Case 1:12-cv-11371-MLW Document 1 Filed 07/27/12 Page 1 of 8

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

OPHTHALMIC RESEARCH ASSOCIATES, INC., Plaintiff, v. SARCODE CORPORATION, Defendant.

) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. JURY TRIAL DEMANDED

COMPLAINT Plaintiff, Ophthalmic Research Associates, Inc. (ORA), as and for its complaint against defendant, SARcode Corporation (SARcode), alleges as follow: NATURE OF THE ACTION 1. This is an action for copyright infringement, trade secret misappropriation, breach

of contract, unfair competition, and violation of M.G.L. chapter 93A. PARTIES 2. ORA is a Massachusetts corporation having a principal place of business at 300

Brickstone Square, Third Floor, Andover, MA 01810. 3. Upon information and belief, SARcode is a Delaware corporation having a

principal place of business at 343 Sansome Street, Suite 505, San Francisco, CA 94104. JURISDICTION AND VENUE 4. This Court has jurisdiction over ORAs copyright infringement claims pursuant to

28 U.S.C. Sections 1331, 1332 and 1338(a). This Court has jurisdiction over ORAs state law

06021625

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claims pursuant to the doctrines of pendant jurisdiction and diversity in that the amount in controversy exceeds $75,000. 5. Venue is proper herein in that the majority of the acts complained of occurred

within this judicial district and the parties conduct systematic and continuous business herein. COUNT I (Copyright Infringement) 6. ORA realleges and incorporates by reference the allegations set forth in

paragraphs 1-5 above. 7. Assessment. 8. ORA has filed a request in the United States Copyright Office to register its ORA is the owner of the copyrights in a work known as the ORA Drop Comfort

copyrights in the work entitled Drop Comfort Assessment. 9. Pursuant to a written contract dated August 22, 2008 between ORA and SARcode

(the Agreement), ORA provided to SARcode a copy of the work entitled Drop Comfort Assessment. 10. At all times material to the allegations set forth herein, SARcode knew that the

work entitled Drop Comfort Assessment was copyrighted and that such copyrights were and are owned by ORA. 11. On or around July 18, 2012, ORA learned that SARcode has willfully copied and

violated ORAs copyrights in the work entitled Drop Comfort Assessment. More particularly, ORA learned that SARcode had removed ORAs copyright notice from said work, copied the content of said work, and distributed the infringing copies with ORAs copyright notice removed to one or more third-parties.

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12.

The willfulness of SARcodes copyright infringement is demonstrated by the

statements of its Senior Director of Clinical Operations, Valerie Smith. In an email dated July 16, 2012, Ms. Smith stated that SARcode was using drop comfort in [a clinical trial] without ORA. Ms. Smith further stated that SARcode had just trained investigators without ORAs permission. 13. In an email dated July 17, 2012, writing regarding ORAs Drop Comfort

Assessment work, Ms. Smith admitted that Charlie removed the copyright. This is why Im concerned. Its an easy fix as I can add it back in a protocol revision, but we did not get [ORAs] approval ahead of time to use it. On information and belief, Charlie referenced above is Charlie Semba, SARcodes Chief Medical Officer. 14. In the email dated July 17, 2012, recognizing that SARcode had willfully violated

ORAs copyrights, Ms. Smith stated that SARcodes actions were making her sick to [her] stomach and toss and turn all night! Ms. Smith also questioned whether it was ok to use Oras Drop Comfort Scale that has a trademark in [the clinical trial] without [Oras] permission. Ms. Smith also acknowledged that SARcode did not get [ORA;s} approval ahead of time to use the work entitled Drop Comfort Assessment with third parties. 15. As demonstrated by a comparison of ORAs genuine work entitled Drop

Comfort Assessment with SARcodes infringing version thereof, SARcodes infringing version is substantially similar to ORAs genuine original work. 16. SARcodes actions described above violate ORAs exclusive rights of copyright

in the work entitled Drop Comfort Assessment.

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17.

SARcodes infringement of ORAs copyrights has caused reparable and

irreparable damage to ORA and such damage will continue until such time as SARcode is preliminarily and permanently enjoined from such infringement. 18. willful. COUNT II (Unlawful Removal of Copyright Notice) 19. ORA realleges and incorporates by reference the allegations set forth in SARcodes infringement of ORAs copyrights has been and continues to be

paragraphs 1-18 above. 20. As set forth above, SARcode removed ORAs copyright notice and distributed

SARcodes infringing version of the work entitled Drop Comfort Assessment with such notice removed. 21. SARcode removed ORAs copyright notice with the willful and deliberate intent

to conceal from third-party recipients of such infringing copies that ORA is the rightful owner of the copyrights in such work. 22. For its willful violation of 17 U.S.C. 506(d), SARcode should be fined in the

amount of $2,500. COUNT III (Trade Secret Misappropriation) 23. ORA realleges and incorporates by reference the allegations set forth in

paragraphs 1-22 above. 24. 25. This claim arises under the common law of the Commonwealth of Massachusetts. SARcodes conduct constitutes a knowing and willful violation of the common

law of trade secret misappropriation in the Commonwealth of Massachusetts.

