.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION CALDERA PHARMACEUTICALS, INC., Plaintiff, vs. LOS ALAMOS NATIONAL SECURITY, L.L.C.; UCHICAGO ARGONNE, L.L.C.; EDEL MINOGUE; GEORGE HAVRILLA; DUNCAN MCBRANCH; LAURA BARBER; SAM BORKOWSKY and BRUCE COTTRELL, Defendants. COMPLAINT Plaintiff, CALDERA PHARMACEUTICALS, INC., by its attorneys, Dean A. Dickie, James W. McConkey and Kathleen E. Koppenhoefer, for its Complaint against Defendants, LOS ALAMOS NATIONAL SECURITY, L.L.C; UCHICAGO ARGONNE, L.L.C.; EDEL MINOGUE; GEORGE HAVRILLA; DUNCAN MCBRANCH; LAURA BARBER; SAM BORKOWSKY and BRUCE COTTRELL, states as follows: INTRODUCTION 1. Caldera Pharmaceuticals, Inc. (Caldera or Plaintiff) brings this action against Jury Trial Demanded Civil Action No. 10-cv-10-6347

Defendants Los Alamos National Security, L.L.C. (LANS), UChicago Argonne, L.L.C. (Argonne), Edel Minogue (Minogue), George Havrilla (Havrilla), Duncan McBranch (McBranch), Laura Barber (Barber), Sam Borkowksy (Borkowsky) and Bruce Cottrell (Cottrell) (collectively, the Defendants) for breach of contract, fraud, intentional interference with contractual relations, legal malpractice and other related claims.

2.

On or about September 8, 2005, Plaintiff Caldera and non-party the Regents of

the University of California (Regents) entered into a patent licensing agreement (License Agreement) that granted Caldera an exclusive license in certain patent rights. These patent rights related to a method for detecting binding constraints using micro x-ray fluorescence. 3. Regents made several representations and promises in the License Agreement that

were critical to Calderas decision to sign the License Agreement. Regents represented that it was the lawful owner of the patent rights covered by the agreement. Regents promised to prosecute and maintain these patent rights and to notify Caldera if it decided to abandon them. By doing so it agreed to give Caldera the opportunity to assume the responsibility for the prosecution of any patents that Regents wished to abandon. Regents granted Caldera an

exclusive license in the patent rights, meaning that Caldera was the only entity that could make, have made, use, import, sell and offer to sell, and have sold any of the licensed products or services for commercial purposes. 4. Each of these representations proved to be false. Regents was not the lawful

owner of two of the most important patents. Regents had no intention of maintaining and prosecuting the patents and patent applications. Regents had no intention of honoring the License Agreement or granting Caldera any exclusive rights. Even though Caldera spent

millions of dollars in fees, royalties and equity payments for its exclusive rights, Regents planned to compete with Caldera and to work with Calderas competitors to use and develop Calderas licensed technology. Regents followed through on these plans, causing hundreds of millions of dollars of damages to Caldera in the process. 5. Regents subsequently assigned the License Agreement, and all of the rights and

responsibilities associated with it, to Defendant LANS on or about April 25, 2006.

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6.

Defendants McBranch and Barber strongly encouraged Calderas CEO,

Dr. Benjamin Warner, to sign the License Agreement. They falsely represented to him that Regents was the lawful owner of the patent rights covered by the agreement. They concealed the fact that Regents had no intention of prosecuting and maintaining the patent rights. They also concealed the fact that Regents had every intention of competing with Caldera and working with Calderas competitors. 7. Disgruntled LANS employees Minogue and Havrilla were also determined to see

Caldera fail. They prepared marketing proposals to obtain commercial work to compete with Caldera. They encouraged companies to compete with Caldera. They disclosed Calderas licensed technology to its competitors. They worked with these competitors to develop this licensed technology with the intention of driving Caldera out of business. 8. LANS in-house patent attorneys Borkowsky and Cottrell also erred tortiously

when they breached their professional duties by failing to correct improper patent filings and failing to notify the patent office of adverse prior art, the existence of which affects the patentability of inventions. They breached these duties even though Caldera had notified them of both deficiencies. 9. Finally, Defendant Argonne, in concert with LANS, is currently commercially

using and developing the technology that Regents licensed exclusively to Caldera. 10. As described more fully below, Caldera has suffered and will continue to suffer

substantial damages and irreparable harm as a result of Defendants actions.

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PARTIES 11. Plaintiff Caldera is a Delaware corporation that is organized and existing pursuant

to the laws of the State of Delaware. Caldera has a place of business at 175 West Jackson Street, Suite 2230, Chicago, Illinois 60604. 12. Defendant LANS is a Delaware limited liability company that is organized and

existing pursuant to the laws of the State of Delaware. LANS acts as the manager of the Los Alamos National Laboratory and it conducts business in numerous states, including Illinois. 13. Defendant Argonne is an Illinois limited liability company that is organized and

existing pursuant to the laws of the State of Illinois. Argonne acts as the manager of the Argonne National Laboratory and it conducts business in Illinois. 14. Defendant Minogue is an individual who resides in the state of Rhode Island and

conducts business in numerous states, including Illinois. 15. Defendant Havrilla is an individual who resides in the state of New Mexico and

conducts business in numerous states, including Illinois. 16. Defendant McBranch is an individual who resides in the state of New Mexico and

conducts business in numerous states, including Illinois. 17. Defendant Barber is an individual who resides in the state of New Mexico and

conducts business in numerous states, including Illinois. 18. 19. Defendant Borkowsky is an individual who resides in the state of New Mexico. Defendant Cottrell is an individual who resides in the state of New Mexico. JURISDICTION AND VENUE 20. The matter in controversy in this case exceeds Seventy-Five Thousand Dollars

($75,000) exclusive of interest and costs.

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21.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

1331, 28 U.S.C. 1338, because Calderas theories are based upon substantial rules of patent law, 1 and supplemental jurisdiction under 28 U.S.C. 1367. 22. Jurisdiction and venue are proper in this Court under 28 U.S.C. 1391(b) because

(a) Argonne resides in Illinois; (b) Caldera, LANS, and Argonne conduct business and maintain residences in Illinois; (c) Minogue, Havrilla, McBranch, and Barber have systematic and continuous contacts with the State of Illinois due to their involvement with LANS and Argonne, contacts from which it was foreseeable that the tortious conduct of the defendants would cause damage in Illinois, and (d) because a substantial portion of the events and conduct giving rise to Calderas claims occurred in Illinois. BACKGROUND AND COMMON ALLEGATIONS 23. Plaintiff Caldera was incorporated in November 2003. Its primary business is the

creation of scientific technologies that assist with the design and development of pharmaceutical products and the measurement of drug/protein interactions. 24. In the fall of 2004, Caldera desired to obtain from Regents an option to obtain

certain intellectual property rights for the commercial development, manufacture, use and sale of certain technical information, know-how, data and Patent Rights owned or controlled by [Regents] and relating to a Method for Detecting Binding Constants Using Micro X-Ray Fluorescence (TECHNOLOGY).

