Complaint - MedIdea v. Zimmer

8/8/2019 Complaint - MedIdea v. Zimmer

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its principal place of business at 1800 West Center Street, Warsaw, Indiana 46581, and is doingbusiness in this judicial district and is engaged in the business of selling femoral prosthesis' used

by orthopaedic surgeons, from which it generates substantial revenue.4. Defendant, ZIMMER US, INC., is a subsidiary of ZIMMER HOLDINGS,

INC., and is, on information and belief, a company established under the laws of Delaware, withits principal place of business at 1800 West Center Street, Warsaw, Indiana 46581, and is doingbusiness in this judicial district and is engaged in the business of selling femoral prosthesis' usedby orthopaedic surgeons, from which it generates substantial revenue. Defendants ZIMMERHOLDINGS, INC.; ZIMMER, INC.; and ZIMMER US, INC. are hereafter collectively referredto as "ZIMMER".

II.

Jurisdiction and Venue

5. This Court has jurisdiction over the subject matter of this action under 28US.C. "1331 and 1338(a) because this action arises under the Patent Laws of the UnitedStates, 35 US.C. '1, et seq.

6 . Venue properly lies in the Eastern District of Texas pursuant to 28 US. C., 1391(b) and (c) because a substantial part of the events giving rise to these claims occurred inthis District, MEDIDEA maintains a principle place of business in this district, and ZIMMER ISsubject to personal jurisdiction in this District.

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III.Claims Related to Hip Patents

7. MEDIDEA is the owner of United States Patent Number 6,200,350 (the"'350 Patent"). A True and correct copy of the Patent as issued is attached hereto as Exhibit A.

8. MEDIDEA is the owner of United States Patent Number 6,383,225 (the"'225 Patent"). A True and correct copy of the Patent as issued is attached hereto as Exhibit B.

9. The '350 Patent and the '225 Patent (collectively "the Hip Patents") arethe result of pioneering research and development conducted in the field, among other areas, ofproximal femoral prosthesis. The inventions disclosed by the Hip Patents have beenincorporated by ZIMMER into its product lines, such as, for example, in its MIL Taper HipProsthesis with Kinectiv Technology.

10. It has been reported by ZIMMER that it generated over $1 billion dollarsin 2004 in revenue related to the sale of hip prosthesis products alone.

11. ZIMMER has been infringing the Hip Patents by selling femoralprosthesis' with structures that are covered by and claimed in the Hip Patents in violation of35U.S.C. 271, with resultant damage to MEDIDEA.

12. ZIMMER, with actual knowledge of the Hip Patents, with knowledge oftheir infringement and without lawful justification, has willfully and deliberately infringed theHip Patents.



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IV.

Claims Related to Shoulder Patents

13. MEDIDEA is the owner of United States Patent Number 6,267,785 ("the'785 Patent"). A True and correct copy of the Patent as issued is attached hereto as Exhibit C.

14. MEDIDEA is the owner of United States Patent Number 6,379,391 ("the'391 Patent"). A True and correct copy of the Patent as issued is attached hereto as Exhibit D.

15. MEDIDEA is the owner of United States Patent Number 6,398,812 ("the'812 Patent"). A True and correct copy of the Patent as issued is attached hereto as Exhibit E

16. MEDIDEA is the owner of United States Patent Number 6,821,300 ("the'300 Patent"). A True and correct copy of the Patent as issued is attached hereto as Exhibit F.

17. MEDIDEA is the owner of United States Patent Number 7,229,478 ("the,478 Patent"). A True and correct copy of the Patent as issued is attached hereto as Exhibit G.

18. The "785 Patent, the '391 Patent, the '812 Patent, the '300 Patent, and the'478 Patent (collectively "the Shoulder Patents") are the result of pioneering research anddevelopment conducted in the field, among other areas, of the proper position of a prostheticshoulder implant. The inventions disclosed by the Shoulder Patents have been incorporated byZIMMER into its product lines, such as, for example, in its Anatomical Shoulder FractureSystem.

19. It has been reported by ZIMMER that it has generated substantial revenuerelated to the sale of shoulder prosthesis products.

20. ZIMMER has been infringing the Shoulder Patents by selling shoulderprosthesis' with structures that are covered by and claimed in the Shoulder Patents in violation of35 U.S.C. 271, with resultant damage to MEDIDEA.



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21. ZIMMER, with actual knowledge of the Shoulder Patents, withknowledge of their infringement and without lawful justification, has willfully and deliberately

infringed the Shoulder Patents.v.

