UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS : : Plaintiff, : v. : : STEVEN M. ZEITELS, : : Defendant. : ________________________________________ : COMPLAINT Plaintiff Dennis R.

DeVona (“DeVona”) brings this action against Defendant Steven M. Zeitels (“Zeitels”) and alleges as follows: NATURE OF THE CASE 1. This is a civil action pursuant to 35 U.S.C. § 256 for correction of inventorship of DENNIS R. DEVONA,

C.A. No.

U.S. Patent No. 6,955,645 (the “‘645 patent”) arising out of Zeitels’ failure to name DeVona as a co-inventor of the inventions claimed in the ‘645 patent. 2. This action also arises out of Zeitels’ wrongful dissolution of a partnership with

DeVona with respect to their co-ownership and management of a surgical instrument design, development and sales business (the “DeVona-Zeitels Business”). Zeitels unlawfully ousted DeVona from the DeVona-Zeitels Business and usurped its assets and profits. 3. This action seeks declaratory, equitable and monetary relief pursuant to: (i) Fed.

R. Civ. P. 57; (ii) 28 U.S.C. §§ 2201 and 2202; and (iii) R.I. Gen. Laws §7-12-1 et seq., the Rhode Island Uniform Partnership Act. This action also seeks relief for Zeitels’ breaches of fiduciary duty, breaches of contract and unjust enrichment.

4.

As a result of Zeitels’ misconduct, DeVona seeks: (i) to be named a co-inventor

of the ‘645 patent; (ii) declaratory relief concerning the date of dissolution of his partnership with Zeitels; (iii) equitable relief in the form of an accounting and the appointment of DeVona to wind-up the partnership; and (iv) monetary damages from Zeitels. THE PARTIES 5. 6. DeVona is a citizen of the State of Florida and resides in Winter Park, Florida. On information and belief, Zeitels is a citizen of the Commonwealth of

Massachusetts and resides in Newton, Massachusetts. JURISDICTION 7. This Court has jurisdiction over the subject matter of this action pursuant to 28

U.S.C. §§ 1331, 1338(a), 1367 and 2201. 8. This Court also has jurisdiction pursuant to 28 U.S.C. § 1332 as complete

diversity among the parties exists and the amount in controversy exceeds $75,000. 9. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b). STATEMENT OF FACTS A. The Parties’ Backgrounds 10. Zeitels is a physician specializing in laryngoscopy. He is a self-described surgical

innovator and claims to have designed more than twenty new laryngeal and pharyngeal procedures and to hold three laryngoscope patents. Zeitels has no formal education or experience in mechanical design or engineering. 11. DeVona has extensive experience and aptitude in mechanical design and

engineering, including the design and manufacture of biomedical instruments. In addition to his technical experience, DeVona ran a successful antiques business for decades.

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12.

DeVona and Zeitels were friends for over twenty years. Over the years, they

confided in one another on personal and professional issues. A mutual trust existed between them. In March 1995, Zeitels published a history of laryngoscopy and laryngology in the field’s journal of record, The Laryngoscope. Zeitels acknowledged and thanked DeVona for his “clear thinking” and “presence in this work.” As a testament to their longstanding friendship, in 2003 DeVona acted as marriage officiant at Zeitels’ wedding. B. Glottiscopes 13. A glottiscope is a form of enhanced laryngoscope that is used to facilitate tracheal

intubation of patients, e.g., to establish and maintain an open airway or to serve as a conduit to administer anesthetic substances or to provide ventilation of the lungs. Glottiscopes also provide the surgeon with access to: examine and surgically manipulate the vocal folds; distract the soft tissues of the oral cavity, pharynx and supraglottic larynx; and facilitate exposure and manipulation of lesions in the area of the larynx. 14. A conventional glottiscope consists of an elongate element (or, inspection tube),

which may be of varying geometry and is introduced through the patient’s mouth into the larynx. An attached handle enables the surgeon to manipulate not only the inspection tube but, as appropriate, to position the distal end of the inserted tube to perform inspection and/or surgical operations. The glottiscope typically includes a lumen, an internal portion, through which an endotracheal tube or, alternatively, one or more surgical tools can be simultaneously inserted. The design goal of any glottiscope is to provide an internal portion, or lumen, that provides the widest possible internal viewing and working area. 15. The placement of any glottiscope requires lighting to facilitate maneuverability

and final placement and to minimize tissue trauma. Conventional glottiscopes often use small bulbs, fiber-optics, or polymers that transmit light to provide illumination. Typically, the light 3