On Regents and LANS joint motion, the San Francisco County Superior Court dismissed a complaint filed by Caldera, ruling that the complaint and theory of recovery were based upon substantial rules of patent law, normally a federal question. Caldera has appealed this ruling, taking the position that the dispute over the License Agreement involved quintessential state law causes of action.

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25.

Regents ostensibly wanted the TECHNOLOGY to be developed and utilized to

the fullest extent possible so it was willing to grant the desired option to Caldera. 26. The acquisition of the intellectual property rights to the TECHNOLOGY was

critical to Calderas continued viability and indeed one of the main reasons for the creation of Caldera. Caldera Signs the Option Agreement and License Agreement 27. On or about November 15, 2004, Caldera entered into a written option agreement

(Option Agreement) with Regents that gave Caldera the option to negotiate for an exclusive license agreement under certain PATENT RIGHTS. Attached hereto as Exhibit A is a copy of the Option Agreement. 28. These PATENT RIGHTS were defined as follows: [Regents] rights arising from the U.S. and international patents or applications including any continuing applications, divisionals, and reissues thereof (but not including continuations-in-part), and the patents issuing on applications, identified in Appendix A, incorporated herein by reference.

29.

Regents warranted in Section 11.1 of the Option Agreement that it was the lawful

owner of the PATENT RIGHTS. Section 11.1 of the Option Agreement provided as follows: The University warrants that it is the lawful owner of the PATENT RIGHTS listed in Paragraph 1.2. 30. On or about September 8, 2005, Caldera exercised its option and entered into the

License Agreement with Regents. A copy of the License Agreement is attached as hereto as Exhibit B.

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Relevant Terms of the License Agreement 31. Pursuant to the License Agreement, Regents granted Caldera exclusive rights for

the commercial development, manufacture, use, and sale of the licensed TECHNOLOGY. Section 2.1 of the License Agreement provided as follows: [Regents] grants to the Licensee, subject to Paragraphs 2.2 and 2.3, an exclusive license to make, have made, use, import, sell and offer to sell, and have sold LICENSED INVENTIONS and LICENSED SERVICES under the PATENT RIGHTS, with the right to sublicense others under the terms of Article 3. 32. LICENSED INVENTIONS were defined in the License Agreement as any

LICENSED PRODUCT or LICENSED METHOD. 33. LICENSED PRODUCT(S) were defined as: [A]ny article of manufacture, machine or composition of matter whose manufacture, importation, use, sale, or offer for sale, but for the license granted to the Licensee herein, would constitute an infringement of a subsisting claim of a patent or patent application identified in Appendix A. 34. LICENSED METHOD(S) were defined as: [A]ny method, procedure or process whose use, but for the license granted to the Licensee herein, would constitute an infringement of a subsisting claim of a patent or patent application identified in Appendix A. 35. LICENSED SERVICE(S) were defined as: [S]ervices performed for third party customers on a fee-forservices basis, where the data resulting from such services is provided to the customer for its use, and where the performance of such services would, but for the license rights granted, constitute an infringement of a subsisting claim for a patent or patent application identified in Appendix A herein. 36. To recap, Regents granted to Caldera the exclusive license to make, have made,

use, import, sell, and offer to sell LICENSED INVENTIONS and LICENSED SERVICES under

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the PATENT RIGHTS. Neither Regents nor anyone else had the right to make, have made, use, import, sell, and offer to sell LICENSED INVENTIONS and LICENSED SERVICES under the PATENT RIGHTS for any commercial purpose. 37. As consideration for entering into the License Agreement, Caldera agreed to pay

certain fees, royalties, and equity payments pursuant to an agreed upon schedule. 38. The PATENT RIGHTS included the Regents rights to four then-pending U.S.

patents and patent applications:

39.

The PATENT RIGHTS also included Regents rights to the following

international patents and patent applications:

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40.

Regents warranted in Section 13.1 of the License Agreement that it owned each of

the PATENT RIGHTS: The University warrants that it is the lawful owner of the PATENT RIGHTS listed in Paragraph 1.2 41. Regents promised in Section 11.1 of the License Agreement to maintain and

prosecute these patents and patent applications: [Regents] will prosecute U.S. patent applications identified in Appendix A in the U.S. Patent and Trademark Office (USPTO), and will maintain U.S. patents identified in Appendix A, using counsel of its choice. 42. Regents also promised in Section 11.5 to notify Caldera of any decision to

abandon or terminate prosecution of any of the above patents or patent applications. Once it did so, Caldera would have the opportunity to assume responsibility for the prosecution of the patent: The University agrees to provide written notification to the Licensee if the University intends to terminate prosecution of any of the U.S. patent applications identified in Appendix A. Acceptance by the University of allowed claims in any of the U.S. patent applications and allowing the U.S. patent applications to

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proceed to issuance with these claims, or abandonment of any of the U.S. patent applications will be at the sole discretion of the University. If the University elects to terminate prosecution of a U.S. patent application for a reason other than to accept allowed claims, the Licensee may elect in writing to assume responsibility for such prosecution in the name of the University at its own expense. 43. While Caldera was responsible for the filing, prosecution, and maintenance of the

international patent applications and patents listed in Appendix A, including DOE S-102,376, Caldera could not do these things unless Regents filed the corresponding patent applications with the United States Patent and Trademark Office (USPTO) and Regents made timely Patent Cooperation Treaty (PCT) filings. Caldera could not make these filings, a fact of which Regents was well aware. This is why Appendix A specifically referenced Calderas election of international patent prosecution in the following countries: Japan; European Patent Office. It was Regents responsibility to maintain and prosecute the designated U.S. patent applications and make the corresponding PCT filing so that Caldera could file, prosecute, and maintain the international applications. 44. On or about April 25, 2006, Regents notified Caldera that it was assigning the

License Agreement to LANS and that LANS would assume all of the rights and responsibilities under the License Agreement. A copy of the assignment letter is attached as Exhibit C.2 LANS Was Not the Lawful Owner of the Patent Rights 45. As noted above, LANS represented that it was the lawful owner of the PATENT

RIGHTS. This representation was false. LANS was not the lawful owner of two of the more important PATENT RIGHTS.

