BUCHALTER
`J. Rick Taché (CA Bar No. 195100)
`(rtache@buchalter.com)
`Kari L. Barnes (CA Bar No. 253640)
`(kbarnes@buchalter.com)
`Roger L. Scott (CA Bar No. 247165)
`(rscott@buchalter.com)
`18400 Von Karman Avenue, Suite 800
`Irvine, California 92612
`Telephone: (949) 760-1121
`Facsimile: (949) 720-0182
`
`Attorneys for Plaintiff
`Wave Neuroscience, Inc.
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`WAVE NEUROSCIENCE, INC., a
`Delaware corporation,
`
`Plaintiff,
`
`vs.
`
`PEAKLOGIC, INC., a Delaware
`corporation; and KEVIN T. MURPHY,
`M.D., a Professional Corporation, doing
`business as MINDSET
`
`Case No. 3:21-cv-01330-LAB-AGS
`
`FIRST AMENDED COMPLAINT
`FOR:
`
`1. INFRINGEMENT OF UNITED
`STATES PATENT NO. 8,480,554
`2. INFRINGEMENT OF UNITED
`STATES PATENT NO. 9,272,159
`3. INFRINGEMENT OF UNITED
`STATES PATENT NO. 9,446,259
`
`Defendants.
`
`DEMAND FOR JURY TRIAL
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`BUCHALTER
`A P R O F E S S I O N A L C O R P O R A T I O N
`I R V I N E
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`BN 46849473v1
`FIRST AMENDED COMPLAINT
`
`1
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`

`

`
`
`Plaintiff Wave Neuroscience, Inc. (“Wave” or “Plaintiff”) complains and
`
`alleges as follows against Defendants PeakLogic, Inc. (“PeakLogic”), Kevin T.
`
`Murphy, M.D., a Professional Corporation, doing business as MindSet (“MindSet”)
`
`(collectively “Defendants”):
`
`NATURE OF ACTION
`
`1.
`
`This is an action for patent infringement arising under the patent laws
`
`of the United States, 35 U.S.C. § 1 et seq. Wave seeks damages, attorney’s fees,
`
`costs, pre-judgment and post-judgment interest, and preliminary and permanent
`
`injunctive relief.
`
`THE PARTIES
`
`2. Wave Neuroscience is a Delaware corporation with a principal place of
`
`business at 1601 Dove Street, Suite 205, Newport Beach, California 92660.
`
`3. Wave is informed and believes that PeakLogicis a Delaware
`
`corporation with a principal place of business at 16918 Dove Canyon Road, Suite
`
`102, San Diego, CA 92127.
`
`4. Wave is informed and believes that MindSet is a California
`
`Professional Corporation with a principal place of business at 12625 High Bluff
`
`Drive, Suite 318, San Diego, CA 92130.
`
`JURISDICTION AND VENUE
`
`5.
`
`This action arises under the patent laws of the United States, 35 U.S.C.
`
`§ 1, et seq. This Court has subject matter jurisdiction over this case pursuant to 28
`
`U.S.C. §§ 1331 and 1338(a).
`
`6.
`
`This Court has personal jurisdiction over PeakLogic because: (a)
`
`PeakLogic’s principal place of business is in this District; (b) PeakLogic transacts
`
`business in and maintains continuous and systematic contacts with this District and
`
`the State of California; and (c) PeakLogic has committed acts of patent
`
`infringement complained of herein and/or contributed to or induced acts of patent
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`BUCHALTER
`A P R O F E S S I O N A L C O R P O R A T I O N
`I R V I N E
`
`BN 46849473v1
`FIRST AMENDED COMPLAINT
`
`
`
`1
`
`
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`