carrier is a separate device that is placed laterally on the outside of the inspection tube, which serves to widen the outer diameter of the scope and limit the size of the inspection tube that can be placed, and in turn limits the size of the operative field. Any light-carrier that is situated outside the glottiscope tube must eventually provide light into the lumen to provide internal illumination at the distal end. This typically leads to partial obstruction of the intraluminal visual surgical-field. This obstruction varies by degree but is present in all conventional glottiscopes. 16. In some glottiscope models, the light-carrier resides entirely within the lumen of

the glottiscope tube. The advantage of an internal light carrier is that the outer diameter of the tube is narrower, which facilitates the advancement of the scope by the patient’s mandible and the associated soft tissue. An internal light carrier, however, obstructs a physician’s binocular vision and access to the surgical field. The need for a suction aspiration cannula, or tube, in addition to a light-carrier cannula exacerbates even further the problems described above. C. The DeVona-Zeitels Business 17. In or around 1994, Zeitels discussed with DeVona ideas for surgical instrument

designs. Zeitels indicated that various companies had approached him about licensing some of his designs, but he was reluctant to do so given a negative past experience. In their discussions, DeVona counseled Zeitels to manufacture and sell the instruments himself rather than license his designs. Zeitels stated that he could not do it on his own and that he would need a key person to start such an endeavor. Zeitels asked if DeVona was interested in partnering in such a business. DeVona responded that he was happy running his successful antiques business in Rhode Island, but that he would consider Zeitels’ partnership proposal. That was the last DeVona heard about Zeitels’ proposal for the next few years. 18. In or around the summer of 1997, Zeitels called DeVona and referenced their

earlier discussions about starting a surgical instruments business. Mindful of the limited nature 4

of his own knowledge of mechanical design and engineering, Zeitels sought out DeVona for his expertise in mechanical design and industrial mechanics, and his knowledge and family connections in the machine tool and manufacturing industries in the Northeast. Zeitels suggested that they work together as partners to design and develop a new glottiscope system. 19. In or around late summer 1997, Zeitels and DeVona discussed Zeitels’ thoughts

for a glottiscope system that would improve upon the design limitations inherent in conventional glottiscopes. Zeitels showed DeVona an early-stage mock-up of a design consisting of an approximately 8” long by 1” wide blank metal triangular tube. Zeitels’ glottiscope design concept differed from conventional glottiscopes only in terms of the slightly different shape of the inspection tube. 20. Zeitels and DeVona discussed developing this crude design idea into a new type

of glottiscope. These discussions took place over the phone, at DeVona’s antiques shop in Rhode Island and at Zeitels’ house and operating room in Massachusetts over a period of time. Ultimately, these discussions led to an agreement between Zeitels and DeVona that they would work together as partners to design and develop surgical instruments, glottiscopes initially, for commercial sale. 21. In or around the fall of 1997, DeVona and Zeitels launched the DeVona-Zeitels

Business. They agreed to operate and manage the business as co-owners and to split all profits arising out of the operation and/or sale of the business on a 60% - 40% basis, with 60% going to Zeitels and 40% going to DeVona. At the same time, DeVona and Zeitels agreed that they would concentrate on the research, development and sale of surgical instruments. Their ultimate goal was to sell the business and its intellectual property and split the profit on the sale according to their agreed upon 60% - 40% profit splitting arrangement.

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22.

Zeitels and DeVona agreed that DeVona would be responsible for running the

day-to-day operation of the business as well as designing and developing the mechanical features and manufacturing processes of the surgical instruments. Zeitels and DeVona understood that this would require a full time commitment by DeVona. They agreed that Zeitels would be responsible for providing initial capital and academic support, determining the commercial viability of new product developments and marketing and monetizing the business opportunities of the partnership. 23. Over approximately fourteen years, the DeVona-Zeitels Business concentrated on

the research, design, manufacture, promotion and sale of various surgical instruments. The partnership with Zeitels required DeVona to give up his successful antiques business and forgo all other business and employment opportunities. Zeitels continued to work full time as a physician. D. The Glottiscope Design Process 24. Upon commencement of the DeVona-Zeitels Business, DeVona and Zeitels began

collaborating to improve upon Zeitels’ preliminary glottiscope design concept. 25. Over the course of the partnership, design work for a new glottiscope took place

from a dedicated space carved out of DeVona’s Rhode Island home, at a studio DeVona established in Rhode Island and ultimately from commercial space in Florida. Throughout their partnership, DeVona shared with Zeitels certain glottiscope design developments. DeVona and Zeitels worked together in a collaborative relationship formulating glottiscope designs. 26. Zeitels originally believed that the light carrier and suction cannulae needed to be

