CIVIL COVER SHEET
JS 44 (Rev. 09/11)
as pnvided
The JS 44 civil coversheet and Uie inforrrntion contained herein neither replace nor suPple~rent the filing and service of pleadngs or other papers as required by law, except of
by local rules of court. This form,approved by the Judicial Conference of the United States inSeptember 1974, is required for the use ofthe Clerk of Court for the purpose initiating
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DEFENDANTS
VIREO SYSTEMS, INC. and BOARD OF REGENTS OF THE
UNIVERSITY OF NEBRASKA
I. (a) PLAINTIFFS
COMPLETE NUTRITION HOLDINGS, INC.
(b) County of Residence of First Listed Plaintiff
County of Residence of First Listed Defendant
Do~lg~as County Nebraska
NOTE:
Attorneys plKnownJ
~I~~VS~''~,~N~
C,Pd~5~s'~ourt~iep~venuebel~orth
N~~1 &
Nashville, TN 37219(615)244-1713
II. BASIS OF JURISDICTION
O I
(Place qn "X"in One Box Only)
~d 3 Federal Question
(U.S Gorernment Not a Party)
U.S. Govertunent
Plaintiff
O 4 Diversity
pndicare Citizenship ojParrie.r in Item I/f)
O 2 U.S. Government
Defendant
iV_ NAT1iRF.fIF.CiTiT mi,.,~,,,,~~~°;.,n~,au„Yrn,n~i
TORI'.S
CONTRACT'
PERSONAL INJURY
PERSONAL INJURY
O I IO Insurance
O 365 Personal Injury O 310 Airplane
O 120 Marine
Product Liability
O 315 Airplane Product
O 130 Miller Act
O 367 Health Caze/
Liability
D 140 Negotiable Instrument
Pharmaceutical
O I50 Recovery of Overpayment O 320 Assault, Libel &
Personal Injury
Slander
& Enforcement ofJudgment
Product Liability
O 330 Federal Employers'
O 151 Medicare Act
O 368 Asbestos Personal
Liability
O 152 Recovery of Defaulted
Injury Product
O 340 Marine
Student Loans
Liability
O 345 Marine Product
(Excl. Vetera~~s)
PERSONAL PROPERTI'
Liability
O 153 Recovery of Overpayment
O 370 Other Fraud
O 350 Motor Vehicle
of Veteran's BeneSts
O 371 Truth in Lending
O 355 Motor Vehicle
O 160 Stockholders' Suits
O 380 Other Personal
Product Liability
O 190 Other Contract
Property Damage
O 195 Contract Product Liability O 360 Other Personal
O 385 Property Damage
Injury
O 196 Franchise
Product Liability
D 362 Personal Injury Med. Mal ractice
PRISONER PETITIONS
CIVIL RIGHTS
REAL PROPERTY
O 510 Motions to Vacate
O 440 Oilier Civil Rights
O 210 Land Condemnation
Sentence
O 441 Voting
O 220 Forecloswe
Habeas Corpus:
O 442 Employment
O 230 Rent Lease & Ejectrnent
O 530 Creneral
O 443 Housing/
O 240 Torts to Land
O 535 Death Penalty
Accommodations
O 245 Tort Product Liability
O 445 Amer. w/Disabili[ies - O 540 Mandamus &Other
O 290 All Other Real Property
O 550 Civil Rights
Employment
O 446 Amer. w/Disabili[ies - O 555 Prison Condition
O 560 Civil Detainee Other
Conditions of
O 448 Education
Confinement
V.
[2[ 1
ORIGIN
Original
Proceeding
Davidson County TN
(/N U.S. PLA/NT1FF Ci4SES ONLY)
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACE OF LAND INVOLVED.