`

`
`
`infringement by others in this District and elsewhere in California and the United
`
`States.
`
`7.
`
`This Court has personal jurisdiction over MindSet because: (a)
`
`MindSet’s principal place of business is in this District; (b) MindSet transacts
`
`business in and maintains continuous and systematic contacts with this District and
`
`the State of California; and (c) MindSet has committed acts of patent infringement
`
`complained of herein and/or contributed to or induced acts of patent infringement
`
`by others in this District and elsewhere in California and the United States.
`
`8.
`
`Venue is proper in the United States District Court for the Southern
`
`District of California under 28 U.S.C. §§ 1391(b), 1391(c), and 1400(b). Both
`
`PeakLogic and MindSet have a principal place of business in San Diego, California
`
`and both have committed acts of patent infringement complained of herein within
`
`this District.
`
`9.
`
`Upon information and belief, certain products manufactured by or for
`
`PeakLogic and/or infringing services have been and/or are currently being offered
`
`for sale by PeakLogic operating out of its principal place of business in San Diego,
`
`CA.
`
`10. Upon information and belief, certain products manufactured by or for
`
`MindSet and/or infringing services have been and/or are currently being offered for
`
`sale by MindSet operating out of its principal place of business in San Diego, CA.
`
`FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF
`
`Wave Neuroscience’s Business
`
`11. Wave is a recognized global-leader in developing personalized, non-
`
`invasive technology aimed at addressing neurological disorders and enhancing
`
`cognitive brain function through Transcranial Magnetic Stimulation (“TMS”).
`
`12. Wave’s technological advancements in the areas of testing and
`
`treatment of neurological disorders and in enhancing cognitive brain function using
`
`TMS are evidenced by its extensive patent and trademark portfolio and its
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`BUCHALTER
`A P R O F E S S I O N A L C O R P O R A T I O N
`I R V I N E
`
`
`FIRST AMENDED COMPLAINT
`
`
`
`2
`
`
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`

`

`
`
`collection of proprietary historical data of patient electroencephalogram (“EEG”)
`
`results and associated medical conditions.
`
`13. Wave’s patented technology involves analyzing a patient’s EEG
`
`results to derive insight into each patient’s brain health. Wave combines its
`
`proprietary algorithms with years of proprietary historical data to create an
`
`actionable cognitive treatment report. Doctors and clinics use Wave’s patented
`
`equipment and treatment protocols to treat patients to achieve long-lasting cognitive
`
`health.
`
`14. NeoSync, Inc. (“NeoSync”) was founded in 2008, as a clinical stage
`
`company. NeoSync helped pioneer personalized TMS for the treatment of major
`
`depressive disorder and other diseases of the central nervous system. Medical
`
`professionals acknowledged that the synchronized transcranial magnetic stimulation
`
`using EEG was a “new neuromodulation technique”, and confirmed the findings
`using NeoSync’s EEG Synchronized TMS (“N.E.S.T.”) device.1
`
`15. On February 13, 2020, Wave acquired certain assets from NeoSync,
`
`Inc. (“NeoSync”) including, but not limited to, the patents at issue in this case,
`
`which enhanced Wave’s patent and trademark portfolio, along with its collection of
`
`proprietary historical data of patient EEG results and associated medical conditions.
`
`16. Wave is currently conducting an FDA-grade clinical study, whereby
`
`Phase I was funded by the U.S. Department of Defense to validate the safety and
`
`medical efficacy of its proprietary technology for the treatment of persistent post-
`
`concussion symptoms and persistent post-concussive syndrome from traumatic
`
`brain injury in collaboration with U.S. Special Operations Command and,
`
`subsequently Phase II with funding from the Texas A&M Institute for Bioscience
`
`and Technology.
`
`
`1 Cook I.A., Wilson A.C., Corlier J., Leuchter A.F. 2019. Brain Activity and
`Clinical Outcomes in Adults With Depression Treated With Synchronized
`Transcranial Magnetic Stimulation: An Exploratory Study. Neuromodulation 2019;
`22: 894–897 attached hereto as Exhibit 7.
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`BUCHALTER
`A P R O F E S S I O N A L C O R P O R A T I O N
`I R V I N E
`
`
`FIRST AMENDED COMPLAINT
`
`
`
`3
`
`
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`

