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Everett Laboratories v. Acella Pharmaceuticals

Everett Laboratories v. Acella Pharmaceuticals

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Published by PriorSmart
Official Complaint for Patent Infringement in Civil Action No. 1:13-cv-04294-JEI-KMW: Everett Laboratories, Inc. v. Acella Pharmaceuticals, LLC. Filed in U.S. District Court for the District of New Jersey, the Hon. Joseph E. Irenas presiding. See http://news.priorsmart.com/-l8K5 for more info.
Official Complaint for Patent Infringement in Civil Action No. 1:13-cv-04294-JEI-KMW: Everett Laboratories, Inc. v. Acella Pharmaceuticals, LLC. Filed in U.S. District Court for the District of New Jersey, the Hon. Joseph E. Irenas presiding. See http://news.priorsmart.com/-l8K5 for more info.

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Published by: PriorSmart on Jul 15, 2013
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04/13/2014

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Robert J. SchoenbergRIKER DANZIG SCHERER HYLAND& PERRETTI LLPHeadquarters PlazaOne Speedwell AvenueMorristown, New Jersey 07962-1981Tel: (973) 451-8511Email: rschoenberg@riker.comOf Counsel:M. Roy Goldberg Nathaniel BrunoSHEPPARD MULLIN RICHTER & HAMPTON
LLP
 1300 I Street, N.W., Suite 1100 EastWashington, D.C. 20005-3314Tel: (202) 218-0000Email: rgoldberg@sheppardmullin.comEmail: nbruno@sheppardmullin.comAttorneys for Plaintiff Everett Laboratories, Inc.
UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY
EVERETT LABORATORIES, INC.,Plaintiff,v.ACELLA PHARMACEUTICALS, LLC,Defendant.Civil Action No.Hon. U.S.D.J.
COMPLAINT FORPATENT INFRINGEMENTAND JURY DEMAND
(Document Filed Electronically)
Plaintiff Everett Laboratories, Inc. ("Everett"), by its undersigned attorneys, for itsComplaint against Defendant Acella Pharmaceuticals, LLC ("Acella" or "Defendant"), allegesas follows:
INTRODUCTION AND SUMMARY
1.
 
This action seeks redress for,
inter alia
, Acella's deliberate and willfulinfringement of U.S. Patent No. 6,863,904 (the "'904 Patent") (a copy of which is attached as
Exhibit A
hereto) through Acella's manufacture, use, marketing, offering for sale, selling, and/or importing of its prescription-only nutritional supplement called "Choice-Tabs," which is a willfulexact copy of Everett's "Strovite
®
One" prescription-only nutritional supplement that is covered  by the '904 Patent.
 
 
-2-2.
 
According to its product insert, Choice-Tabs contains the same vitamins and minerals, in the same amounts, as Everett's Strovite
®
One. Accordingly – and as confirmed by acomparison of the Choice-Tabs product insert to the claims of the '904 Patent – Choice-Tabsdirectly infringes Claims 1-7, 9, and 11-55 of the '904 Patent. Additionally, because Acella sellsand distributes Choice-Tabs with a product insert that instructs the method of using Choice-Tabsto provide nutritional supplementation to a patient, Acella is also inducing direct infringement of method Claims 56-62, 64, and 66-110 of the '904 Patent by patients.3.
 
Because, on information and belief, leading computerized drug databases (such asFirst DataBank) have "linked" Choice-Tabs to Strovite
®
One, which causes wholesalers thatutilize information from the drug databases to offer Acella's lower-priced copy product Choice-Tabs for Everett's branded Strovite
®
One product and causes pharmacies that utilize informationfrom the drug databases to substitute Acella's lower-priced copy product Choice-Tabs for Everett's branded Strovite
®
One product when presented with a prescription for Strovite
®
One,Everett is being and will continue to rapidly and increasingly be irreparably harmed as a result of the existence of the infringing Choice-Tabs product in the market. It can be expected that, withinless than one year of Choice-Tabs being "linked" to Strovite
®
One, Choice-Tabs will havedisplaced more than 90% of the sales that otherwise would have been made by Everett of itsStrovite
®
One product by virtue of the "linking."4.
 
The presence of the Choice-Tabs product in the market creates a huge dilemma – a "Hobson's Choice" for Everett. Either Everett stops marketing its Strovite
®
One product or continues to spend money to market it to the advantage of its infringing competitor, Acella. Yet,if Everett stops marketing Strovite
®
One, Everett will forfeit sales to other nutritional supplementcompanies which, unlike Everett, will still have an incentive to market and promote their  products to doctors.
 
 
-3-
JURISDICTION AND VENUE
5.
 
This Court has original and exclusive jurisdiction of this action, pursuant to 28U.S.C. §§ 1331 and 1338(a), because the action arises under the Patent Laws of the United States, Title 35, United States Code. The Court also has original jurisdiction over the copyrightinfringement claim stated herein, pursuant to 28 U.S.C. § 1338(b), because that claim arisesunder Section 501(a) of the Copyright Act, 17 U.S.C. § 501(a). This Court further hassupplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) over the claim for tortious interferenceunder New Jersey common law stated herein, because that claim forms part of the same case or controversy as the other claims stated herein.6.
 
The Court has personal jurisdiction over Defendant Acella in this action becauseDefendant regularly conducts business in New Jersey, has engaged in infringing acts in NewJersey, and specifically has offered to sell, offers to sell, has sold, and/or sells the product that isthe subject of this Complaint in New Jersey and in this judicial district.7.
 
Venue is proper in this judicial district under 28 U.S.C. § 1391(b) because asubstantial part of the events or omissions giving rise to this Complaint occurred in this judicialdistrict.
THE PARTIES
 8.
 
Everett is a corporation organized and existing under the laws of the State of NewJersey, having its headquarters and principal place of business at One Main Street, Suite 203,Chatham, New Jersey, 07928.9.
 
Upon information and belief, Acella is a Delaware limited liability company,having its principal place of business at 11675 Great Oaks Way, Suite 144, Alpharetta, GA30022.

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