IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS CONAGRA FOODS FOOD INGREDIENTS COMPANY, INCORPORATED;

Plaintiff, v. ARCHER-DANIELS-MIDLAND COMPANY ) ) ) ) ) ) ) ) ) ) )

Case No. 12-cv-2171 SAC/KGS

JURY TRIAL DEMANDED

Defendant. _________________________________________)

COMPLAINT Plaintiff ConAgra Foods Food Ingredients Company, Incorporated complains as follows against defendant Archer Daniels Midland Company. PARTIES 1. Plaintiff ConAgra Foods Food Ingredients Company, Incorporated (ConAgra)

is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business at One ConAgra Drive, Omaha, Nebraska 68102. 2. On information and belief, defendant Archer Daniels Midland Company

(ADM) is a corporation registered to do business in the State of Kansas, and organized and existing under the laws of the State of Delaware, with its principal place of business at 4666 Faries Parkway, Decatur, Illinois 62526. ADM can be served through its registered agent, The Corporation Company, Inc., 112 Southwest 7th Street, Suite 3C, Topeka, Kansas 66603. JURISDICTION AND VENUE 3. This is an action for patent infringement under the United States Patent Laws, 35

U.S.C. 271, et seq. This Court has subject matter jurisdiction over this action under 28 U.S.C. 1331 and 1338(a).
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4. 1400(b). 5.

Venue is proper in this District pursuant to 28 U.S.C. 1391(b) and (c), and

ADM conducts business in this Judicial District, maintains a regular and

established place of business in this Judicial District, and has committed acts of patent infringement in this Judicial District including, inter alia, making, using, offering for sale, and/or selling infringing products, including but not limited to Kansas Diamond White Whole Wheat Flour, in this Judicial District. FACTUAL BACKGROUND 6. ConAgra, first established as a collection of several Nebraska mills in 1919, has

built itself today into one of the North Americas largest food companies, manufacturing and marketing foods for 97% of the American households and commercial food service customers. ConAgra is a leader in the grain industry and one of the largest millers in North America, providing innovative ingredients and solutions that drive demand for grain-based foods and healthier ingredients. ConAgra continually strives to bring solutions to its customers needs, and works tirelessly to develop new products that combine expertise and cutting edge innovation to bring nutritious, flavorsome products to its customers. 7. In the late 1990s, ConAgras leading food scientists and grain millers attempted

to develop nutritious, high fiber whole wheat food products with the palatable appeal and popularity of refined, or white, flour that draw a large segment of ConAgras customers. Further, ConAgra sought to develop refined flour capable of meeting the definition of whole wheat flour pursuant to 21 C.F.R. 137.200. Through years of testing, development, and

technological improvement of its state-of-the-art flour mills, ConAgra succeeded in milling a

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whole grain not only retaining its traditional nutrients and benefits, but also containing the texture, taste, and finished baked qualities of refined flour. 8. To preserve this new innovation in food production, ConAgra promptly sought

patent protection. THE PATENT-IN-SUIT 9. ConAgra is the owner by assignment of all right, title, and interest in and to

United States Patent No. 8,017,172 (the 172 patent), entitled Whole Grain Flour and Products Including the Same, which duly and legally issued in the name of ConAgra Foods Food Ingredients Company, Incorporated on September 13, 2011. A true and correct copy of the 172 patent is attached as Exhibit A. 10. ConAgra has the sole and exclusive right to manufacture, use, sell, and offer for

sale, the technology covered by the 172 patent, as well as the sole and exclusive right to enforce the 172 patent against infringers and to recover damages resulting from the same. ADM 11. Upon information and belief, ADM is the second largest agribusiness company in

the world, processing one of the three largest crops in the United States wheat as well as operating one of the worlds largest crop origination and transportation networks. 12. 13. 2011. 14. In a September 22, 2011 e-mail communication between representatives of ADM has had constructive knowledge of the 172 patent since it issued. ADM has had actual knowledge of the 172 patent since at least September 22,

ConAgra and ADM, ConAgra informed ADM of the 172 patent and ConAgras willingness to engage in a licensing arrangement with ADM.

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15.

Upon information and belief, ADMs white whole wheat products, including but

not limited to Kansas Diamond White Whole Wheat Flour, embody, use, and incorporate the inventions claimed in the 172 patent, and are covered by one or more claims of the same. Accordingly, the manufacture, use, offer for sale, and/or sale of ADMs white whole wheat products constitute infringement of the 172 patent literally, or under the doctrine of equivalents. 16. Upon information and belief, ADM has made, used, offered to sell, and/or sold,

and continues to make, use, offer to sell, and/or sell white whole wheat products, including but not limited to Kansas Diamond White Whole Wheat Flour, without ConAgras permission. COUNT I PATENT INFRINGEMENT Infringement of the 172 patent 17. above. 18. Upon information and belief, ADM has been, and currently is, directly infringing ConAgra incorporates by reference the allegations contained in paragraphs 1-16

the 172 patent by making, using, selling, offering for sale, white whole wheat products, including Kansas Diamond White Whole Wheat Flour, and is therefore liable for infringement under 35 U.S.C. 271(a). 19. Upon information and belief and based on the allegations contained in this

Complaint, ADMs infringement of the 172 patent has been and continues to be willful and deliberate. 20. Upon information and belief, ADMs infringement of the 172 patent will

continue unless enjoined by this Court. 21. As a direct and proximate cause of ADMs infringement of the 172 patent,

ConAgra has suffered and will continue to suffer irreparable injury for which there is no

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adequate remedy at law, and for which ConAgra is entitled to injunctive relief pursuant to 35 U.S.C. 283, and has and will incur damages in an amount not yet determined for which ConAgra is entitled to relief. PRAYER FOR RELIEF Wherefore, ConAgra requests entry of judgment in its favor and against ADM as follows: A. B. Enter judgment that ADM has infringed the 172 patent; Enter a preliminary and/or permanent injunction restraining and enjoining ADM,

and its respective officers, agents, servants, employees, attorneys, and those persons in active concert or participation with ADM who receive actual notice of the order by personal service or otherwise, from any further sales or use of its infringing products and any other infringement of the 172 patent; C. For damages to compensate ConAgra for ADMs infringement of the 172 patent

pursuant to 35 U.S.C. 284; D. E. For enhanced damages, pursuant to 35 U.S.C. 284; For an award of pre-judgment and post-judgment interest and costs to ConAgra in

accordance with 35 U.S.C. 284; F. 285; and G. For such other and further relief as the Court may deem just, proper, and equitable For an award of ConAgras reasonable attorneys fees pursuant to 35 U.S.C.

under the circumstances. DEMAND FOR A JURY TRIAL ConAgra respectfully demands a trial by jury on all claims and issues so triable.

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DESIGNATION OF PLACE OF TRIAL ConAgra designates Kansas City, Kansas as place of trial, pursuant to Local Rule 40.2.

Dated: March 21, 2012

Respectfully Submitted,

__/s/ B. Trent Webb___________________ B. Trent Webb SHOOK, HARDY & BACON L.L.P. B. Trent Webb (KS Bar No. 15965) Peter C. Knops (to be admitted pro hac vice) Lynn C. Herndon (to be admitted pro hac vice) 2555 Grand Boulevard Kansas City, Missouri 64108-2613 816-474-6550 Telephone 816-421-5547 Facsimile Attorneys for Plaintiff ConAgra Foods Food Ingredients Co., Inc.

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