`

`
`
`17. Wave’s patented technology is being used by or in connection with its
`
`numerous strategic partners including, but not limited to, the U.S. Department of
`
`Defense, Department of Veterans Affairs, Special Operations Care – Fund (SOC-
`
`F), Tomahawk Charitable Solutions, Texas A&M Institute for Bioscience and
`
`Technology, Ohio State University – Physical Medicine and Rehabilitation, Kerlan-
`
`Jobe Orthopedic Sports Medicine, Cedar-Sinai, University of Southern California
`
`Center for Neurorestoration, Enterhealth Ranch - Substance Abuse Treatment
`
`Center, and Warriors Heart – Addiction, Chemical Dependency & PTSD Treatment
`
`Center for Active Military, Veterans, and First Responders.
`
`18. Wave’s products, and services, and its successful treatments have been
`
`featured on over 50 podcasts including The Broken Brain, Finding Center, The Joe
`
`Rogan Experience, Bulletproof Veteran, Military Veteran Dad, Vets First, and
`
`many more.
`
`19. With the assistance of Veteran Service Organizations and various non-
`
`profit organizations, Wave has underwritten more than one million U.S. Dollars in
`
`care for Veterans in need.
`
`The Asserted Patents
`
`20. Mental disorders generate serious problems for the affected people,
`
`their families, and society. Historically, physicians have treated these disorders
`
`with a variety of medications, many of which have significant negative side effects.
`
`Repetitive Transcranial Magnetic Stimulation (rTMS) is a non-pharmaceutical
`
`procedure utilizing an electromagnet placed on the scalp that generates a series of
`
`magnetic field pulses roughly the strength of an MRI scan.
`
`21. Patients receiving treatment for persistent post-concussion symptoms
`due to Traumatic Brain Injury2 and depression symptoms (PHQ9) using Wave’s
`
`proprietary technology have demonstrated promising results with robust academic
`
`
`2 Based on Rivermead Post-Concussion Questionnaire 16 (“RPQ16”).
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`BUCHALTER
`A P R O F E S S I O N A L C O R P O R A T I O N
`I R V I N E
`
`
`FIRST AMENDED COMPLAINT
`
`
`
`4
`
`
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`

`

`
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`rigor sufficient to warrant prestigious grant and research funding in excess of $15
`
`million U.S. dollars.
`
`22. Wave has developed or acquired numerous patents that implement its
`
`rTMS treatments. The patents cover specific method of treatment for specific
`
`patients using a specific administration of frequencies at specific conditions to
`
`achieve a specific outcome.
`
`23. On July 9, 2013, the U.S. Patent and Trademark Office duly and
`
`legally issued United States Patent No. 8,480,554, entitled “SYSTEMS AND
`
`METHODS FOR DEPRESSION TREATMENT USING NEURO-EEG
`
`SYNCHRONIZATION THERAPY” (the “’554 Patent”). A true and correct copy
`
`of the ’554 Patent is attached hereto as Exhibit 1.
`
`24. The ’554 Patent provides methods and devices to treat depression
`
`using magnetic fields to gently “tune” the brain and affect symptoms of depression
`
`and by applying the magnetic fields close to a head of the subject.
`
`25. On March 1, 2016, the U.S. Patent and Trademark Office duly and
`
`legally issued United States Patent No. 9,272,159, entitled “SYSTEMS AND
`
`METHODS FOR NEURO EEG SYNCHRONIZATION THERAPY” (the “’159
`
`Patent”). A true and correct copy of the ’159 Patent is attached hereto as Exhibit 2.
`
`26. The ’159 Patent provides a device for modulating the electrical activity
`
`of a brain in a targeted manner by using a magnetic field, having a frequency below
`
`a threshold of exciting brain cells in the treatment area. The magnetic field is based
`
`on the intrinsic frequency of the subject or the Q-factor of the intrinsic frequency of
`
`the subject.
`
`27. On September 20, 2016, the U.S. Patent and Trademark Office duly
`
`and legally issued United States Patent No. 9,446,259, entitled “SYSTEMS AND
`
`METHODS FOR NEURO-EEG SYNCHRONIZATION THERAPY” (the “’259
`
`Patent”). A true and correct copy of the ’259 Patent is attached hereto as Exhibit 3.
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`A P R O F E S S I O N A L C O R P O R A T I O N
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`FIRST AMENDED COMPLAINT
`
`
`
`5
`
`
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`