(EXCEPTINU.S PLA/NTlFFCASES)
CITIZENSHIP ON' YRINCIYAL YAlt7~1L~'S (Placean °X"inOneBaxjorPlaint~
(For Diversity Cases Only)
PTF
D 1
Citizen ofThis State
DEF
O I
and One Boxjor Dejemlan~)
DEF
i'TF
O 4 O4
Incorporated or Principal Place
of Business In This State
Citizen of Mother State
D 2
O 2
Incorporated nnA Principal Place
of Business In Mother State
O
5
O 5
Citizen or Subject of a
Forei n Coun
O 3
O 3
Foreign Nation
O 6
O 6
O 625 Drug Related Seizure
of Roperty 21 USC 881
O 690 Other
O 422 Appeal 28 USC I58
O 423 Withdrawal
28 USC 157
I H'f
PR
O 820 Copyrights
P9 830 Patent
O 840 Trademark
O 710 Fair Labor Standards
Act
O 720 Labor/Mgmt. Relations
O 740 Railway Labor Act
O 751 Family and Medical
Leave Act
O 790 Otlier Labor Litigation
O 791 Empl. Ret. Inc.
Security Act
OTHER 51'ATUTES
BANKRUPTCY
F RFEITURE/PENALTY
O
O
O
O
O
~
861 HIA (1395f~
862 Black Lung(923)
863 DIWC/DiWW (405(g))
864 SSID Title ?M
865 RSl(405(8))
FEDERAL TAX SUITS
O 870 Taxes(U.S. Plaintiff'
or Defendant)
O 871 IRS—Third Parry
26 USC 7609
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
375 False Claims Act
400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer InFluenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 OUier Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom oTlnfbrmation
Acl
896 Arbiaation
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State StaNtes
IMMIGRATION
O 462 Naturalization Application
O 463 Habeaz Corpus Alien Detainee
(Prisoner Petition)
D 465 Other Immigration
Actions
(Place on "X” in One Box Only)
Transferred from O 6 Multidistrict
O 4 Reinstated or O 5 another district
O 3 Remanded from
O 2 Removed from
Litigation
S eC/
Reopened
Appellate Court
State Court
Cite the U.S. Civil Statute under which you are filing (Do nat citejurisdiclional statutes unless dfversJty):
35 U.S.C. 100, et se .
V1. CAUSE OF ACTION Brief description of cause:
Declaratory iud4ment of non-infringement and invalidity of U.S. Patent No. 8,354,450
CHECK YES only if demanded in complaint:
DEMAND $
~ CHECK iF THIS IS A CLASS ACTION
VII. REQUESTED IN
O No
~ Yes
NRY DEMAND:
23
F.R.C.P.
[JNDER
COMPLAINT•
VIII. RELATED CASES)
fsee ~^S~^~cnons~:
DOCKET NUMBER
AGE
IF ANY
SIGNATURE OF ATTORNEY OF RECORD
DATE
/s/ James F. Sanders
02/21/2014
/s/ J. Isaac Sanders
FOR OFFICE USE ONLY
RECEIPT #
AMOUNf
APPLYING iFP
JUDGE
MAG.JUDGE
Case 3:14-cv-00558 Document 1-4 Filed 02/21/14 Page 1 of 2 PageID #: 93
JS 44 Reverse (Rev. 09/1 l)
7AiCTDiT!'T7llATC L'~D
,~r-rnu~y~vc rn~vrpi.FTitvr rTVii.f'(1VF.R CHF.F_.T FARM .TC 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplerr~nts the filings and service of pleading or other papers as required
by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the
use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil
complaint fled. The attorney fling a case should complete the fom► as follows:
I.
(a)Plaintiffs-Defendants. Enter narres(last, first, middle initial) of plaintiff and defendant. Ifthe plaintiff or defendant is a govemrrent agency,use only
the full name or standard abbreviations. Ifthe plaintiff or defendant is an official within agovemment agency,identify first the agency and then the official, giving
both name and title.
(b)County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name ofthe county where the first listed plaintiff resides at the
time offiling. In U.S. plaintiff cases, enter the name ofthe county in which the first listed defendant residesat the time of filing. (NOTE: In land condemnation
cases, the county ofresidence of the "defendant" is the location ofthe tract ofland involved.)
(c)Attorneys. Enter the firm name, add►ess, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
Jurisdiction. The basis ofjurisdiction is set forth under Rule 8(a), F.R.CP., which requires thatjurisdictions be shown in pleadings. Place an "X" in one
II.
of the boxes. If there is more than one basis ofjurisdiction, precedence is given in the order shown below.
