USDC IN/ND case 3:15-cv-00063-PPS-MGG document 76 filed 10/13/16 page 1 of 8
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF INDIANA
`SOUTH BEND DIVISION
`
`FOUR MILE BAY LLC
`
`
`Plaintiff,
`
`v.
`
`
`
`
`
`
`ZIMMER BIOMET HOLDINGS, INC.
`
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`CAUSE NO. 3:15-cv-00063-PPS-MGG
`
`HON. PHILIP P. SIMON
`
`M.J. HON. MICHAEL G. GOTSCH, SR.
`
`JURY TRIAL DEMANDED
`
`
`AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff, Four Mile Bay LLC (“FMB”), by its undersigned attorneys, for its Complaint
`
`against Defendant Zimmer Biomet Holdings, Inc. (“Zimmer”), states as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is a patent-infringement action by FMB against Zimmer, a manufacturer and
`
`marketer of reconstructive orthopedic implants, including hip implants. As detailed below, FMB
`
`has been harmed by Zimmer’s unlawful use of FMB’s patents for commercial purposes.
`
`JURISDICTION AND VENUE
`
`2.
`
`This action arises under the patent laws of the United States, 35 U.S.C. §§ 101 et
`
`seq. This Court therefore has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
`
`1338(a).
`
`3.
`
`This Court may exercise personal jurisdiction over Zimmer. Zimmer’s principal
`
`place of business is located in Warsaw, Indiana. Zimmer conducts continuous and systematic
`
`business in Indiana and this District.
`
`4.
`
`Venue is proper under 28 U.S.C. §§ 1391(b)(1) and 1400(b).
`
`
`
`1
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`ZIMMER EXHIBIT 1013
`
`Page 1 of 8
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`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF INDIANA
`SOUTH BEND DIVISION
`
`FOUR MILE BAY LLC
`
`
`Plaintiff,
`
`v.
`
`
`
`
`
`
`ZIMMER BIOMET HOLDINGS, INC.
`
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`CAUSE NO. 3:15-cv-00063-PPS-MGG
`
`HON. PHILIP P. SIMON
`
`M.J. HON. MICHAEL G. GOTSCH, SR.
`
`JURY TRIAL DEMANDED
`
`
`AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff, Four Mile Bay LLC (“FMB”), by its undersigned attorneys, for its Complaint
`
`against Defendant Zimmer Biomet Holdings, Inc. (“Zimmer”), states as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is a patent-infringement action by FMB against Zimmer, a manufacturer and
`
`marketer of reconstructive orthopedic implants, including hip implants. As detailed below, FMB
`
`has been harmed by Zimmer’s unlawful use of FMB’s patents for commercial purposes.
`
`JURISDICTION AND VENUE
`
`2.
`
`This action arises under the patent laws of the United States, 35 U.S.C. §§ 101 et
`
`seq. This Court therefore has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
`
`1338(a).
`
`3.
`
`This Court may exercise personal jurisdiction over Zimmer. Zimmer’s principal
`
`place of business is located in Warsaw, Indiana. Zimmer conducts continuous and systematic
`
`business in Indiana and this District.
`
`4.
`
`Venue is proper under 28 U.S.C. §§ 1391(b)(1) and 1400(b).
`
`
`
`1
`
`ZIMMER EXHIBIT 1013
`
`Page 1 of 8
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`USDC IN/ND case 3:15-cv-00063-PPS-MGG document 76 filed 10/13/16 page 2 of 8
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`
`PARTIES
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`5.
`
`FMB is a limited liability company organized under the laws of Nevada. FMB’s
`
`principal place of business is located in Wadsworth, Ohio.
`
`6.
`
`Zimmer is a corporation organized under the laws of Delaware, with its principal
`
`place of business located in Warsaw, Indiana. Zimmer designs, develops, manufactures, and
`
`markets, among other things, hip implants.
`
`COUNT I
`(INFRINGEMENT OF THE ’582 PATENT)
`
`FMB incorporates paragraphs 1 through 6 herein by reference.
`
`FMB owns United States Patent No. 8,821,582 (the “’582 Patent”), entitled “HIP
`
`7.
`
`8.
`
`IMPLANT WITH POROUS BODY.” A true and correct copy of the ’582 Patent is attached hereto
`
`as Exhibit A.
`
`9.
`
`On September 2, 2014, the ’582 Patent issued for an invention in a method of
`
`machining, fabricating, and attaching components of a hip implant with porous body. FMB owned
`
`the ’582 Patent throughout the period of Zimmer’s infringing acts and still owns the ’582 Patent.