`

`
`
`28. The ’259 Patent provides a method for modulating the electrical
`
`activity of a brain in a targeted manner by using a magnetic field. The magnetic
`
`field is based on the intrinsic frequency of the subject or the Q-factor of the intrinsic
`
`frequency of the subject.
`
`29. The ’554 Patent, the ’159 Patent, and the ’259 Patent may collectively
`
`be referred to herein as the “Asserted Patents.”
`
`30. Wave’s products, and services are acknowledged as being
`
`breakthrough treatments, new, and novel for improving brain health and clinical
`
`results of many disorders. The tremendous success of Wave’s treatments, including
`
`its patented devices and methods, confirms that the inventions claimed in the
`
`Asserted Patents were neither well-understood, routine, nor conventional at the time
`
`of the Asserted Patent’s filings. To the contrary, the claimed devices, systems, and
`
`methods have solved technical problems that provide unique solutions to patient
`
`brain health and treating specific conditions. Some exemplary publications
`
`illustrating Wave’s commercial success and unique solutions to brain health,
`
`include:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`Business Wire3
`Infinite Hero Foundation4
`Football Morning In America5
`Autism Parenting6
`Defense One7
`
`
`3 https://www.businesswire.com/news/home/20190904005867/en/Special-
`Operations-Care-Fund-SOC-F-and-Tomahawk-Charitable-Solutions-to-Support-
`Leader-in-Neurotherapeutics-to-Provide-Breakthrough-Treatment-Technology-for-
`Special-Operations-Veterans attached hereto as Exhibit 8.
`4 https://www.prnewswire.com/news-releases/infinite-hero-foundation-announces-
`2014-grants-281743191.html attached hereto as Exhibit 9.
`5 http://profootballtalk.nbcsports.com/2019/06/10/fmia-guest-nick-hardwick-post-
`nfl-brain-health/ attached hereto as Exhibit 10.
`6 https://www.autismparentingmagazine.com/autism-mert-therapy/ attached hereto
`as Exhibit 11.
`7 https://www.defenseone.com/technology/2019/01/zap-how-electric -therapy-
`curing-navy-seals-ptsd-and-could-remake-brain-science/154301/ attached hereto as
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`A P R O F E S S I O N A L C O R P O R A T I O N
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`
`FIRST AMENDED COMPLAINT
`
`
`
`6
`
`
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`

`

`
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`f.
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`Local108
`
`31. The success of Wave’s patented technology is also reflected in the fact
`
`that Wave not only operates clinics internationally in Panama and Australia, but
`
`also has more than thirty licensed clinics performing treatments daily, operating in
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`California, Florida, Colorado, Maryland, Nevada, New York, Oklahoma, Texas,
`
`and Virginia.
`
`INFRINGING CONDUCT
`
`PeakLogic and MindSet Infringe the Asserted Patents
`
`32. The tremendous popularity and commercial success of Wave’s
`
`patented technology has spawned imitators, including PeakLogic and MindSet,
`
`which, upon information and belief, have and continue to copy Waves products and
`
`services. Upon information and belief, PeakLogic’s and MindSet’s knock-off
`
`businesses each infringe on the Asserted Patents.
`
`33. According to the PeakLogic website (https://www.prtms.com/about-
`
`peaklogic/dr-murphy-bio/), Dr. Kevin T. Murphy founded PeakLogic, a medical
`
`software company and MindSet Treatment Center, both based in San Diego.
`
`According to this website, PeakLogic created the proprietary, personalized
`approach to rTMS treatment termed PrTMS®, and that MindSet uses PrTMS®9.
`
`34. According to the MindSet website
`
`(https://www.mindsetsd.com/contents/faqs), Dr. Murphy is the owner of MindSet,
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`and also the Chief Executive Officer of and a shareholder in PeakLogic. According
`
`to this website, PeakLogic subcontracts MindSet to provide doctor-to-doctor
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`medical consulting services to other physicians who would like to use PrTMS.
`
`
`Exhibit 12.
`8 https://www.local10.com/health/2020/01/30/brain-treatment-center-offers-novel-
`approach-to-treat-autism/ attached hereto as Exhibit 13.
`9 According to the United States Patent and Trademark Office database,
`(https://tmsearch.uspto.gov), PeakLogic, Inc. owns the trademark registration for
`PRTMS, registration no. 5,921,366.
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`BUCHALTER
`A P R O F E S S I O N A L C O R P O R A T I O N
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`FIRST AMENDED COMPLAINT
`
`
`
`7
`
`
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`