ReliefWHEREFORE, the Plaintiff, MEDIDEA, L.L.C., prays:(a) for the entry of judgment holding that the Hip Patents and the Shoulder

Patents are good and valid in law, and to have been willfully and deliberately infringed by theDefendants;

(b) for a preliminary and injunction preventing the Defendants fromcommitting any further act of infringement;

(c) for a judgment that this cause is "exceptional" in the sense of 35 U.S.C.285 and that MEDIDEA is entitled to an award of its reasonable attorneys' fees in theprosecution of its action;

(d) for an award of damages adequately to compensate MEDIDEA for thepast infringement of the Hip Patents and the Shoulder Patents by the Defendants, together withinterest and costs as fixed by the Court, such damages to be trebled because of the willful anddeliberate character of the infringement; and

(e) such other relief as the Court deems proper and just.



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VI.

DEMAND FOR JURY TIDAL

Pursuant to Federal Rules of Civil Procedure Rule 38, Plaintiff MedIdea hereby demandsa jury trial on all issues triable by jury.

Dated: August 26, 2009

OF COUNSEL:

Joseph M. VanekIL State Bar No. 6197046Thomas A. VickersIL State Bar No. 6226288Jeffrey R. MoranIL State Bar No. 6283573VANEK, VICKERS &MASINI, P.C.III S. Wacker Drive, Suite 4050Chicago, Illinois 60606Telephone: (312) 224-1500Facsimile: (312) 224-1510E-mail: [email protected]: [email protected]: [email protected]

Respectfully submitted,lsi S. Calvin CapshawS. Calvin CapshawState Bar No. 03873900Elizabeth L. DeRieuxState Bar No. 05770585D. Jeffrey RambinState Bar No. 00791478CAPSHAW DeRIEUX, LLP1127 Judson Road, Suite 220P.O. Box 3999Longview, TX 75601-5157Telephone: (903) 236-9800Facsimile: (903) 236-8787E-mail: [email protected]: [email protected]: [email protected]



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Eugene M. CummingsIL State Bar No. 556394David M. MundtIL State Bar No. 6243545Martin GoeringIL State Bar No. 6286254Konrad V. SherinianIL State Bar No. 6290749THE LAW OFFICES OFEUGENE M. CUMMINGS, P.C.One North Wacker Drive, Suite 4130Chicago, Illinois 60606Telephone: (312) 984-0144Facsimile: (312) 984-0146E-mail: [email protected]: [email protected]: [email protected]: [email protected]

Attorneys for Plaintiff Medldea, LLC



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S 44 (Rev, 12/07) CIVIL COVER SHEEThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the fil ing and service of pleadings or other papers as required by law, except as providlocal rules of court This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiate civil docket sheet (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM,)

Zimmer Holdings, Inc., et al(a) PLAINTIFFS DEFENDANTSMedldea, LLC(b) County of Residence of First Lis ted Plaint iff

(EXCEPT INUS PLAINTIFF CASES)County of Residence of First Listed Defendant

(IN U,S, PLAINTIFF CASES ONLY)NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

LAND INVOLVED,

(c) Attorney's (Firm Name, Address. and TeleJ2QoneNumber)S. Calvin Capshaw, Capshaw DeKieux, LLP,1127 Judson Road, Suite 220, Longview, TX 75601903 236-9800

Attorneys (If Known)

2 U.S. GovernmeutDefendant

o 4 Diversity(Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Pla(For Diversity Cases Only) and One Box for Defendant)

PTF DEF PTF DCitizen of This State 0 1 0 1 Incorporated or Principal Place 0 4 0

of Business In This S ta te

. BASIS OF JURISDICTION (Place an "X" in One Box Only)1 U.S. Governmeut

Plaintiffl!!I 3 Federal Question

(US Government Not a Party)

Citizen of Another State o 2 o 2 Incorporated and Principal Placeof Business In Another S ta te

Cit izen or Subject o f aForcizn Country

Foreign Nation o 6. NATURE OF SUIT (Place an rX't in One Box Onlv)

TORTS (\TlI1i'l>110 Insurance PERSONAL INJURY PERSONAL INJURY 0 610 Agriculture 0 422 Appeal 28 USC 158 0 400 State Reapportionment120 Marine 0 310 Airplane 0 362 Personal Injury - 0 620 Other Food & Drug 0 423 Withdrawal 0 410 Antitrust130 Miller Act 0 315 Airplane Product Med. Malpractice 0 625 Drug Related Seizure 28 USC 157 0 430 Banks and Banking140 Negotiable Instrument Liability 0 365 Personal Injury - of Property 21 USC 881 0 450 Commerce150Recovery of Overpayment 0 320 Assault . Libel & Product Liability 0 630 Liquor Laws b=P~R~O~P~E;;'R;';-';T~Y';"'/RI='~:'":'H;;:T;::S';""""""10 460 Deportation

