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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.
PARTIES 2. Complete Nutrition is a Nebraska corporation with its principal place of business
in Omaha, Nebraska. 3. 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 Vireo is a Tennessee corporation with its principal place of business in Madison,
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
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
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.”
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.
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. c. declaring that the claims of the ‘450 patent are invalid; holding this case to be exceptional and awarding Complete Nutrition its attorneys’ fees under 35 U.S.C. § 285; f. g. awarding Complete Nutrition its costs pursuant to Rule 54(d), Fed. R. Civ. P.; and 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 firstname.lastname@example.org Attorneys for Plaintiff Complete Nutrition Holdings, Inc.
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
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