All references to Regents obligations, representations, and warranties will now be made to LANS.

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46.

Unbeknownst to Caldera, LANS abandoned the foreign rights to S-102,376 twice

in October of 2004 and once again in July of 2005. It abandoned these foreign rights when it failed to make the requisite PCT filings. In an email dated February 12, 2007, LANS

acknowledged that these rights were forfeited prior to the execution of the License Agreement. A copy of the February 12, 2007 email is attached as Exhibit D. 47. Also unbeknownst to Caldera, Regents abandoned patent application S-99,911 in

August of 2005, prior to the execution of the License Agreement. 48. LANS was therefore not the lawful owner of the foreign patent rights to S-

102,376 or the patent rights to S-99,911 when it entered into the License Agreement. Its representations to the contrary were clearly false and misleading. LANS Failed to Maintain and Prosecute the Patents and Patent Applications 49. As noted above, LANS promised in Section 11.1 of the License Agreement to

prosecute and maintain the patents and patent applications for which it granted Caldera an exclusive commercial license. LANS further promised in Section 11.5 to notify Caldera if it decided to terminate prosecution of any its patents. If it did so, it agreed to give Caldera the opportunity to assume responsibility for the prosecution of the patent. 50. When LANS abandoned patent application S-99,911, it filed S-104,901 as a

continuing patent application. In October of 2006, it abandoned this application as well. 51. LANS gave no notice to Caldera of its abandonment of either application.

Caldera therefore was given no opportunity to assume the responsibility for the prosecution and maintenance of either patent. 52. Instead, LANS resubmitted the subject matter of patent applications S-99,911 and

S-104,901 as yet another continuation-in-part application styled S-109,085. LANS did so in an

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attempt to remove the inventions claimed by these applications from the scope of the License Agreement and deprive Caldera of one of the primary benefits bargained for under the License Agreement. 53. Even though patent application S-109,085 encompassed the subject matter of a

LICENSED INVENTION, LANS refused to grant Caldera the rights to the patent. In April 2007, LANS acknowledged that Caldera was entitled to the rights to S-109,085. LANS would only trade the rights, however, if Caldera agreed to waive all claims for LANS misrepresentation of its ownership of S-102,376 and for LANS illegal competition with Caldera. LANS Competes With Caldera 54. LANS granted Caldera exclusive commercial rights to make, have made, use,

import, sell, and offer to sell LICENSED INVENTIONS and LICENSED SERVICES under the PATENT RIGHTS. Neither LANS nor anyone else had the right to make, have made, use, import, sell, or offer to sell these licensed items. 55. LANS completely disregarded this exclusivity provision. LANS has not only

advertised and promoted its willingness to compete with Caldera, it has in fact made, used, and sold LICENSED INVENTIONS and LICENSED SERVICES under the PATENT RIGHTS for commercial purposes. 56. For example, LANS published LALP-06-131. In this publication, LANS

explained that it was willing to provide a national resource for customers interested in screening and expression platforms for affinity reagents using micro x-ray fluorescence. In offering to assist its customers in this regard, LANS was offering to disclose, use, and sell LICENSED INVENTIONS and LICENSED SERVICES that were granted to Caldera under the License Agreement. A copy of LANS promotional material is attached as Exhibit E.

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57.

When Dr. Warner confronted LANS about this publication, LANS representative

Dr. Andrew Bradbury acknowledged that it appeared that LANS was trying to get business in the field of drug screening using X-ray microfluorescence. Dr. Bradbury further acknowledged that such an action would violate the terms of [Calderas] licensing agreement. Notwithstanding these acknowledgments, the publication remains posted on LANS website to this day. Attached hereto as Exhibit F is a copy of the September 6, 2007 email from Andrew Bradbury to Dr. Warner. 58. LANS advertisement and promotion of its willingness to compete with Caldera

paid off for it, as it disclosed, used, and sold LICENSED INVENTIONS and LICENSED SERVICES to Calderas competitors. It did so when it provided advertising, technical and consulting services to these competitors, including but not limited to: (a) Horiba Instruments, as partially evidenced by Horibas loan agreements

with LANS, LANS publication LAUR-07-2269 which appeared in Horibas internal company journal and Integrated Hyperspectral Imaging for Comprehensive Materials Characterization; (b) X-Ray Optical Systems, Inc., as partially evidenced in multiple technical

publications authored jointly by LANS and X-Ray Optical Systems, Inc., including Automated Printing Technology as a New Tool for Liquid Sample Preparation for Micro X-Ray Fluorescence (MXRF); (c) Exelixis, as partially evidenced by LANS application for a Federal

Laboratory Consortium award; (d) Conoco, as partially evidenced by LANS application for a Federal

Laboratory Consortium award;

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(e)

Children of the Middle Waters Institute, as partially evidenced by the

materials on its website, which also lists LANS Havrilla as a staff member; (f) EDAX, as partially evidenced in the LANS-EDAX loan agreements and

other papers published by LANS; (g) The University of Alabama, as partially evidenced in the article entitled

Development of Nano-Micro-Macro-Structured Porous Nickel Electrodes for Use in Supercapacitors; (h) Bartlett Services, Inc., as partially evidenced by Outstanding

Innovation: 2006 Technology Transfer Awards; (i) Solution ADTF, as partially evidenced by the article Automated Nanoliter Deposition for Total Reflection X-Ray Fluorescence Analysis of

Semiconductors; and (j) Hewlett Packard, as partially evidenced by Picoliter Deposition for

MXRF Calibration and Quantification Using Prototype Thermal Inkjet Technology. 59. In addition to LANS above-described competition with Caldera, LANS entered

into a partnership with Defendant Argonne. Pursuant to this partnership, LANS and Argonne essentially joined forces, enabling the sharing of equipment, machinery, and personnel that both LANS and Argonne are using to disclose, use, and sell LICENSED INVENTIONS and LICENSED SERVICES. LANS has stated that this partnership is intended to use high energy X-ray beamline 11-ID-B at Argonnes APS facility in order to design materials with desirable properties such as designer medicines. The stated purpose of this partnership between LANS and Argonne directly conflicts with the rights that were granted to Caldera under the License Agreement.

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60.