`

`
`
`35. According to the MindSet website
`
`(https://www.mindsetsd.com/contents/faqs), PrTMS is a proprietary approach to
`
`treatment that is personalized. The description contained on the MindSet website
`
`(https://www.mindsetsd.com/about) explains that the team at MindSet implements
`
`multiple steps to ensure each patient’s PrTMS® treatment is fully customized.
`Specifically, the PrTMS® treatment uses PeakInputTM to receive EEG and Patient
`
`neurocognitive data in order to generate the PrTMS Therapy. Upon information
`
`and belief, the description appearing on the MindSet website confirms that its
`
`products and services directly infringe the Asserted Patents.
`The PeakLogic website10 similarly explains that its treatments, which are used by
`
`MindSet, treatment plan is designed to be tailored specifically to that patient’s
`
`unique brain mapping and uses PeakInput™ to allow the PrTMS provider to
`
`monitor patient response to treatment and optimize therapy. Upon information and
`
`belief, the description appearing on the PeakLogic website confirms that its
`
`products and services directly infringe the Asserted Patents.
`
`36. The ’554 Patent describes, among other things, a method of treating
`
`depression in a subject comprising adjusting output of a magnetic field based on the
`
`subject’s intrinsic frequency, applying the magnetic field close to the patient’s head,
`
`and moving the intrinsic frequency toward a pre-selected intrinsic frequency within
`
`the specified EEG band. Exhibit 1, ’554 Patent, Claim 1.
`
`37. Disclosures made on Defendants’ website showing the infringement of
`
`each element of Claims 1, 4, 7, 8, and 11 of the ’554 Patent is presented in Exhibit
`
`4 hereto.
`
`38. The ’159 Patent describes, among other things, a device comprising a
`
`non-transitory computer readable medium comprising information comprising an
`
`intrinsic frequency of the subject in a specified EEG band received by the device,
`
`
`10 https://www.prtms.com/how-it-works/ attached hereto as Exhibit 14.
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`BUCHALTER
`A P R O F E S S I O N A L C O R P O R A T I O N
`I R V I N E
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`
`FIRST AMENDED COMPLAINT
`
`
`
`8
`
`
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`

`

`
`
`and a subunit comprising circuitry that is configured generate a varying magnetic
`
`field from about 1 Hz to about 100 Hz in the specified EEG band. Exhibit 2, ’159
`
`Patent, Claim 1.
`
`39. Disclosures made on Defendants’ website showing the infringement of
`
`each element of Claim 1 of the ’159 Patent is presented in Exhibit 5 attached
`
`hereto.
`
`40. The ’259 Patent describes, among other things, a method of improving
`
`at least one of neuropathic pain, neurological disorder, a symptom of brain damage,
`
`and a brain dysfunction in the subject. The method comprises generating output of
`
`a magnetic field based on an intrinsic frequencies of a specified EEG band of a
`
`subject, a Q-factor of the intrinsic frequency within the specified EEG band of the
`
`subject, or both by generating the magnetic field, and applying the output of the
`
`magnetic field to a head of the subject. Exhibit 3, ’259 Patent, Claim 1.
`
`41. Disclosures made on Defendants’ website showing the infringement of
`
`each element of Claim 1 of the ’259 Patent is presented in Exhibit 6 attached
`
`hereto.
`
`COUNT I
`
`INFRINGEMENT OF UNITED STATES PATENT NO. 8,480,554
`
`42. Wave incorporates the allegations of paragraphs 1-41 as if set forth
`
`herein.
`
`43. On July 9, 2013, the U.S. Patent and Trademark Office duly and
`
`legally issued the ’554 Patent.
`
`44. At all times relevant hereto, Wave or, its predecessor-in-interest,
`
`NeoSync has been the lawful owner of right, title, and interest in and to the ’554
`
`Patent, including the right to sue for and collect past damages.
`
`45. The ’554 Patent is valid and enforceable.
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`BUCHALTER
`A P R O F E S S I O N A L C O R P O R A T I O N
`I R V I N E
`
`
`FIRST AMENDED COMPLAINT
`
`
`
`9
`
`
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`