United States plaintiff. (1)Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X"in this box.
Federal question. (3)This refers to suits under 28 U.S.C. 1331, where jurisdicti on arises under die Constitution ofthe United States, an amendment to the
Constitution, an act of Congress or a treaty ofthe United States. In cases where the U.S. is aparty,the U.S. plaintiffor defendant code takes precedence, and box
1 or 2 should be marked.
Diversity of citizenship. (4)This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of
the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)
III.
Residence(citizenship)of Principal Parties. This section of the JS 44 is[o be completed if diversty of citizenship was indicated above. Mark this section
for each principal party.
IV.
Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in S ec[ion Vi below, is
sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature ofsuit. If the cause fits more than one nature of
suit, select the most definitive.
V.
Origin. Place an "X"in one ofthe seven boxes.
Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2)Proceedings initiated in state courts may be removed to the district courts under Title 28U.S.C.,Section 1441. When the petition
for removal is granted, check this box.
Remanded from Appellate Court. (3)Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
Reinstated or Reopened. (4)Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5)For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict
litigation transfers.
Mul[idistrict Litigation. (6)Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this
box is checked, do not check(5)above.
Appeal to District Judge from Magistrate Judgment. (7)Check this box for an appeal from a magistrate judge's decision.
Vi.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description ofthe cause Do not cite jurisdictional statutes
U.S. Civil Statue: 47 USC 553
Example:
unless diversity.
Brief Description: Unauthorized reception of cable service
Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the dollaz amount(in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.
VII.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section ofthe JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers
and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Case 3:14-cv-00558 Document 1-4 Filed 02/21/14 Page 2 of 2 PageID #: 94
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESEE
NASHVILLE DIVISION
COMPLETE NUTRITION HOLDINGS, INC.,
Plaintiff,
v.
VIREO SYSTEMS, INC. and BOARD OF
REGENTS OF THE UNIVERSITY OF
NEBRASKA,
Defendants.
)
)
)
)
)
)
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Civil Action No. 14-_____
JURY TRIAL DEMANDED
COMPLAINT FOR DECLARATORY JUDGMENT
For its complaint against defendants Vireo Systems, Inc. (“Vireo”) and the Board of
Regents of the University of Nebraska (“University”) (collectively “defendants”), plaintiff,
Complete Nutrition Holdings, Inc. (“Complete Nutrition”), alleges as follows:
1.
Complete Nutrition seeks a declaratory judgment that it does not infringe any
valid claim of U.S. Patent No. 8,354,450 (“the ‘450 patent”), captioned “Creatine oral
supplementation using creatine hydrochloride salt”, which issued on or about January 15, 2013.
A true and correct copy of the ‘450 patent is attached as Exhibit 1. The alleged name inventors
are Donald W. Miller, Jonathan L. Vennerstrom, and Mark C. Faulkner. The alleged assignees
are Vireo and the University. The Abstract of the ‘450 patent describes the invention as follows:
“The present invention is directed to a third generation form of creatine, specifically a creatine
hydrochloride salt, that drives significant improvements in muscle development and recovery
due to its enhanced bio-availability, while causing fewer negative side effects compared to
previous forms of creatine.” The ‘450 patent is entitled to a priority date of October 21, 2010.
4815-8420-0728.1.
Case 3:14-cv-00558 Document 1 Filed 02/21/14 Page 1 of 7 PageID #: 1
PARTIES
2.
Complete Nutrition is a Nebraska corporation with its principal place of business
in Omaha, Nebraska.
3.
Vireo is a Tennessee corporation with its principal place of business in Madison,
Tennessee.
4.
The University is a state university located in Lincoln, Nebraska.
JURISDICTION AND VENUE
5.
This Court has subject matter jurisdiction over this complaint pursuant to 28
U.S.C. §§ 1331, 1338 and 2201.
6.