LANS does not dispute that it is competing with Caldera. LANS employees

Tony Beugeldisk, Tony Burrell, and Defendant McBranch have all admitted that LANS is competing with Caldera. In fact, in its cross-complaint filed in the San Francisco County Superior Court, LANS alleges that it is in competition with Caldera. Defendant Minogues Interference With Calderas Contracts and Prospective Contracts 61. 62. In May 2006, Defendant Minogue was a temporary employee of LANS. Due to her employment with LANS and her prior employment with Regents,

Minogue knew Dr. Warner, was familiar with Caldera, and was fully aware of the License Agreement. 63. For these same reasons, Minogue was also aware of Calderas capabilities, the

value of its exclusive license and the business potential created by both. 64. Dissatisfied with her temporary employment status with LANS and excited about

a potential career with Caldera, Minogue asked Dr. Warner if he would consider offering her a position with Caldera. 65. 66. Dr. Warner declined to offer Minogue the chief scientist position with Caldera. In response to Dr. Warners declination, Minogue threatened to use her

experience, access to LANS facilities, and access to Calderas LICENSED INVENTIONS and LICENSED SERVICES to enable herself and LANS to disclose, use, and sell LICENSED INVENTIONS and LICENSED SERVICES to Calderas competitors. She followed through on her threat and disclosed, used, and sold LICENSED INVENTIONS and LICENSED SERVICES to numerous Caldera competitors, including but not limited to:

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(a)

Horiba Instruments, as partially evidenced by Horibas loan agreements

with LANS and LANS publication LAUR-07-2269 which appeared in Horibas internal company journal; (b) EDAX, as partially evidenced in the LANS-EDAX loan agreements and

other papers published by LANS; (c) Numerous other companies, as partially evidenced by her attendance at the

DARPA HAST teaming meeting, where Caldera believes that she disclosed Caldera technology to multiple companies, including Argonne. 67. Minogues stated objective was to drive Caldera out of business. She endeavored

to accomplish this objective with the unauthorized and illegal use of the LICENSED INVENTIONS and LICENSED SERVICES. 68. Minogues actions induced LANS to breach the License Agreement by

disregarding the exclusivity provision and disclosing, using and selling licensed inventions and licensed services to Calderas competitors. Minogues actions also prevented Caldera from capitalizing on the business expectancies of which she was well aware. 69. Minogues actions have damaged Caldera in an amount to be determined at trial.

Defendant Havrillas Interference With Calderas Contracts and Prospective Contracts 70. 71. In May 2006, Defendant Havrilla was employed by LANS. Due to his employment with LANS and his prior employment with Regents,

Havrilla knew Dr. Warner, was familiar with Caldera, and was well aware of the License Agreement. 72. For these same reasons, Havrilla was also aware of Calderas capabilities, the

value of its exclusive license and the business potential created by both.

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73.

Havrilla asked Dr. Warner to consider awarding consulting contracts to him.

Havrilla told Dr. Warner that other companies that were competitors of Caldera were offering him consulting contracts and other unspecified consideration for his and LANS endorsements and cooperation. 74. When Dr. Warner declined to offer Minogue the chief scientist position with

Caldera, Havrilla also asked Dr. Warner to reconsider his decision. 75. Dr. Warner again declined to offer Dr. Minogue the chief scientist position with

Caldera. He also did not award the requested consulting contracts to Havrilla. 76. In response to Dr. Warners refusal to offer Minogue the chief scientist position or

award Havrilla contracts, Havrilla threatened to use his experience, access to LANS facilities, and access to Calderas LICENSED INVENTIONS and LICENSED SERVICES to enable himself and LANS to disclose, use, and sell LICENSED INVENTIONS and LICENSED SERVICES to Calderas competitors. He followed through on his threat and disclosed, used, and sold LICENSED INVENTIONS and LICENSED SERVICES to numerous Caldera competitors, including but not limited to: (a) Horiba Instruments, as partially evidenced by Horibas loan agreements

with LANS, LANS publication LAUR-07-2269 which appeared in Horibas internal company journal and Integrated Hyperspectral Imaging for Comprehensive Materials Characterization; (b) X-Ray Optical Systems, Inc., as partially evidenced in multiple technical

publications authored jointly by LANS and X-Ray Optical Systems, Inc., including Automated Printing Technology as a New Tool for Liquid Sample Preparation for Micro X-Ray Fluorescence (MXRF);

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(c)

Exelixis, as partially evidenced by LANS application for a Federal

Laboratory Consortium award; (d) Conoco, as partially evidenced by LANS application for a Federal

Laboratory Consortium award; (e) Children of the Middle Waters Institute, as partially evidenced by the

materials on its website, which also lists LANS Havrilla as a staff member; (f) EDAX, as partially evidenced in the LANS-EDAX loan agreements and

other papers published by LANS; (g) The University of Alabama, as partially evidenced in the article entitled

Development of Nano-Micro-Macro-Structured Porous Nickel Electrodes for Use in Supercapacitors; (h) Bartlett Services, Inc., as partially evidenced by Outstanding

Innovation: 2006 Technology Transfer Awards; (i) Solution ADTF, as partially evidenced by the article Automated Nanoliter Deposition for Total Reflection X-Ray Fluorescence Analysis of

Semiconductors; (j) Hewlett Packard, as partially evidenced by Picoliter Deposition for

MXRF Calibration and Quantification Using Prototype Thermal Inkjet Technology; (k) Defendant Argonne, as partially evidenced by the work he has done with

Argonne employees in conjunction with the Denver X-Ray Conference; and (l) Numerous other companies, in his role as Chairman of the X-Ray

Fluorescence Subcommittee of the International Centre for Diffraction Data, and also

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through disclosures made during lectures at the Denver X-Ray Conference after the License Agreement was signed. 77. Havrillas stated objective was to drive Caldera out of business. He endeavored

to accomplish this objective with the unauthorized and illegal use of the LICENSED INVENTIONS and LICENSED SERVICES. 78. Havrillas actions induced LANS to breach the License Agreement by

disregarding the exclusivity provision and disclosing, using and selling licensed inventions and licensed services to Calderas competitors. Havrillas actions also prevented Caldera from capitalizing on the business expectancies of which he was well aware. 79. Havrillas actions have damaged Caldera in an amount to be determined at trial.

LANS Was Aware of And Approved of Havrilla and Minogues Actions 80. Dr. Warner complained about Havrillas and Minogues activities to Dr. Anthony

Burrell, who was Minogues direct supervisor at LANS, Dr. Tony Beugelsdijk, who was Havrillas direct supervisor at LANS, Dr. Gene Peterson, who was then an executive at LANS, and Dr. Duncan McBranch, who was also then an executive at LANS. Drs. Burrell, Beugelsdijk, Peterson, and McBranch were aware that Minogue and Havrilla were illegally competing with Caldera. They claimed that such activities were commonplace at LANS and that LANS was not going to do anything to prevent Minogue or Havrilla from conducting these activities. LANS Had No Intention Of Abiding By the License Agreement 81. Prior to Dr. Warners signing of the Option Agreement, McBranch and Barber

met frequently with Dr. Warner to discuss Calderas potential acquisition of the PATENT RIGHTS.