`
`10.
`
`The ’582 Patent is valid, enforceable, and was duly issued in full compliance with
`
`Title 35 of the United States Code.
`
`11.
`
`Zimmer has infringed and is still infringing the ’582 Patent, including at least claim
`
`1, by making, selling, using, offering to sell, and/or importing into the United States hip implants—
`
`such as the Trabecular Metal Primary Hip Prosthesis—that embody the patented invention.
`
`12.
`
`FMB has been damaged as a result of Zimmer’s infringing conduct described in
`
`this Count. Zimmer is, thus, liable to FMB in an amount that adequately compensates it for
`
`Zimmer’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.
`
`
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`2
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`Page 2 of 8
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`USDC IN/ND case 3:15-cv-00063-PPS-MGG document 76 filed 10/13/16 page 3 of 8
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`
`COUNT II
`(INFRINGEMENT OF THE ’642 PATENT)
`
`FMB incorporates paragraphs 1 through 6 herein by reference.
`
`FMB owns United States Patent No. 8,506,642 (the “’642 Patent”), entitled “HIP
`
`13.
`
`14.
`
`IMPLANT WITH POROUS BODY.” A true and correct copy of the ’642 Patent is attached hereto
`
`as Exhibit B.
`
`15.
`
`On August 13, 2013, the ’642 Patent issued for an invention of a hip implant with
`
`a porous body. FMB owned the ’642 Patent throughout the period of Zimmer’s infringing acts and
`
`still owns the ’642 Patent.
`
`16.
`
`The ’642 Patent is valid, enforceable, and was duly issued in full compliance with
`
`Title 35 of the United States Code.
`
`17.
`
`Zimmer has infringed and is still infringing the ’642 Patent, including at least claim
`
`1, by making, selling, using, offering to sell and/or importing into the United States hip implants—
`
`such as the Trabecular Metal Primary Hip Prosthesis—that embody the patented invention.
`
`18.
`
`FMB has been damaged as a result of Zimmer’s infringing conduct described in
`
`this Count. Zimmer is, thus, liable to FMB in an amount that adequately compensates it for
`
`Zimmer’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 THE ’612 PATENT)
`
`FMB incorporates paragraphs 1 through 6 herein by reference.
`
`FMB owns United States Patent No. 9,265,612 (the “’612 Patent”), entitled “HIP
`
`19.
`
`20.
`
`IMPLANT WITH POROUS BODY.” A true and correct copy of the ’612 Patent is attached hereto
`
`as Exhibit C.
`
`
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`3
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`Page 3 of 8
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`USDC IN/ND case 3:15-cv-00063-PPS-MGG document 76 filed 10/13/16 page 4 of 8
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`21.
`
`On February 23, 2016, the ’612 Patent issued for an invention of a hip implant with
`
`a porous body. FMB owned the ’612 Patent throughout the period of Zimmer’s infringing acts and
`
`still owns the ’612 Patent.
`
`22.
`
`The ’612 Patent is valid, enforceable, and was duly issued in full compliance with
`
`Title 35 of the United States Code.
`
`23.
`
`Zimmer has infringed and is still infringing the ’612 Patent, including at least claim
`
`1, by making, selling, using, offering to sell and/or importing into the United States hip implants—
`
`such as the Trabecular Metal Primary Hip Prosthesis—that embody the patented invention.
`
`24.
`
`FMB has been damaged as a result of Zimmer’s infringing conduct described in
`
`this Count. Zimmer is, thus, liable to FMB in an amount that adequately compensates it for
`
`Zimmer’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 THE ’080 PATENT)
`
`FMB incorporates paragraphs 1 through 6 herein by reference.
`
`FMB owns United States Patent No. 9,283,080 (the “’080 Patent”), entitled “HIP
`
`25.
`
`26.
`
`IMPLANT WITH POROUS BODY.” A true and correct copy of the ’080 Patent is attached hereto
`
`as Exhibit D.
`
`27.
`
`On March 15, 2016, the ’080 Patent issued for an invention of a hip implant with a
`
`porous body. FMB owned the ’080 Patent throughout the period of Zimmer’s infringing acts and
`
`still owns the ’080 Patent.
`
`28.
`
`The ’080 Patent is valid, enforceable, and was duly issued in full compliance with
`
`Title 35 of the United States Code.
`
`29.