`

`
`
`46. PeakLogic and MindSet use, manufacture, import, distribute, offer for
`
`sale, and/or sell products and services that incorporate and use the technology
`
`covered by the ’554 Patent.
`
`47. As demonstrated by the claim chart, attached hereto as Exhibit 4,
`
`PeakLogic and MindSet have and are directly infringing under 35 U.S.C. § 271,
`
`literally or under the doctrine of equivalents, at least Claims 1, 4, 7, 9, and 11 of the
`
`’554 Patent by using, manufacturing, importing, offering for sale, and/or selling
`
`products and/or treatments to patients that incorporate the technology claimed in the
`
`’554 Patent.
`
`48. As demonstrated by the claim chart, attached hereto as Exhibit 4,
`
`PeakLogic and MindSet have also been and continue to induce their customers to
`
`directly infringe at least Claims 1, 4, 7, 9, and 11 of the ’554 Patent by intentionally
`
`promoting, aiding, and instructing customers to purchase and use the products
`
`and/or treatments that incorporate the technology claimed in the ’554 Patent.
`
`49. PeakLogic and MindSet knew or should have known that the use of
`
`the products and/or treatments that incorporate the technology claimed in the ’554
`
`Patent by their clinicians and their clients directly infringes at least Claims 1, 4, 7,
`
`9, and 11 of the ’554 Patent.
`
`50. As further demonstrated in the claim chart, attached hereto as Exhibit
`
`4, PeakLogic and MindSet have also contributed and continue to contribute to
`
`infringement because PeakLogic and MindSet knew or should have known that the
`
`use of the PeakLogic and MindSet products and treatments by their clinicians and
`
`their clients directly infringes at least Claims 1, 4, 7, 9, and 11 of the ’554 Patent.
`
`COUNT II
`
`INFRINGEMENT OF UNITED STATES PATENT NO. 9,272,159
`
`51. Wave incorporates the allegations of paragraphs 1-41 as if set forth
`
`herein.
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`BUCHALTER
`A P R O F E S S I O N A L C O R P O R A T I O N
`I R V I N E
`
`
`FIRST AMENDED COMPLAINT
`
`
`
`10
`
`
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`

`

`
`
`52. On March 1, 2016, the U.S. Patent and Trademark Office duly and
`
`legally issued the ’159 Patent.
`
`53. At all times relevant hereto, Wave or, its predecessor-in-interest,
`
`NeoSync has been the lawful owner of right, title, and interest in and to the ’159
`
`Patent, including the right to sue for and collect past damages.
`
`54. The ’159 Patent is valid and enforceable.
`
`55. Wave uses, manufactures, imports, distributes, offers for sale, and/or
`
`sells products and services that incorporate and use the technology covered by the
`
`’159 Patent.
`
`56. As demonstrated by the claim chart, attached hereto as Exhibit 5,
`
`PeakLogic and MindSet have been and are directly infringing under 35 U.S.C. §
`
`271, literally or under the doctrine of equivalents, at least Claim 1 of the ’159
`
`Patent by using, manufacturing, importing, offering for sale, and/or selling products
`
`and/or treatments to patients that incorporate the technology claimed in the ’159
`
`Patent.
`
`57. As demonstrated by the claim chart, attached hereto as Exhibit 5,
`
`PeakLogic and MindSet have also, and continue, to induce their customers to
`
`directly infringe at least Claim 1 of the ’159 Patent by intentionally promoting,
`
`aiding, and instructing customers to purchase and use the products and/or
`
`treatments that incorporate the technology claimed in the ’159 Patent.
`
`58. PeakLogic and MindSet knew or should have known that the use of
`
`the products and/or treatments that incorporate the technology claimed in the ’159
`
`Patent by their clinicians and their clients directly infringes at least Claim 1 of the
`
`’159 Patent.
`
`59. As further demonstrated in the claim chart, attached hereto as Exhibit
`
`5, PeakLogic and MindSet have also contributed, and continue to contribute, to
`
`infringement because PeakLogic and MindSet knew or should have known that the
`
`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`
`BUCHALTER
`A P R O F E S S I O N A L C O R P O R A T I O N
`I R V I N E
`
`
`FIRST AMENDED COMPLAINT
`
`
`
`11
`
`
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`

`

`
`
`use of the PeakLogic and MindSet products and treatments by their clinicians and
`
`their clients directly infringes at least Claim 1 of the ’159 Patent.
`
`COUNT III
`
`INFRINGEMENT OF UNITED STATES PATENT NO. 8,480,554
`
`60. Wave incorporates the allegations of paragraphs 1-41 as if set forth
`
`herein.
`
`61. On September 20, 2016, the U.S. Patent and Trademark Office duly
`
`and legally issued the ’259 Patent.
`
`62. At all times relevant hereto, Wave or, its predecessor-in-interest,
`
`NeoSync has been the lawful owner of right, title, and interest in and to the ’259
`
`Patent, including the right to sue for and collect past damages.
`
`63. The ’259 Patent is valid and enforceable.
`
`64. Wave uses, manufactures, imports, distributes, offers for sale, and/or
`
`sells products and services that incorporate and use the technology covered by the
`
`’259 Patent.
`
`65. As demonstrated by the claim chart, attached hereto as Exhibit 4,
`
`PeakLogic and MindSet have been and are directly infringing under 35 U.S.C. §
`
`271, literally or under the doctrine of equivalents, at least Claim 1 of the ’259
`
`Patent by using, manufacturing, importing, offering for sale, and/or selling products
`
`and/or treatments to patients that incorporate the technology claimed in the ’259
`
`Patent.
`
`66. As demonstrated by the claim chart, attached hereto as Exhibit 6,
`
`PeakLogic and MindSet have also, and continue, to induce their customers to
`
`directly infringe at least Claim 1 of the ’259 Patent by intentionally promoting,
`
`aiding, and instructing customers to purchase and use the products and/or
`
`treatments that incorporate the technology claimed in the ’259 Patent.
`
`67. PeakLogic and MindSet knew or should have known that the use of
`
`the products and/or treatments that incorporate the technology claimed in the ’259
`
`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`28
`
`BUCHALTER
`A P R O F E S S I O N A L C O R P O R A T I O N
`I R V I N E
`
`
`FIRST AMENDED COMPLAINT
`
`
`
`12
`
`
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`