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82.

As early as 2004, Barber asked Dr. Warner to sign the Option Agreement,

claiming that it would be a great professional success for her personally as well as beneficial for Caldera and LANS. 83. During their overtures, Barber and McBranch claimed that LANS was the lawful

owner of the PATENT RIGHTS. 84. Barber and McBranch failed to disclose that LANS was in fact not the lawful

owner of the PATENT RIGHTS, even though they knew that LANS did not own these rights. 85. Barber and McBranch also knew that LANS had no intention of prosecuting and

maintaining the patent rights or of abiding by the exclusivity provision. McBranch admitted as much in a 2006 conversation with Dr. Warner. Notwithstanding these facts, Barber concealed these facts from Dr. Warner in order to induce Caldera to sign the Option and License Agreements. McBranch concealed these facts from Dr. Warner in order to induce Caldera to sign the License Agreement. 86. In reliance on these representations and material omissions, Caldera signed the

Option and License Agreements. Caldera was unaware of the falsity of Barber and McBranchs statements at the time it signed the Option and License Agreements. 87. Caldera has been damaged by these actions in an amount to be determined at trial.

Borkowsky and Cottrell Commit Malpractice 88. As noted above, in Section 11.1 of the License Agreement LANS agreed to

prosecute the U.S. patent applications and maintain the U.S. patents identified in Appendix A using LANS patent attorneys. Defendants Borkowsky and Cottrell were LANS patent attorneys.

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89.

While LANS agreed in Section 11.3 to review recommendations offered by

Caldera with respect to the prosecution or maintenance of patent applications and patents, Borkowsky and Cottrell had sole discretion and full control over all decisions relating thereto. 90. As such, Borkowsky and Cottrell owed a duty to Caldera to use the requisite skill,

prudence, and diligence in their maintenance and prosecution of the patents and patent applications. 91. On or about June 1, 2007, Caldera became aware of adverse prior art that affected

the patentability of one of Calderas licensed patents. The patent application was known as S104,853 and it was included in the License Agreement pursuant to paragraph 1.2 by virtue of it being a divisional application of S-100,585. 92. Caldera informed Borkowsky, who immediately informed Cottrell of this adverse

prior art. They inexplicably refused to notify the USPTO. 93. Similarly, on or about October 14, 2008, Caldera discovered that Cottrell had

incorrectly designated the inventors for patent application 11/974,156. Caldera initially coowned this patent application with LANS and LANS subsequently granted Caldera the exclusive rights to the patent application. 94. Borkowsky and Cottrell became aware of this deficiency on or about February 2,

2009 after Caldera informed LANS of it. They were again reminded to rectify the deficiency on or about April 14, 2010. Again, they inexplicably refused to notify the USPTO. 95. Borkowsky and Cottrells refusal to notify USPTO of these deficiencies

constitutes a breach of their professional duties and it has damaged Caldera to the extent that its PATENT RIGHTS have been comprised. 96. Caldera has been damaged by these actions in an amount to be determined at trial.

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COUNT I Declaratory Relief (against LANS and Argonne) 97. 98. Agreement. 99. On or about April 25, 2006, Regents assigned the License Agreement to LANS Caldera repeats and re-alleges paragraph 1-96 On or about September 8, 2005, Caldera and Regents entered into the License

and LANS assumed all of the rights and responsibilities contained therein. 100. Caldera performed the required obligations under the License Agreement by

paying fees and royalties and making equity payments. 101. LANS completely disregarded the exclusivity provision in the License

Agreement. It not only advertised and promoted its willingness to compete with Caldera, it in fact made, used and sold LICENSED INVENTIONS and LICENSED SERVICES under the PATENT RIGHTS to Calderas competitors. 102. For example, LANS published LALP-06-131. In this publication, LANS

explained that it was willing to provide a national resource for customers interested in screening and expression platforms for affinity reagents using micro x-ray fluorescence. In offering to assist its customers in this regard, LANS was offering to disclose, use, and sell LICENSED INVENTIONS and LICENSED SERVICES that were granted to Caldera under the License Agreement. See Exhibit E. 103. LANS advertisement and promotion of its willingness to compete with Caldera

paid off for it, as it disclosed, used, and sold LICENSED INVENTIONS and LICENSED SERVICES to Calderas competitors. It did so when it provided advertising, technical and consulting services to these competitors, including but not limited to:

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(a)

Horiba Instruments, as partially evidenced by Horibas loan agreements

with LANS, LANS publication LAUR-07-2269 which appeared in Horibas internal company journal and Integrated Hyperspectral Imaging for Comprehensive Materials Characterization; (b) X-Ray Optical Systems, Inc., as partially evidenced in multiple technical

publications authored jointly by LANS and X-Ray Optical Systems, Inc., including Automated Printing Technology as a New Tool for Liquid Sample Preparation for Micro X-Ray Fluorescence (MXRF); (c) Exelixis, as partially evidenced by LANS application for a Federal

Laboratory Consortium award; (d) Conoco, as partially evidenced by LANS application for a Federal

Laboratory Consortium award; (e) Children of the Middle Waters Institute, as partially evidenced by the

materials on its website, which also lists LANS Havrilla as a staff member; (f) EDAX, as partially evidenced in the LANS-EDAX loan agreements and

other papers published by LANS; (g) The University of Alabama, as partially evidenced in the article entitled

Development of Nano-Micro-Macro-Structured Porous Nickel Electrodes for Use in Supercapacitors; (h) Bartlett Services, Inc., as partially evidenced by Outstanding

Innovation: 2006 Technology Transfer Awards;

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(i) Solution

ADTF, as partially evidenced by the article Automated Nanoliter Deposition for Total Reflection X-Ray Fluorescence Analysis of

Semiconductors; and (j) Hewlett Packard, as partially evidenced by Picoliter Deposition for

MXRF Calibration and Quantification Using Prototype Thermal Inkjet Technology. 104. In addition to LANS above-described competition with Caldera, LANS entered

into a partnership with Defendant Argonne. Pursuant to this partnership, LANS and Argonne essentially joined forces, enabling the sharing of equipment, machinery, and personnel that both LANS and Argonne are using to disclose, use, and sell LICENSED INVENTIONS and LICENSED SERVICES. LANS has stated that this partnership is intended to use high energy X-ray beamline 11-ID-B at Argonnes APS facility in order to design materials with desirable properties such as designer medicines. The stated purpose of this partnership between LANS and Argonne directly conflicts with the rights that were granted to Caldera under the License Agreement. 105. Pursuant to 28 U.S.C. 2201, this Court has the power to declare and adjudicate

the rights and liabilities of the parties. WHEREFORE, Caldera respectfully requests that the Court: A. Declare that LANS and Argonne are making, having made, using, importing, selling, or offering to sell LICENSED INVENTIONS or LICENSED SERVICES under the PATENT RIGHTS; B. Enter a preliminary and permanent injunction against LANS and Argonne (1) prohibiting them from making, having made, using, importing, selling,

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and offering to sell any of the LICENSED INVENTIONS or LICENSED SERVICES under the PATENT RIGHTS; C. Order LANS to grant to Caldera the exclusive rights to the patent styled S109,085; D. Award Caldera such damages as may be proven at trial against each of the Defendants; E. F. Award Caldera its costs and attorneys fees; and Award Caldera such other and further relief as the Court deems just and proper.