located on either the inside or outside of the glottiscope’s inspection tube because that is how all prior glottiscope’s were designed. Zeitels then suggested the possibility of passing the cannulae both inside and outside, through the sidewall of the inspection tube. Ultimately, given the need 6

to retain binocular vision for an operating microscope looking through the inspection tube, Zeitels suggested a glottiscope design locating the light cannula on the outside of the inspection tube and having the light and suction cannulae emerge at the tip on the inside of the inspection tube. However, this design was flawed and limited the size of the inspection tube, which would affect the surgeon’s view and ability to insert instruments into the patient. 27. DeVona set about to develop a solution to these limitations. DeVona and Zeitels

understood that locating the light and suction cannulae inside the inspection tube would block vision. They also understood that locating the light and suction cannulae on the outside of the inspection tube would limit the size of the tube and the operative field. 28. In late 1997, DeVona independently conceived of the idea of fixing the light and

suction cannulae within channels located inside the wall of the glottiscope’s inspection tube. 29. In or around March 1998, DeVona independently conceived of a glottiscope

design fixing the light and suction cannulae within channels inside the wall of the glottiscope’s detachable base plate. This design solved the vision and tube size limitations inherent in conventional glottiscope designs. DeVona showed Zeitels his conceptual design drawings with the light and suction cannulae fixed within channels inside the glottiscope’s base plate. 30. There was also a need to design the exact angle of convergence for the shape of

the inspection tube from the proximal end to the distal end while retaining binocular vision. To solve this problem, DeVona concluded they needed to measure the precise ocular angles of the operating microscope, and that their inspection tube design shape should trace just outside the ocular angles of the microscope used to determine the precise minimums that would maintain binocular vision. As DeVona understood, this measurement would define the exact size and shape of the glottiscope’s inspection tube.

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31.

DeVona contacted various engineering firms to create models of his design.

Eventually, DeVona retained BAK Precision Industries (“BAK”) in Cranston, Rhode Island to engineer and manufacture a working prototype. 32. In or around May 1998, BAK completed for DeVona several early-stage

glottiscope base plate proofs of concept. They included a detachable J-slot mechanism for the glottiscope’s inspection tubes that allowed the user to attach inspection tubes of differing dimensions. 33. In or around June 1998, DeVona had come up with a rough estimation of a design

fixing the light and suction cannulae within channels inside the wall of the glottiscope’s detachable base plate. DeVona shared his design drawings with Zeitels. Throughout the summer of 1998, DeVona continued to refine his design and to research potential manufacturers for different aspects of the glottiscope. 34. Later in 1998, Zeitels and DeVona met with a colleague of Zeitels to discuss

design options for their glottiscope. In particular, the three discussed the issues of how to make the base plate detachable from the inspection tube and where to locate the light and suction cannulae. During this meeting, DeVona showed his design drawings (the ones he had shown Zeitels months earlier) fixing the light and suction cannulae within channels inside the base plate wall, and locating the base plate (on a slot instead of a flange) at the bottom of the inspection tube. Zeitels’ colleague validated the benefits of the design elements conceived of by DeVona. DeVona and Zeitels decided that DeVona’s designs should be incorporated into their glottiscope. 35. DeVona and Zeitels continued to collaborate on improved glottiscope designs.

DeVona continued to refine his baseplate design. DeVona produced various design drawings

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and proofs of concept of his glottiscope design. As part of his design process, DeVona experimented with different manufacturing materials and processes. 36. In or around December 1998, Progressive Design Solutions, LLC in

Northampton, Massachusetts prepared design drawings based on DeVona’s design. 37. In or around January 1999, DeVona oversaw the manufacture of the first crude

prototype of his detachable baseplate design incorporating the fixed light and suction channels. E. Zeitels Applies For The ‘830 Patent 38. On June 25, 1998, Zeitels filed U.S. patent application No. 09/104,182 (the “‘182

application”) in the United States Patent and Trademark Office (“USPTO”), naming Zeitels as the sole inventor of a glottiscope. Zeitels did not inform DeVona that he had applied for a patent in connection with the glottiscope being designed for their business. 39. In the ‘182 application, Zeitels submitted under oath that he is the sole inventor of

the subject matter claimed therein. 40. At the time he filed the ‘182 application, Zeitels knew that a solution for the

design of the light and suction cannulae channels remained outstanding, as did the need to design the detachable baseplate and locking mechanism. Accordingly, Zeitels did not include these inventions in the patent application. Instead, Zeitels merely sought to patent the basic triangular shape of the glottiscope’s inspection tube with a detachable baseplate and mechanism allowing for a detachable handle. 41. On April 13, 1999, U.S. Patent No. 5,893,830 (the “‘830 patent”) issued based on

the ‘182 application naming Zeitels as the sole inventor. 42. At some point during 1999, DeVona learned that the ‘830 patent had issued to