Venue is proper in this forum pursuant to 28 U.S.C. §§ 1391(b) and (c), 1400(b),
and the applicable law of this Court. Personal jurisdiction and venue are proper in this Court
because of, inter alia, Vireo’s corporate domicile and the fact that it has engaged in commerce
within this jurisdiction and continues to have substantial contact with this forum. Moreover, the
University has been and is doing business in this District, including without limitation, entering
into one or more contracts with Vireo regarding the patent-in-suit.
CASE OR CONTROVERSY
7.
An immediate, real, and justiciable controversy exists between the parties to this
action pertaining to the patent-in-suit, which has been threatened against Complete Nutrition. On
September 20, 2013, Vireo’s counsel sent a letter to Complete Nutrition alleging that two of its
products, Blitzz and CX5 (“accused products”), contain Creatine HCl as an ingredient and
infringe the claims of the ‘450 patent. Vireo’s letter demanded that Complete Nutrition (a)
immediately cease and desist from marketing and selling the accused products, (b) account for
all sales, and (c) identify the manufacturer of the accused products. The letter demanded that
Complete Nutrition provide written assurance to Vireo that it had taken these steps by October
2
4815-8420-0728.1.
Case 3:14-cv-00558 Document 1 Filed 02/21/14 Page 2 of 7 PageID #: 2
18, 2013. On January 31, 2014, Vireo’s counsel sent a letter to Complete Nutrition’s counsel
again asserting that the accused products infringed the ‘450 patent. The letter further stated that
Complete Nutrition’s alleged “continued infringement” was in “willful disregard of our client’s
patent right” that would entitle Vireo to injunctive relief, damages, treble damages and attorneys’
fees. The letter also wrote that Vireo considered this to “be a serious matter, and we have been
instructed to take those actions necessary to ensure that their patent rights are not being
violated.” Vireo demanded that, by February 28, 2014, Complete Nutrition (a) immediately cease
and desist from marketing and selling the accused products, (b) destroy all products containing
Creatine HCl, including the accused products, (c) account for all sales, and (d) identify the
manufacturer of the accused products. Absent such assurance, Vireo’s counsel would
recommend that its client “proceed with legal action against Complete Nutrition.” A true and
correct copy of this correspondence is attached as Exhibit 2 and incorporated herein by
reference. Because Complete Nutrition does not infringe a valid claim of the ‘450 patent, it will
not comply with Vireo’s demands.
FACTS
8.
Complete Nutrition is an upscale nutritional supplement retail store, with the goal
of helping each customer look better, feel better and perform better every day. Started in 2004,
Complete Nutrition is now one of the fastest-growing franchises in the nation. After accruing a
combined 30 years of experience in the supplemental retail industry, the leadership behind what
would become Complete Nutrition recognized a niche was not being served: a nutritional
supplement store where personal service, less intimidating store environments, and truly great
products combine to help people live and breathe a healthy lifestyle. To that end, Complete
Nutrition stores employ certified personal trainers, former strength coaches and other
3
4815-8420-0728.1.
Case 3:14-cv-00558 Document 1 Filed 02/21/14 Page 3 of 7 PageID #: 3
experienced fitness professionals in order to best assist customers in developing personalized
nutrition programs. Complete Nutrition also works with various health care providers,
nutritionists and chemists to develop the highest-quality formulations for supplements. These
products are exclusive to Complete Nutrition and serve as a customer’s best weapon in reaching
their goals.
9.
Complete Nutrition’s two accused products, Blitzz and CX5, contain Creatine
HCl as an ingredient.
10.
Vireo purports to research, develop and manufacture nutraceutical compounds,
including amino acids, including without limitation, the dietary supplement called CON-CRET®.
CON-CRET® is marked with ‘450 patent and has been on sale in the United States since at least
2003.
11.
Vireo has registered the trademark for “CON-CRET” as a dietary supplement
(Reg. No. 3222738). The mark was applied for on May 30, 2006 and U.S. Patent and Trademark
Office records state that the mark was first use in commerce was November 6, 2003.