COUNT II Breach of Contract (against LANS) 106. 107. Agreement. 108. On or about April 25, 2006, Regents assigned the License Agreement to LANS Caldera repeats and re-alleges paragraphs 1-105. On or about September 8, 2005, Caldera and Regents entered into the License

and LANS assumed all of the rights and responsibilities contained therein. 109. Caldera performed the required obligations under the License Agreement by

paying fees and royalties and making equity payments. 110. Pursuant to the License Agreement, LANS granted Caldera the exclusive license

to make, have made, use, import, sell, and offer to sell LICENSED INVENTIONS and LICENSED SERVICES under the PATENT RIGHTS. 111. LANS warranted that it was the lawful owner of these PATENT RIGHTS.

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112. 113.

LANS promised to maintain and prosecute the patents and patent applications. LANS promised to notify Caldera of any intention to abandon or terminate

prosecution of its patents or patent applications. After doing so, it promised to give Caldera the opportunity to assume responsibility for the prosecution of the application. 114. 115. LANS breached each of the above representations and promises. LANS was not the lawful owner of S-102,376s foreign rights or S-99,911 when

the License Agreement was executed. LANS representation in this regard was false. 116. 104,901. LANS failed to notify Caldera of its abandonment of patents S-99,911 and S-

Caldera was therefore never given an opportunity to maintain or prosecute the

application. 117. LANS also completely disregarded the exclusivity provision in the License

Agreement. It not only advertised and promoted its willingness to compete with Caldera, it in fact made, used and sold LICENSED INVENTIONS and LICENSED SERVICES under the PATENT RIGHTS to Calderas competitors. 118. For example, LANS published LALP-06-131. In this publication, LANS

explained that it was willing to provide a national resource for customers interested in screening and expression platforms for affinity reagents using micro x-ray fluorescence. In offering to assist its customers in this regard, LANS was offering to disclose, use, and sell LICENSED INVENTIONS and LICENSED SERVICES that were granted to Caldera under the License Agreement. See Exhibit E. 119. LANS advertisement and promotion of its willingness to compete with Caldera

paid off for it, as it disclosed, used, and sold LICENSED INVENTIONS and LICENSED

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SERVICES to Calderas competitors. It did so when it provided advertising, technical and consulting services to these competitors, including but not limited to: (a) Horiba Instruments, as partially evidenced by Horibas loan agreements

with LANS, LANS publication LAUR-07-2269 which appeared in Horibas internal company journal and Integrated Hyperspectral Imaging for Comprehensive Materials Characterization; (b) X-Ray Optical Systems, Inc., as partially evidenced in multiple technical

publications authored jointly by LANS and X-Ray Optical Systems, Inc., including Automated Printing Technology as a New Tool for Liquid Sample Preparation for Micro X-Ray Fluorescence (MXRF); (c) Exelixis, as partially evidenced by LANS application for a Federal

Laboratory Consortium award; (d) Conoco, as partially evidenced by LANS application for a Federal

Laboratory Consortium award; (e) Children of the Middle Waters Institute, as partially evidenced by the

materials on its website, which also lists LANS Havrilla as a staff member; (f) EDAX, as partially evidenced in the LANS-EDAX loan agreements and

other papers published by LANS; (g) The University of Alabama, as partially evidenced in the article entitled

Development of Nano-Micro-Macro-Structured Porous Nickel Electrodes for Use in Supercapacitors; (h) Bartlett Services, Inc., as partially evidenced by Outstanding

Innovation: 2006 Technology Transfer Awards;

- 27 -

(i) Solution

ADTF, as partially evidenced by the article Automated Nanoliter Deposition for Total Reflection X-Ray Fluorescence Analysis of

Semiconductors; and (j) Hewlett Packard, as partially evidenced by Picoliter Deposition for

MXRF Calibration and Quantification Using Prototype Thermal Inkjet Technology. 120. In addition to LANS above-described competition with Caldera, LANS entered

into a partnership with Defendant Argonne. Pursuant to this partnership, LANS and Argonne essentially joined forces, enabling the sharing of equipment, machinery, and personnel that both LANS and Argonne are using to disclose, use, and sell LICENSED INVENTIONS and LICENSED SERVICES. LANS has stated that this partnership is intended to use high energy X-ray beamline 11-ID-B at Argonnes APS facility in order to design materials with desirable properties such as designer medicines. The stated purpose of this partnership between LANS and Argonne directly conflicts with the rights that were granted to Caldera under the License Agreement. 121. 122. trial. WHEREFORE, Caldera respectfully requests: A. Damages in an amount in excess of $75,000 against each of the Defendants; B. Award Caldera its costs and reasonable attorneys fees for this malicious and intentional fraud of contract; and; C. Such other and further relief as the Court deems just and proper. Each of the above actions constitutes a breach of the License Agreement. Caldera has been damaged by these breaches in an amount to be determined at

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COUNT III Breach of Implied Contract (against LANS) 123. 124. Agreement. 125. On or about April 25, 2006, Regents assigned the License Agreement to LANS Caldera repeats and re-alleges paragraphs 1-122. On or about September 8, 2005, Caldera and Regents entered into the License

and LANS assumed all of the rights and responsibilities contained therein. 126. Caldera performed the required obligations under the License Agreement by

paying fees and royalties and making equity payments. 127. In addition to the obligations outlined above, LANS had a duty to make timely

PCT filings for each foreign patent application that Caldera designated in the License Agreement. 128. Caldera could not file, prosecute, or maintain its international patent applications

unless LANS made the requisite PCT filing. Caldera could not make these PCT filings on its own and LANS knew this. 129. LANS breached this implied obligation when it failed to make the requisite PCT

filing for DOE S-102,376. 130. This failing has damaged Caldera to the extent that it cannot file, prosecute, or

maintain its international patent application for DOE S-102,376. WHEREFORE, Caldera respectfully requests: A. Damages in an amount in excess of $75,000 against each of the Defendants;

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B.