Zeitels in his name alone. When DeVona confronted Zeitels about not being named as an inventor, Zeitels assured DeVona that the patent needed to be in Zeitels’ name alone for business 9

and professional reasons. Zeitels further assured DeVona that he need not worry about not being named as a co-inventor given DeVona’s 40% stake in the business and the patent is an asset of the business. Based on these assurances, and on DeVona’s trust in Zeitels’ as partner and friend, DeVona agreed not to contest his omission as a co-inventor in the ‘830 patent. F. Endocraft, LLC 43. On April 21, 1999, unbeknownst to DeVona, and roughly one week after the ‘830

patent issued, Zeitels filed a Certificate of Organization with the Rhode Island Secretary of State for Endocraft, LLC with the stated purpose of selling surgical instruments. Zeitels listed himself as the sole member of Endocraft, LLC. 44. When he informed DeVona of Endocraft, LLC, Zeitels insisted that their

partnership needed a corporate form with Zeitels as the face of the company to be taken credibly by the medical and business communities. Zeitels told DeVona that while Zeitels nominally listed himself as the sole member of Endocraft, LLC given his credentials as a physician, they would continue to conduct their partnership, now through Endocraft, LLC, just as they had all along. Zeitels assured DeVona that they would formalize their agreement in writing once their business became profitable and ready for sale. 45. DeVona and Zeitels agreed and understood that DeVona would continue focusing

on his role of developing a manufacturable and marketable glottiscope for the DeVona-Zeitels Business. Zeitels also acknowledged that they would continue to operate and manage the DeVona-Zeitels Business, and its corporate form, Endocraft, LLC, as co-owners, splitting profits according to their agreed upon 60% - 40% split on the income and business value. They also agreed and understood that they would split any profit on the eventual sale of the DeVonaZeitels Business, inclusive of Endocraft, LLC, according to their 60% - 40% profit splitting arrangement. 10

G.

DeVona Continues To Refine The Glottiscope Design 46. Throughout the early part of 1999, DeVona continued to experiment with

different glottiscope designs. He created various prototypes based on his drawings in an attempt to solve various design issues. 47. In or around April 1999, DeVona independently conceived of a glottiscope design

fixing the light and suction cannulae within channels located inside a laser-welded sandwich of the detachable base plate. In or around May 1999, DeVona oversaw the preparation of design drawings and the production of prototypes of his design. 48. By June 1999, DeVona had invested thousands of unpaid hours developing the

glottiscope design and manufacturing processes, focusing exclusively on partnership business. Zeitels, however, continued to work full time as a physician. Zeitels drew-up and presented DeVona with an Independent Sales Representative Agreement with Endocraft, LLC. Pursuant to that document, DeVona would receive commissions on sales made through Endocraft, LLC. Zeitels explained the arrangement as a means to provide DeVona with an income until the DeVona-Zeitels Business became profitable and ready for sale. 49. Around this same time, DeVona attended to complying with U.S. Food and Drug

Administration Medical Device Good Manufacturing Practices. DeVona endeavored to incorporate these standards into the glottiscope’s design and manufacturing processes. 50. Toward the end of 1999, DeVona conceived of a significant improved design for

separating the light and suction cannulae from the detachable base plate and allowing the cannulae to slide in and out of channels located within the base plate. DeVona continued to refine his baseplate design. Through this refinement process, it became clear to DeVona that the ultimate glottiscope design should include a detachable base plate having channels allowing for removable light and suction cannulae that can be inserted and removed from the channels. 11

51.

In early 2000, DeVona oversaw the preparation of design drawings of his

removable light and suction cannulae design. Thereafter, DeVona oversaw the preparation of assembly and manufacturing drawings. DeVona and Zeitels geared up for production and sales. H. Zeitels Applies For The ‘645 Patent 52. On April 12, 1999, Zeitels filed U.S. provisional patent application No.

