-suit;
`
`A judgment that Apple’s infringement of the patents-in-suit has been willful;
`
`A ruling that this case be found to be exceptional under 35 U.S.C. § 285, and a
`judgment awarding to Valencell its attorneys’ fees incurred in prosecuting this
`action;
`
`
`A judgment and order requiring Apple to pay Valencell damages under 35
`U.S.C. § 284, including supplemental damages for any continuing post-verdict
`infringement up until entry of the final judgment, with an accounting, as
`needed, and enhanced damages for willful infringement as provided by 35
`U.S.C. § 284.
`
`
`A judgment and order requiring Apple to pay Valencell the costs of this action
`(including all disbursements);
`
`
`
`
`
`13
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`

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`A judgment and order requiring Apple to pay Valencell pre-judgment and post-
`judgment interest on the damages awarded;
`
`
`A judgment and order requiring that in the event a permanent injunction
`preventing future acts of infringement is not granted, that Plaintiffs be awarded
`a compulsory ongoing licensing fee;
`
`A judgment and order requiring Apple to specifically perform its contractual
`obligations to Valencell;
`
`
`
`That this Court treble the damages of Valencell pursuant to § 75-16;
`
`h.
`
`i.
`
`
`
`j.
`
`k.
`
`l.
`
`m.
`
`That this Court award attorney’s fees to Valencell pursuant to § 75-16.1; and
`
`That Valencell be granted such other and further relief as the Court may deem
`just and proper under the circumstances.
`
`
`
`
`Dated: January 4, 2016
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`/s/ Lynne A. Borchers
`Lynne A. Borchers (N.C. Bar No. 32386)
`MYERS BIGEL SIBLEY & SAJOVEC, P.A.
`4140 Parklake Avenue, Suite 600
`Raleigh, North Carolina 27612
`919.854.1400 (telephone)
`919.854.1401 (facsimile)
`lborchers@myersbigel.com
`
`
`OF COUNSEL:
`
`Jeffrey R. Bragalone (Texas Bar No. 02855775)
`(notice of special appearance to be filed)
`Patrick J. Conroy (Texas Bar No. 24012448)
`(notice of special appearance to be filed)
`Jonathan H. Rastegar (Texas Bar No. 24064043)
`(notice of special appearance to be filed)
`BRAGALONE CONROY PC
`2200 Ross Avenue, Suite 4500W
`Dallas, Texas 75201
`214.785.6670 (telephone)
`214.785.6680 (facsimile)
`jbragalone@bcpc-law.com
`pconroy@bcpc-law.com
`jrastegar@bcpc-law.com
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`Attorneys for Plaintiff Valencell, Inc.
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`14
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on January 4, 2016, I electronically filed the foregoing with
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`the Clerk of Court for the United States District Court for the Eastern District of North Carolina
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`using the CM/ECF Filing System, which will send notification via electronic means to all
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`counsel of record.
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`This 4th day of January, 2016.
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`/s/ Lynne A. Borchers
`Lynne A. Borchers (NC Bar No. 32386)
`MYERS BIGEL SIBLEY & SAJOVEC, P.A.
`4140 Parklake Avenue, Suite 600
`Raleigh, North Carolina 27612
`919.854.1400 (telephone)
`919.854.1401 (facsimile)
`lborchers@myersbigel.com
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`Attorneys for Plaintiff Valencell, Inc.
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`15