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26.

Pursuant to the Agreement, ORA disclosed and provided to SARcode a work

entitled Procedure for Evaluating Corneal Staining With Fluorescein. 27. Pursuant to the terms of the Agreement, SARcode agreed that the work entitled

Procedure for Evaluating Corneal Staining With Fluorescein comprises Confidential Information of ORA. 28. The work entitled Procedure for Evaluating Corneal Staining With Fluorescein

is not generally known to the public and comprises a trade secret of ORA. This trade secret is a valuable asset of ORA. 29. SARcode unlawfully misappropriated, copied and converted ORAs trade secret

in the work entitled Procedure for Evaluating Corneal Staining With Fluorescein for use by SARcode with third parties. 30. Such actions by SARcode were deliberate, willful and wonton and caused

significant reparable and irreparable damage to ORA. 31. SARcodes misappropriation of ORAs trade secrets will continue until such time

as SARcode is preliminary and permanently enjoined. COUNT IV (Unfair Competition) 32. ORA realleges and incorporates by reference the allegations set forth in

paragraphs 1-31 above. 33. 34. This claim arises under the common law of the Commonwealth of Massachusetts. SARcodes conduct described above constitutes a knowing and willful violation

of the common law of unfair competition in the Commonwealth of Massachusetts. 35. SARcodes acts of unfair competition have caused damage, including reparable

and irreparable harm, to ORA. 5

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36.

Unless enjoined, SARcode will continue to compete unfairly with ORA in

violation of the common law. COUNT V (Violation of M.G.L. c. 93A, 2, 11) 37. ORA realleges and incorporates by reference the allegations set forth in

paragraphs 1-36 above. 38. This claim is brought pursuant to the laws of the Commonwealth of

Massachusetts. 39. SARcodes conduct described above constitutes a knowing and willful violation

of M.G.L. chapter 93A, 2 and 11. 40. SARcodes violation of M.G.L. chapter 93A, 2 and 11 has caused reparable

and irreparable harm to ORA and such harm will continue until such time as SARcode is preliminarily and permanently enjoined. COUNT VI (Breach of Contract) 41. ORA realleges and incorporates by reference the allegations set forth in

paragraphs 1-40 above. 42. This claim is brought pursuant to the laws of the Commonwealth of

Massachusetts. 43. ORA. 44. Pursuant to the terms of the Agreement, SARcode agreed that the work entitled SARcode has breached the confidentiality provisions of the Agreement with

Procedure for Evaluating Corneal Staining with Fluorescein comprises confidential

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information of ORA and agreed that no party shall use any Confidential Information of the other party other than for the purposes stated in the Agreement. 45. Pursuant to Section 3.1 of the Agreement SARcode further agreed that no party

shall disclose any Confidential Information of the other party to a third party. 46. Pursuant to Section 3.2 of the Agreement SARcode agreed that in no event shall

SARCODE [sic] disclose any Confidential Information of ORA to any competitor of ORA or other contract research organization that provides services similar to the Services provided by ORA to SARCODE [sic] hereunder. In addition SARCODE [sic] shall not disclose any ORA Confidential Information to its approved contractors, agents, external consultants, or advisors unless such party has directly entered into a confidential disclosure agreement with ORA. 47. As a result of its breach of the Agreement SARcode has caused ORA irreparable

harm, and such harm will continue until such time as SARcode is permanently and preliminary enjoined from the use and distribution of ORAs trade secrets and Confidential Information. WHEREFORE, ORA prays that the Court: A. B. Enter judgment in favor of ORA on all counts of the Complaint; Preliminarily and permanently enjoin SARcode, its officers, agents, servants, employees and all other persons in active concert or participation with SARcode from all further acts of copyright infringement, trade secret misappropriation, unfair competition and breach of the confidentiality provisions of the Agreement. C. Award ORA all damages caused by SARcodes unlawful conduct set forth above in Counts I-V; D. E. Award ORA increased damages; Award ORA its attorneys fees, costs and expenses incurred in this action; and

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F.

Award ORA such other and further relief as the Court may deem just and proper. JURY DEMAND

ORA hereby demands trial by jury on all issues set forth above so triable. OPTHALMIC RESEARCH ASSOCIATES, INC.,

Date: July 27, 2012

By: /s/ Paul Hayes Paul J. Hayes, MA BBO# 227000 Dean G. Bostock, MA BBO# 539747 Justin P. Hayes, MA BBO# 624876 James C. Hall, MA BBO# 656019 HAYES, BOSTOCK & CRONIN LLC 300 Brickstone Square, Suite 901 Andover, MA 01810 Tel: (978) 809-3850 Fax: (978) 809-3869 Email: phayes@hbcllc.com Email: dbostock@hbcllc.com Email: jhayes@hbcllc.com Email: jhall@hbcllc.com ATTORNEYS FOR THE PLAINTIFF OPTHALMIC RESEARCH ASSOCIATES, INC.