60/128,793 (the “‘793 application”) in the USPTO, listing himself as the sole inventor. On February 4, 2002, Zeitels filed U.S. patent application No. 10/061,256 (the “‘256 application”), listing himself as the sole inventor. The ‘256 application is a continuation-in-part of application No. 09/548,357 (the “‘357 application”), filed by Zeitels on April 12, 2000, which was abandoned. 53. As with the ‘830 patent, Zeitels did not inform DeVona that he had filed the ‘793

application, the ‘357 application, or the ‘256 application. Unlike the ‘830 patent, however, Zeitels never informed DeVona of the issuance of the’645 patent, which matured from the ‘256 application. In fact, DeVona did not learn about the ‘645 patent until 2012. 54. In each the ‘793 application, the ‘357 application, and the ‘256 application,

Zeitels falsely claimed that he is the sole inventor of the subject matter claimed in the application. 55. DeVona contributed to the conception of one or more of the inventions claimed in

the ‘645 patent and is thus a co-inventor. In particular, the ‘645 patent claims DeVona’s detachable baseplate design incorporating channels for removable light and suction cannulae. (A true and accurate copy of the ‘645 patent is attached as Exhibit 1.)

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I.

Zeitels’ Disclosure Of A Patent Application And The DeVona-Zeitels Business’s Sales Of The Glottiscope 56. In or around December 1999, DeVona sold the first glottiscope for the DeVona-

Zeitels Business. At this point, however, the business had yet to generate a profit. 57. From 2000 through 2002, DeVona continued to address production issues and to

refine the glottiscope design and manufacturing and assembly process. DeVona developed a unique glottiscope manufacturing and assembly process. Sales were modest. 58. In or around March 2002, during a medical meeting in Malaga, Spain, Zeitels

informed DeVona that he had filed a patent application (i.e., the ‘256 application) covering DeVona’s inventions, and that Zeitels had done so in his name alone. Zeitels did not, however, inform DeVona that he had in fact surreptitiously filed two prior patent applications based upon DeVona’s design conceptions. When Zeitels filed the two prior applications, DeVona had not yet fully developed his base plate design; DeVona was still refining and testing design solutions during the pendency of the prior applications. 59. When DeVona confronted Zeitels about not being named as an inventor, Zeitels

initially insisted that the patent, like Endocraft, LLC and the ‘830 patent, needed to be in his name alone for business reasons. Ultimately, Zeitels acknowledged DeVona’s status as coinventor and agreed to file the necessary paperwork to correct the error in omitting DeVona as a co-inventor in the application. 60. At some point in 2002 or 2003, DeVona suggested to Zeitels that the DeVona-

Zeitels Business design and sell an enhanced, heavy duty glottiscope suspension device, which is an adjustable device that suspends the glottiscope and allows the surgeon to use both hands when performing laryngoscopic procedures (“the Suspension Device”). DeVona and Zeitels collaborated on the goals of the Suspension Device’s gearbox and lifting bar; DeVona 13

independently conceived of and designed the Suspension Device’s gearbox. The Suspension Device represented a marked improvement over other suspension devices then in the market. The DeVona-Zeitels Business began selling the Suspension Device in tandem with the glottiscope. The business’s sales increased substantially. 61. During 2003, 2004 and 2005, the DeVona-Zeitels Business continued selling the

glottiscope, refining the glottiscope design with each production lot. Throughout this period, Zeitels distributed to himself large amounts of cash from the business’s revenue to, according to him, recoup the capital contributions he had previously made to the business. 62. In and around 2006, the DeVona-Zeitels Business became cash flow positive. By

this point, Zeitels had recouped much of his initial capital contributions. DeVona and Zeitels began splitting the profits on a 50% - 50% basis, and later according to the agreed upon 60% 40% split. 63. During a conversation in 2006 or 2007, Zeitels and DeVona discussed a

promising scientifically engineered vocal cord gel being developed by Zeitels. According to Zeitels, the gel represented an opportunity for significant commercial success for their business. Zeitels explained that the glottiscope would serve as part of the delivery system for introducing the gel. Thus, as Zeitels explained, whoever bought the gel (with his name on it) would likely also buy their glottiscope (also with his name on it). Zeitels further explained that he and DeVona would likely be able to bundle and sell their business and its intellectual property to whoever bought the rights to the gel. According to Zeitels, the gel would significantly increase the sales value of their business. 64. From 2006 through the latter part of 2011, the DeVona-Zeitels Business

continued selling the glottiscope. Sales began to steadily increase over this time. Profits were