Furthermore, the prosecution history file demonstrates that the mark was originally applied for
by Mark Faulkner, one of the alleged inventors of the ‘450 patent, and that he submitted the
application declaring that he, or his company, Vireo, “is using the mark in commerce, and lists
below the dates of use by the applicant, or the applicant’s related company.” He further states
that the mark was “first used in commerce as least as early as 11/06/2003, and is now in use in
such commerce.” A specimen included with the May 30, 2006 application shows CON-CRET
being used on a container that had statements including “[h]ighly purified & more effective form
of conjugated creatine”, “[p]romotes significant muscle building without side effects”, and
“superior bio-availability.”
4
4815-8420-0728.1.
Case 3:14-cv-00558 Document 1 Filed 02/21/14 Page 4 of 7 PageID #: 4
12.
Vireo has falsely alleged that Complete Nutrition’s accused products infringe one
or more claims of the ‘450 patent, which Complete Nutrition denies. Further, the patent-in-suit is
invalid.
13.
On February 20, 2014, Compete Nutrition filed a petition for inter partes review
of the ‘450 patent with the U.S. Patent and Trademark Office, a true and correct copy of which is
attached as Exhibit 3 and incorporated herein by reference. The petition was filed before this
complaint was filed. Pursuant to section 6(a) of the America Invents Act (codified at 35 U.S.C. §
315(a)(2)), this declaratory judgment case is automatically stayed.
FIRST CLAIM
(DECLARATORY JUDGMENT OF NONINFRINGEMENT OF THE ‘450 PATENT)
14.
Complete Nutrition repeats and realleges the foregoing allegations as though fully
set forth herein.
15.
Complete Nutrition is not infringing, and has not infringed, contributed to the
infringement of, or induced the infringement of any valid and enforceable claim of the ‘450
patent, either literally or under the doctrine of equivalents.
16.
Complete Nutrition’s products have not and do not infringe upon any valid and
enforceable claim of the ‘450 patent, either literally or under the doctrine of equivalents.
SECOND CLAIM
(DECLARATORY JUDGMENT OF INVALIDITY OF THE ‘450 PATENT)
17.
Complete Nutrition repeats and realleges the foregoing allegations as though fully
set forth herein.
18.
The ‘450 patent and each claim thereof is invalid for failing to comply with the
conditions and requirements for patentability under 35 U.S.C. §§ 101, 102, 103 and/or 112.
5
4815-8420-0728.1.
Case 3:14-cv-00558 Document 1 Filed 02/21/14 Page 5 of 7 PageID #: 5
REQUEST FOR RELIEF
Wherefore, Complete Nutrition prays for judgment in its favor and against Vireo as
follows:
a.
declaring that Complete Nutrition has not infringed, contributed to the
infringement of, induced the infringement of, and is not presently infringing, any
claims of the ‘450 patent, either literally or under the doctrine of equivalence;
b.
declaring that the claims of the ‘450 patent are invalid;
c.
holding this case to be exceptional and awarding Complete Nutrition its attorneys’
fees under 35 U.S.C. § 285;
f.
awarding Complete Nutrition its costs pursuant to Rule 54(d), Fed. R. Civ. P.; and
g.
granting any other relief the Court may deem appropriate under the
circumstances.
DEMAND FOR JURY
Complete Nutrition hereby demands a trial by jury on all issues so triable.
Dated: February 21, 2014
Respectfully submitted,
s/J. Isaac Sanders
James F. Sanders, No. 005267
J. Isaac Sanders, No. 029372
NEAL & HARWELL, PLC
150 Fourth Avenue, North
Suite 2000
Nashville, TN 37219
(615) 244-1713
[email protected]
Attorneys for Plaintiff
Complete Nutrition Holdings, Inc.
6
4815-8420-0728.1.
Case 3:14-cv-00558 Document 1 Filed 02/21/14 Page 6 of 7 PageID #: 6
Of Counsel:
Richard J. Oparil
Kevin M. Bell
PATTON BOGGS LLP
2550 M Street, NW
Washington, DC 20037
(202) 457-6000
Caroline Maxwell
PATTON BOGGS, LLP
2000 McKinney Ave, Suite 1700
Dallas, Texas 75201
(214) 758-1500
7
4815-8420-0728.1.
Case 3:14-cv-00558 Document 1 Filed 02/21/14 Page 7 of 7 PageID #: 7