Award Caldera its costs and reasonable attorneys fees for this malicious and intentional fraud of contract; and;

C.

Such other and further relief as the Court deems just and proper.

COUNT IV Breach of Implied Covenant of Good Faith and Fair Dealing (against LANS) 131. 132. Agreement. 133. On or about April 25, 2006, Regents assigned the License Agreement to LANS Caldera repeats and re-alleges paragraphs 1-130. On or about September 8, 2005, Caldera and Regents entered into the License

and LANS assumed all of the rights and responsibilities contained therein. 134. Caldera performed the required obligations under the License Agreement by

paying fees and royalties and making equity payments. 135. dealing. 136. As such, LANS could not purposefully prevent the contracts performance or The License Agreement contained an implied covenant of good faith and fair

withhold its benefits from Caldera. 137. When it entered into the License Agreement, LANS had no intention of LANS similarly had no

maintaining and prosecuting the patents and patent applications. intention of abiding by the exclusivity provision in the agreement. 138.

Instead, LANS abandoned patents S-99,911 and S-104,901, did not give Caldera

notice of its decision to no longer prosecute the patents, and did not give Caldera any opportunity to maintain or prosecute the patents and patent applications.

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139.

LANS also completely disregarded the exclusivity provision in the License

Agreement. It not only advertised and promoted its willingness to compete with Caldera, it in fact made, used and sold LICENSED INVENTIONS and LICENSED SERVICES under the PATENT RIGHTS to Calderas competitors. 140. dealing. 141. trial. WHEREFORE, Caldera respectfully requests that the Court: A. Damages in an amount in excess of $75,000 against each of the Defendants; B. Award Caldera its costs and reasonable attorneys fees for this malicious and intentional fraud of contract; and; C. Such other and further relief as the Court deems just and proper. COUNT V Fraud (against LANS, McBranch and Barber) 142. 143. Caldera repeats and re-alleges paragraph 1-141. Prior to Dr. Warners signing of the Option Agreement, LANS Barber met Caldera has been damaged by these breaches in an amount to be determined at LANS actions constitute a breach of the implied covenant of good faith and fair

frequently with Dr. Warner to discuss Calderas potential acquisition of the PATENT RIGHTS. 144. As early as 2004, Barber asked Dr. Warner to sign the Option Agreement,

claiming that it would be a great professional success for them personally as well as for Caldera and LANS.

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145.

During their overtures, Barber and McBranch claimed that LANS was the lawful

owner of the PATENT RIGHTS. 146. Barber, McBranch and LANS failed to disclose that LANS was in fact not the

lawful owner of the PATENT RIGHTS, even though they knew the truth. They claimed that LANS was the lawful owner of the PATENT RIGHTS so that Caldera would agree to sign the License Agreement. 147. LANS ownership of the PATENT RIGHTS was a material term of the License

Agreement. Caldera would not have signed the License Agreement if it knew that LANS was not the lawful owner of the PATENT RIGHTS. 148. Caldera relied on the representations made by Barber, McBranch, and LANS

when it entered into the License Agreement. 149. Caldera has been damaged by the fact that LANS is not the owner of S-102,376 or

S-99,911 in an amount to be determined at trial. WHEREFORE, Caldera respectfully requests: A. Damages in an amount in excess of $75,000 against each of the Defendants; B. Award Caldera its costs and reasonable attorneys fees for this malicious and intentional fraud of contract; and; C. Such other and further relief as the Court deems just and proper. COUNT VI Fraudulent Concealment (against LANS, McBranch and Barber) 150. Caldera repeats and re-alleges paragraphs 1-149.

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151.

Prior to Dr. Warners signing of the Option Agreement, LANS Barber met

frequently with Dr. Warner to discuss Calderas potential acquisition of the PATENT RIGHTS. 152. Barber, McBranch and LANS knew that LANS had no intention of prosecuting

and maintaining the patent rights or of abiding by the exclusivity provision. McBranch admitted as such in a 2007 conversation with Dr. Warner. Notwithstanding these facts, Barber, McBranch and LANS concealed these facts from Dr. Warner in order to induce Caldera to sign the Option and License Agreements. 153. In reliance on these representations and material omissions, Caldera signed the

Option and License Agreements. Caldera was unaware of the falsity of Barber, McBranch and LANS representations at the time it signed the Option and License Agreements. 154. Caldera has been damaged by these actions in an amount to be determined at trial.

WHEREFORE, Caldera respectfully requests: A. Damages in an amount in excess of $75,000 against each of the Defendants; B. Award Caldera its costs and reasonable attorneys fees for this malicious and intentional fraud of contract; and; C. Such other and further relief as the Court deems just and proper. COUNT VII Intentional Interference With Contractual Relations (against Minogue and Havrilla) 155. 156. Agreement. Caldera repeats and re-alleges paragraphs 1-154. On or about September 8, 2005, Caldera and Regents entered into the License

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157.

On or about April 25, 2006, Regents assigned the License Agreement to LANS

and LANS assumed all of the rights and responsibilities contained therein. 158. Caldera performed the required obligations under the License Agreement by

paying fees and royalties and making equity payments. 159. Due to their employment with LANS and their prior employment with Regents,

Minogue and Havrilla knew Dr. Warner, were familiar with Caldera, and were aware of the License Agreement. 160. For these reasons, Minogue and Havrilla were also aware of Calderas

capabilities, the value of its exclusive license and the business potential created by both. 161. Dissatisfied with her temporary employment status with LANS and excited about

a potential career with Caldera, Minogue asked Dr. Warner if he would consider offering her a position with Caldera. 162. 163. Dr. Warner declined to offer Minogue the chief scientist position with Caldera. When Dr. Warner declined to offer Minogue the chief scientist position with

Caldera, Havrilla asked Dr. Warner to reconsider his decision. 164. Caldera. 165. Havrilla asked Dr. Warner to consider awarding consulting contracts to him. Dr. Warner again declined to offer Minogue the chief scientist position with

Havrilla told Dr. Warner that other companies that were competitors of Caldera were offering him consulting contracts and other unspecified consideration for his and LANS endorsements and cooperation. 166. Dr. Warner did not award the requested consulting contracts to Havrilla.

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167.