`
`Zimmer has infringed and is still infringing the ’080 Patent, including at least claim
`
`
`
`4
`
`Page 4 of 8
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`USDC IN/ND case 3:15-cv-00063-PPS-MGG document 76 filed 10/13/16 page 5 of 8
`
`
`1, by making, selling, using, offering to sell and/or importing into the United States hip implants—
`
`such as the Trabecular Metal Primary Hip Prosthesis—that embody the patented invention.
`
`30.
`
`FMB has been damaged as a result of Zimmer’s infringing conduct described in
`
`this Count. Zimmer is, thus, liable to FMB in an amount that adequately compensates it for
`
`Zimmer’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
`(INFRINGEMENT OF THE ’093 PATENT)
`
`FMB incorporates paragraphs 1 through 6 herein by reference.
`
`FMB owns United States Patent No. 9,308,093 (the “’093 Patent”), entitled “HIP
`
`31.
`
`32.
`
`IMPLANT WITH POROUS BODY.” A true and correct copy of the ’093 Patent is attached hereto
`
`as Exhibit E.
`
`33.
`
`On April 12, 2016, the ’093 Patent issued for an invention of a hip implant with a
`
`porous body. FMB owned the ’093 Patent throughout the period of Zimmer’s infringing acts and
`
`still owns the ’093 Patent.
`
`34.
`
`The ’642 Patent is valid, enforceable, and was duly issued in full compliance with
`
`Title 35 of the United States Code.
`
`35.
`
`Zimmer has infringed and is still infringing the ’093 Patent, including at least claim
`
`1, by making, selling, using, offering to sell and/or importing into the United States hip implants—
`
`such as the Trabecular Metal Primary Hip Prosthesis—that embody the patented invention.
`
`36.
`
`FMB has been damaged as a result of Zimmer’s infringing conduct described in
`
`this Count. Zimmer is, thus, liable to FMB in an amount that adequately compensates it for
`
`Zimmer’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.
`
`
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`5
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`Page 5 of 8
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`USDC IN/ND case 3:15-cv-00063-PPS-MGG document 76 filed 10/13/16 page 6 of 8
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`JURY DEMAND
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`Pursuant to Federal Rule of Civil Procedure 38(b), FMB demands a trial by jury of all
`
`claims in the Complaint so triable.
`
`REQUEST FOR RELIEF
`
`WHEREFORE, FMB prays for the following relief against Zimmer:
`
`(A)
`
`Judgment that Zimmer has directly infringed claims of U.S. Patent No. 8,506,642;
`
`U.S. Patent No. 8,821,582; U.S. Patent No. 9,265,612; U.S. Patent No. 9,283,080; U.S. Patent No.
`
`9,308,093;
`
`(B)
`
`Judgment that Zimmer account for and pay FMB all damages to and costs incurred
`
`by FMB because of Zimmer’s infringing activities and other conduct complained of herein;
`
`(C)
`
`For pre-judgment interest and post-judgment interest, at the maximum rate allowed
`
`by law, on the damages caused by Zimmer’s infringing activities and other conduct complained of
`
`herein; and
`
`(D)
`
`That FMB be granted such other and further relief as the Court may deem just and
`
`
`
`proper.
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`6
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`Page 6 of 8
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`USDC IN/ND case 3:15-cv-00063-PPS-MGG document 76 filed 10/13/16 page 7 of 8
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`Dated: October 13, 2016
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`Respectfully submitted,
`
`
`/s/ Jeffrey A. Andrews
`Jeffrey A. Andrews (pro hac vice)
`Texas Bar No. 24050227
`SUTTON McAUGHAN DEAVER PLLC
`Three Riverway, Suite 900
`Houston, TX 77056
`T: (713) 800-5700
`F: (713) 800-5699
`jandrews@smd-iplaw.com
`
`Clint A. Zalas
`LEE GROVE & ZALAS
`205 West Jefferson Blvd., Suite 502
`South Bend, IN 46601
`T: (574) 232-5923
`F: (574) 232-5942
`cazalas@lgzlegal.com
`
`Counsel for Plaintiff
`FOUR MILE BAY LLC
`
`
`
`
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`7
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`Page 7 of 8
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`USDC IN/ND case 3:15-cv-00063-PPS-MGG document 76 filed 10/13/16 page 8 of 8
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`CERTIFICATE OF SERVICE
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`I hereby certify that on October 13, 2016, I caused the foregoing document to be filed
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`electronically with the Clerk of the Court using the CM/ECF system, which sent notification of
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`such filing to all counsel of record.
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`/s/ Jeffrey A. Andrews
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`8
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`Page 8 of 8
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