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split on the agreed upon 60% - 40% basis; however, Zeitels controlled the distributions and he made payments to DeVona infrequently. 65. In marketing and selling the glottiscope system over the years, Endocraft, LLC’s

promotional materials emphasized the unique placement of the removable light and suction cannulae within the detachable baseplate. J. DeVona Is Named Endocraft, LLC’s Manager 66. In November 2006, Zeitels, purportedly in his capacity as Endocraft, LLC’s sole

member, named DeVona as Endocraft, LLC’s manager. 67. On December, 11 2007, Endocraft, LLC’s Articles of Organization was amended

to provide that Endocraft, LLC was to be managed by DeVona. 68. The annual reports for Endocraft, LLC filed for years 2008, 2009, 2010 and 2011

listed DeVona as manager. K. Zeitels’ Unlawful Ousting Of DeVona From The DeVona-Zeitels Business And Other Unlawful Conduct 69. With the successful glottiscope design and increasing sales, the DeVona-Zeitels

Business experienced steady and increased profitability over the years. Zeitels, however, was not content to continue to share in the management and control of the business going forward. Rather, Zeitels engaged in a campaign to oust or bar DeVona from operating the DeVona-Zeitels Business and to usurp its assets and profits. Chief among those assets are Endocraft, LLC and the ‘830 and ‘645 patents. 70. In addition, Zeitels misappropriated other intellectual property and profits of the

business. Specifically, Zeitels misappropriated a laser sheath device and anesthesia spray device, each of which DeVona independently conceived of and created for the business and which constitute partnership property. On information and belief, each of these devices was used or is 15

currently being used by Zeitels and/or Massachusetts General Hospital. Zeitels also usurped a business opportunity and partnership asset in the form of the scientifically engineered vocal cord gel, which, on information and belief, is in clinical trials. 71. Zeitels carried out his unlawful campaign using a variety of means over an

extended period of time, while at the same time committing to DeVona that he would continue to share in the management and control of the partnership. Ultimately, Zeitels excluded DeVona from participation in the management and control of the partnership, refused to recognize DeVona’s interest in the partnership properties, is now attempting to deprive DeVona of all interest in the partnership and to appropriate the properties, proceeds, and profits to his own use, and otherwise engaged in the partnership in bad faith. 72. At a meeting on October 22, 2011, Zeitels effectuated DeVona’s ouster from the

DeVona-Zeitels Business. Ostensibly, the purpose of the meeting was to document DeVona’s partnership with Zeitels in writing. DeVona had pleaded with Zeitels to arrange this meeting since around July 2011; Zeitels strung DeVona along for months. Only a few days prior to the scheduled meeting, Zeitels withdrew all funds from Endocraft, LLC’s bank account, on which DeVona is co-owner. Zeitels e-mailed DeVona informing DeVona that Zeitels was ending the business. DeVona insisted on keeping the meeting. At the meeting, Zeitels and his lawyer, Norman G. Orodenker (“Orodenker”), informed DeVona that, notwithstanding the fact that DeVona is a partner in the DeVona-Zeitels Business and inventor of its intellectual property, DeVona had four to six weeks to close the instrumentality of their partnership, Endocraft, LLC, sell off inventory and collect monies owed. 73. Approximately five days later, however, Zeitels attempted to remove the

partnership’s books and records and take over its stock, equipment and operation, which by that

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time DeVona was running from Florida. DeVona initially resisted this effort, acceding to Zeitels’ strong-arm tactics one week later. 74. On November 2, 2011, Endocraft, LLC’s Articles of Organization was amended

to provide that Endocraft, LLC was to be managed by its “Member.” 75. Zeitels sent an undated letter toward the end of November 2011. The letter, sent

by Orodenker as counsel to Endocraft, LLC, stated: As you are aware, this office represents Endocraft, LLC (“Company”). In that capacity I have been asked by the sole member of the LLC to advise you that the Company has terminated your employment with the Company. At our meeting in my office on 10/22/11 the sole member of the LLC, Dr. Steven Zeitels, made it clear that the purpose of that meeting was to advise you that as of that date your service to the company was terminated effective on that date. 76. The assertion that DeVona was merely an “employee” of Endocraft, LLC is

wrong. It ignores DeVona’s partnership with Zeitels dating back at least fourteen years. It ignores the fact that DeVona single handedly ran the day-to-day business of the DeVona-Zeitels Business since its formation in 1997 and contributed valuable intellectual property. This assertion also ignores the fact that DeVona contributed 40% of the money used to purchase the equipment and stock of the business and to pay for the development costs of the business. From that point forward, Zeitels prevented DeVona from having full access to the partnership’s accounts, books and records, which, accordingly, hindered DeVona’s ability to conduct partnership business. Zeitels unlawfully orchestrated DeVona’s “termination.” 77. As of November 2011, DeVona was still trying to finalize unfinished business

and facilitate current operations for the DeVona-Zeitels Business, even while Zeitels prevented DeVona’s access to the business. Concomitantly, Zeitels neglected current business and usurped