`

`
`
`Patent by their clinicians and their clients directly infringes at least Claim 1 of the
`
`’259 Patent.
`
`68. As further demonstrated in the claim chart, attached hereto as Exhibit
`
`6, PeakLogic and MindSet have also contributed, and continue to contribute, to
`
`infringement because PeakLogic and MindSet knew or should have known that the
`
`use of the PeakLogic and MindSet products and treatments by their clinicians and
`
`their clients directly infringes at least Claim 1 of the ’259 Patent.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Wave prays for relief against PeakLogic and MindSet as
`
`follows:
`
`1.
`
`A judgment that PeakLogic and MindSet have infringed and are
`
`infringing each of the Asserted Patents;
`
`2.
`
`A judgment that PeakLogic and MindSet have contributed to and
`
`induced infringement of each of the Asserted Patents, and are actively contributing
`
`to and inducing infringement of each of the Asserted Patents;
`
`3.
`
`An award of damages adequate to compensate Plaintiff for the
`
`infringement that has occurred, under 35 U.S.C. §§ 284 or 289, including with pre-
`
`judgment and post-judgment interest;
`
`4.
`
`An order requiring PeakLogic and MindSet to account for and pay to
`
`Plaintiff any and all profits made by them from sales of their infringing medical
`
`treatments under 35 U.S.C. § 289;
`
`5.
`
`An award of treble damages for PeakLogic and MindSet’s willful
`
`infringement of the Asserted Patents, pursuant to 35 U.S.C. § 284;
`
`6.
`
`An accounting and/or supplemental damages for all damages occurring
`
`after any discovery cutoff and through the Court’s decision regarding imposition of
`
`a compulsory ongoing royalty;
`
`7.
`
`An order under 35 U.S.C. § 283 permanently enjoining PeakLogic and
`
`MindSet from continuing to make, use, sell, and/or offer to sell the products and
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`28
`
`BUCHALTER
`A P R O F E S S I O N A L C O R P O R A T I O N
`I R V I N E
`
`
`FIRST AMENDED COMPLAINT
`
`
`
`13
`
`
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`

`

`
`
`services accused of infringing the Asserted Patents and from further inducing or
`
`contributing to the infringement of the Asserted Patents;
`
`8.
`
`An award of attorneys’ fees, expenses and costs based on this being an
`
`exceptional case under 35 U.S.C. § 285, including prejudgment interest on such
`
`fees, expenses and costs;
`
`9.
`
`Costs and expenses in this action;
`
`10. Such other further relief as the Court deems just and proper.
`
`DEMAND FOR JURY TRIAL
`
`Wave hereby demands a trial by jury as to all issues triable by jury.
`
`
`
`DATED: September 8, 2021
`
`BUCHALTER
`
`A Professional Corporation
`
`By: /s/ J. Rick Taché________________
`J. Rick Taché
`Kari L. Barnes
`Roger L. Scott
`Attorneys for Plaintiff
`Wave Neuroscience, Inc.
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`28
`
`BUCHALTER
`A P R O F E S S I O N A L C O R P O R A T I O N
`I R V I N E
`
`
`FIRST AMENDED COMPLAINT
`
`
`
`14
`
`
`
`PeakLogic, Inc. Ex. 1011
`PeakLogic, Inc. v. Wave Neuroscience, Inc., Case No. TBD
`
`