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 ~G,. ..~~....I~e ,.Mo v vv ~ v ~.~r. ~a w•. /u ~~7 A~ctm Pe~C/1CTN/C Fl1RAA~ icc~,~l~CTn~1~T/~T ~u 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. ) ) ) ) ) ) ) ) ) ) ) ) ) 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
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