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partnership assets and profits. Zeitels deprived DeVona from distributions and assets of the business they had jointly built over approximately the past fourteen years. 78. Since approximately October 22, 2011, Zeitels: a. prevented DeVona from participating in the management of the DeVona-Zeitels Business, including Endocraft, LLC; b. prevented DeVona from having full access to or inspecting the books and records of the DeVona-Zeitels Business, including Endocraft, LLC; c. refused to provide DeVona full information of all things affecting the DeVonaZeitels Business, including Endocraft, LLC; and/or d. refused to provide DeVona with an accounting of the business operations of the DeVona-Zeitels Business, including Endocraft, LLC. 79. There has been no winding-up of the DeVona-Zeitels Business. Zeitels

continued to operate the DeVona-Zeitels Business following DeVona’s expulsion, while employing assets Zeitels misappropriated from the partnership. 80. Based on his willful and intentional conduct, Zeitels deprived DeVona of his 40%

ownership interest in the DeVona-Zeitels Business and its assets and opportunities, including but not limited to the value of: the ‘830 patent, the ‘645 patent, Endocraft, LLC, DeVona’s manufacturing processes, the scientifically engineered vocal cord gel, and the laser sheath and anesthesia spray devices. COUNT I Correction of Inventorship of U.S. Patent No. 6,955,645 (35 U.S.C. § 256) 81. DeVona realleges and incorporates by reference the allegations in the preceding

paragraphs as if fully set forth herein. 82. The inventorship of the ‘645 patent is incorrect because through omission,

inadvertence and/or error, DeVona is not listed as an inventor on the ‘645 patent. 18

83.

DeVona made independent conceptual contributions to the inventions claimed in

the ‘645 patent by conceiving of, solely or in collaboration with one or more of the named inventors of the ‘645 patent, significant aspects of the claimed inventions. 84. The omission of DeVona as an inventor on the ‘645 patent occurred without any

deceptive intent on the part of DeVona. 85. All parties concerned with the inventorship of the ‘645 patent for which

correction of inventorship is sought have been put on notice or will be put on notice pursuant to filing and service of this Complaint. 86. DeVona has been damaged thereby. COUNT II Declaratory, Equitable and Monetary Relief Under the Rhode Island Uniform Partnership Act (R.I. Gen. Laws § 7-12-1 et seq.) 87. DeVona realleges and incorporates by reference the allegations in the preceding

paragraphs as if fully set forth herein. 88. In 1997, DeVona and Zeitels mutually and voluntarily agreed to associate with

each other to carry on, as co-owners for profit, the DeVona-Zeitels Business. 89. In so doing, DeVona and Zeitels each contributed capital and services to their

association. Also, DeVona and Zeitels later used a corporate form, Endocraft, LLC, as the instrumentality of their common enterprise. 90. 91. 92. DeVona and Zeitels controlled the DeVona-Zeitels Business. DeVona and Zeitels agreed to split all profits from the DeVona-Zeitels Business. DeVona and Zeitels did not associate with each other to engage in a single

business transaction.

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93.

Disputes have arisen between DeVona and Zeitels that are serious, irreconcilable,

and permanent and in effect destroy all confidence between them and make successful operation of the DeVona-Zeitels Business impossible. 94. In addition, an active controversy has arisen and now exists between DeVona and

Zeitels concerning Zeitels’ wrongful conduct, including his ousting of DeVona from their partnership and wrongful dominion over partnership property and business. 95. 96. DeVona has no adequate remedy at law. DeVona seeks a judicial declaration of the parties’ rights and responsibilities. COUNT III Breach of Fiduciary Duty 97. DeVona realleges and incorporates by reference the allegations in the preceding

paragraphs as if fully set forth herein. 98. DeVona. 99. 100. Zeitels breached his fiduciary duties by engaging in the conduct set forth herein. As a proximate and legal result of Zeitels’ breaches of fiduciary duties, DeVona As a partner in the DeVona-Zeitels Business, Zeitels owed fiduciary duties to

has been damaged and continues to be damaged. 101. Zeitels’ acts, as alleged herein, were willful, wanton, malicious, and oppressive. COUNT IV Breach of Contract 102. DeVona realleges and incorporates by reference the allegations in the preceding

paragraphs as if fully set forth herein. 103. As set forth above, DeVona and Zeitels entered into an agreement with respect to

the operation of the DeVona-Zeitels Business. 20

104.