&EnforcementofIudgment Slander 0 368 Asbestos Personal 0 640 RR, & Truck 0 820 Copyrights 0 470 Racketeer Inl1uenced151 Medicare Act 0 330 Federal Employers' Injury Product 0 650 Airline Regs, l!!I 830 Patent Corrupt Organization152 Recovery of Defaulted Liability Liability 0 660 Occupational 0 840 Trademark 0 480 Consumer Credit

Student Loans 0 340 Marine PERSONAL PROPERTY Safety/Health 0 490 Cable/Sat TV(Excl. Veterans) 0 345 Marine Product 0 370 Other Fraud n 690 Other n 810 Selective Service

153 Recovery of Overpayment Liability 0 371 Truth in Lending ~ ~ $ ~ ~ ~ ' A ~ \ .H i il l ( 0 1 B E R = = = = = = = = ~ ~ s ~ ( [) ~ ( r ~ A I ~ ~ ~ ~ r :x = = = = q c o50 Securities/Commoditiof Veteran' s Benefits 0 350 Motor Vehicle 0 380 Other Personal 0 710 Fair Labor Standards 0 861 HIA (l395l1) Exchange

160 Stockholders' Suits 0 355 Motor Vehicle Property Damage Act 0 862 Black Lung (923) 0 875 Customer Challenge190 Other Contract Product Liability 0 385 Property Damage 0 720 Labor/Mgmt. Relations 0 863 DIWClDIWW (405(g 12 USC 3410195 Contract Product Liability 0 360 Other Personal Product Liability 0 730 Labor/Mgmt.Reporting 0 864 ssm Title XVI 0 890 Other Statutory Actio196 Franchise Injury & Disclosure Act 0 865 RSI (405(g 0 891 Agricultural Acts

:,.P;:.:E:!;R~T"'Y:....::==F::,==C...:f\;:.l,.:.IL:.:...:RI;:,::",G.:.:HT..,:,.:...,:.:S;,..=4:?-P:!;RI:,::',:.:S.:;;O:.:.N:.:E",R...:...:P...:.E",T:.;IT~'...:I",O:;,N.:.:S;:.""'I040 Railway Labor Act F"":'FE"'"'D;':E"'Ri"':-i\; ':L":ri'iAX"'.~""S"'t"'II"'T"'S"..---1092 Economic Stabilizati210 Land Condemnation 0 441 Voting 0 510 Motions to Vacate 0 790 Other Labor Litigation 0 870 Taxes (US Plaintiff 0 893 Environmental Matt220 Foreclosure 0 442 Employment Sentence 0 791 Empl, Ret Inc, or Defendant) 0 894 Energv Allocation A230 Rent Lease & Ejectment 0 443 Housing Habeas Corpus: Security Act 0 871 IRS-Third Party 0 895 Freedom ofInformatio240 Torts to Land Accommodations 0 530 General 26 USC 7609 Act245 Tort Product Liability 0 444 Wel:lre 0 535 Death Penalty 0 900Appeal of Fee Determ290 All Other Real Property 0 445 Amer. w.Disabilities - 0 540 Mandamus & Other 0 462 Naturalization Application Under Equal Access

Emplovment 0 550 Civil Rights 0 463 Habeas Corpus - to Justiceo 446 Amer. w.Disabilities - 0 555 Prison Condition Alien Detainee 0 950 Constitutionality ofOther 0 465 Other Immigration State Statuteso 440 Other Civil Rights Actions

. ORIGINOriginalProceeding

(Place an"X" inOne Box Only)o 2 Removed from 0 3State Court

Remanded fromAppellate Court O 4 Reinstated or 0 5 Transferred from 0 6 Multidistrictanother district ~Reopened s ecif Litigation o 7

Appeal to DJudge fromMagistrateJud nent

I. CAUSE OF ACTIONCite the Ll.S. Civil Statute under which you are filing35 U.S.C. 271

(Do not cite jurisdictional statutes unless diversity):Brief description of cause:Patent Infrin ement

II. REQUESTED INCOMPLAINT:

o CHECK IF THIS IS A CLASS ACTIONUNDER F.R,C.P, 23

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: ~ Yes nNo

III. RELATED CASE(S)IF ANY (See instructions): JUDGE DOCKET NUMBER

ATE SIGNATURE OF ATTORNEY OF RECORD08/26/2009 /s/ S. Calvin Capshaw

R OFFICE USE ONLY

RECEIPT AMOUNT APPLYING IFP JUDGE MAG. JUDGE


08/26/2009


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Documents

Complaint - MedIdea v. Zimmer