As partners in the DeVona-Zeitels Business, DeVona and Zeitels agreed to share

the assets and profits of the DeVona-Zeitels Business. 105. As set forth above, Zeitels has wrongfully excluded DeVona from the DeVona-

Zeitels Business and has thereby breached the partnership agreement by failing to share profits earned and profits to be earned in the future. 106. As a result of Zeitels’ breaches of contract, DeVona has been damaged thereby. COUNT V Unjust Enrichment 107. DeVona realleges and incorporates by reference the allegations in the preceding

paragraphs as if fully set forth herein. 108. property. 109. Zeitels accepted and retained DeVona’s valuable intellectual property, and used DeVona conferred a benefit on Zeitels by providing him valuable intellectual

the intellectual property to his own advantage and at DeVona’s expense. 110. Zeitels has been and continues to be unjustly enriched by profiting from the

wrongful conduct described herein. In particular, Zeitels has made wrongful use of DeVona’s property by asserting inventorship, refusing to name DeVona as a co-inventor, and deriving an unjust benefit from utilizing these property rights and from commercially exploiting DeVona’s inventions. It would be inequitable for Zeitels to retain these benefits under these circumstances. 111. DeVona has incurred, and continues to incur detriment in the form of loss of

money and property as a result of Zeitels’ wrongful use of DeVona’s intellectual property and intellectual property rights, including the right to any patent based on DeVona’s intellectual property and to any patent documents (including assignment documents), U.S. and foreign that belong to DeVona. The intellectual property and the intellectual property rights, including the 21

right to any patents based on DeVona’s inventions and to any patent documents (including assignment documents), U.S. and foreign, are unique and there is no adequate remedy at law. RELIEF REQUESTED WHEREFORE, DeVona requests that this Court enter judgment in his favor on each Count and against Zeitels and grant the following relief: A. Pursuant to 35 U.S.C. § 256, order the Director of the USPTO to correct inventorship of the ‘645 patent by naming DeVona as a co-inventor; B. Alternatively, order Zeitels to sign the requisite documents to correct inventorship of the ‘645 patent by naming DeVona as a co-inventor; C. Declare that Zeitels is required to name DeVona as a co-inventor of the ‘645 patent and cease his ongoing violations of federal patent law; D. Pursuant to 28 U.S.C. § 2202, issue any injunctions necessary to enforce the declaratory judgment requiring Zeitels to name DeVona as a co-inventor of the ‘645 patent and cease his ongoing violations of federal patent law; E. Declare that a partnership existed between DeVona and Zeitels with respect to the DeVona-Zeitels Business, including the operation of Endocraft, LLC; F. Pursuant to R.I. Gen. Laws § 7-12-43, declare that Zeitels wrongfully dissolved the partnership on or before October 22, 2011; G. Pursuant to R.I. Gen. Laws § 7-12-33, order an accounting to determine the value of the partnership, inclusive of all partnership assets and opportunities, at the date of dissolution and post-dissolution; H. Pursuant to R.I. Gen. Laws § 7-12-48, appoint DeVona to wind-up all partnership affairs;

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I.

Pursuant to R.I. Gen. Laws § 7-12-49, award DeVona damages arising from Zeitels’ wrongful conduct;

J.

Pursuant to R.I. Gen. Laws § 7-12-51, appoint DeVona to settle the partners’ accounts and distribute any remaining monies between them, subject to the appropriate reduction to Zeitels’ proportional share arising from DeVona’s damages;

K. L. M. N.

Award DeVona compensatory, exemplary and punitive damages; Award DeVona prejudgment interest according to proof; Award DeVona his costs, expenses, and attorneys’ fees; and Award such other and further relief, including equitable relief, as the Court deems just and appropriate. DEMAND FOR JURY TRIAL DeVona hereby demands a trial by jury on all issues so triable in this action.

Respectfully submitted, DENNIS R. DEVONA, By his Attorneys,

/s/ Craig M. Scott Craig M. Scott, Esq. (#556210) Eric E. Renner, Esq. (#666710) Scott & Bush Ltd. One Turks Head Place, Fourth Floor Providence, RI 02903 (401) 865-6035 Phone (401) 865-6039 Fax cscott@scottbushlaw.com erenner@scottbushlaw.com Dated: April 17, 2013

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