In response to Dr. Warners declinations, Minogue threatened to use her

experience, access to LANS facilities and access to Calderas LICENSED INVENTIONS and LICENSED SERVICES to enable herself and LANS to disclose, use, and sell LICENSED INVENTIONS and LICENSED SERVICES to Calderas competitors. She followed through on her threats and disclosed, used, and sold LICENSED INVENTIONS and LICENSED SERVICES to numerous Caldera competitors, including but not limited to: (a) Horiba Instruments, as partially evidenced by Horibas loan agreements

with LANS and LANS publication LAUR-07-2269 which appeared in Horibas internal company journal; (b) EDAX, as partially evidenced in the LANS-EDAX loan agreements and

other papers published by LANS; and (c) Numerous other companies, as partially evidenced by her attendance at the

DARPA HAST teaming meeting, where Caldera believes that she disclosed Caldera technology to multiple companies, including Argonne. 168. In response to Dr. Warners declinations, Havrilla threatened to use his

experience, access to LANS facilities, and access to Calderas LICENSED INVENTIONS and LICENSED SERVICES to enable himself and LANS to disclose, use, and sell LICENSED INVENTIONS and LICENSED SERVICES to Calderas competitors. He followed through on his threats and disclosed, used, and sold LICENSED INVENTIONS and LICENSED SERVICES to numerous Caldera competitors, including but not limited to: (a) Horiba Instruments, as partially evidenced by Horibas loan agreements

with LANS, LANS publication LAUR-07-2269 which appeared in Horibas internal

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company journal and Integrated Hyperspectral Imaging for Comprehensive Materials Characterization; (b) X-Ray Optical Systems, Inc., as partially evidenced in multiple technical

publications authored jointly by LANS and X-Ray Optical Systems, Inc., including Automated Printing Technology as a New Tool for Liquid Sample Preparation for Micro X-Ray Fluorescence (MXRF); (c) Exelixis, as partially evidenced by LANS application for a Federal

Laboratory Consortium award; (d) Conoco, as partially evidenced by LANS application for a Federal

Laboratory Consortium award; (e) Children of the Middle Waters Institute, as partially evidenced by the

materials on its website, which also lists LANS Havrilla as a staff member; (f) EDAX, as partially evidenced in the LANS-EDAX loan agreements and

other papers published by LANS; (g) The University of Alabama, as partially evidenced in the article entitled

Development of Nano-Micro-Macro-Structured Porous Nickel Electrodes for Use in Supercapacitors; (h) Bartlett Services, Inc., as partially evidenced by Outstanding

Innovation: 2006 Technology Transfer Awards; (i) Solution ADTF, as partially evidenced by the article Automated Nanoliter Deposition for Total Reflection X-Ray Fluorescence Analysis of

Semiconductors;

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(j)

Hewlett Packard, as partially evidenced by Picoliter Deposition for

MXRF Calibration and Quantification Using Prototype Thermal Inkjet Technology; (k) Defendant Argonne, as partially evidenced by the work he has done with

Argonne employees in conjunction with the Denver X-Ray Conference; and (l) Numerous other companies, in his role as Chairman of the X-Ray

Fluorescence Subcommittee of the International Centre for Diffraction Data, and also through disclosures made during lectures at the Denver X-Ray Conference after the License Agreement was signed. 169. Minogues and Havrillas stated objective was to drive Caldera out of business.

They endeavored to accomplish this objective with the unauthorized and illegal use of the LICENSED INVENTIONS and LICENSED SERVICES. 170. Their actions induced LANS to breach the License Agreement by disregarding the

exclusivity provision and disclosing, using and selling licensed inventions and licensed services to Calderas competitors. 171. Their actions have damaged Caldera in an amount to be determined at trial.

WHEREFORE, Caldera respectfully requests: A. Damages in an amount in excess of $75,000 against each of the Defendants; B. Award Caldera its costs and reasonable attorneys fees for this malicious and intentional fraud of contract; and; C. Such other and further relief as the Court deems just and proper.

COUNT VIII Intentional Interference With Prospective or Expected Contractual Relations (against LANS, Minogue and Havrilla)

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172. 173.

Caldera repeats and re-alleges paragraphs 1-171. Due to their employment with LANS and their prior employment with Regents,

Minogue and Havrilla knew Dr. Warner, were familiar with Caldera, and were aware of the License Agreement. 174. For these reasons, Minogue and Havrilla were also aware of Calderas

capabilities, the value of its exclusive license and the business potential created by both. 175. Dissatisfied with her temporary employment status with LANS and excited about

a potential career with Caldera, Minogue asked Dr. Warner if he would consider offering her a position with Caldera. 176. 177. Dr. Warner declined to offer Minogue the chief scientist position with Caldera. When Dr. Warner declined to offer Minogue the chief scientist position with

Caldera, Havrilla asked Dr. Warner to reconsider his decision. 178. Caldera. 179. Havrilla asked Dr. Warner to consider awarding consulting contracts to him. Dr. Warner again declined to offer Minogue the chief scientist position with

Havrilla told Dr. Warner that other companies that were competitors of Caldera were offering him consulting contracts and other unspecified consideration for his and LANS endorsements and cooperation. 180. 181. Dr. Warner did not award the requested consulting contracts to Havrilla. In response to Dr. Warners declinations, Minogue threatened to use her

experience, access to LANS facilities and access to Calderas LICENSED INVENTIONS and LICENSED SERVICES to enable her and LANS to disclose, use, and sell LICENSED INVENTIONS and LICENSED SERVICES to Calderas competitors. She followed through on

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her threats and disclosed, used, and sold LICENSED INVENTIONS and LICENSED SERVICES to numerous Caldera competitors, including but not limited to: (a) Horiba Instruments, as partially evidenced by Horibas loan agreements

with LANS and LANS publication LAUR-07-2269 which appeared in Horibas internal company journal; (b) EDAX, as partially evidenced in the LANS-EDAX loan agreements and

other papers published by LANS; and (c) Numerous other companies, as partially evidenced by her attendance at the

DARPA HAST teaming meeting, where Caldera believes that she disclosed Caldera technology to multiple companies, including Argonne. 182. In response to Dr. Warners declinations, Havrilla threatened to use his

experience, access to LANS facilities, and access to Calderas LICENSED INVENTIONS and LICENSED SERVICES to enable himself and LANS to disclose, use, and sell LICENSED INVENTIONS and LICENSED SERVICES to Calderas competitors. He followed through on his threats and disclosed, used, and sold LICENSED INVENTIONS and LICENSED SERVICES to numerous Caldera competitors, including but not limited to: (a) Horiba Instruments, as partially evidenced by Horibas loan agreements

with LANS, LANS publication LAUR-07-2269 which appeared in Horibas internal company journal and Integrated Hyperspectral Imaging for Comprehensive Materials Characterization; (b) X-Ray Optical Systems, Inc., as partially evidenced in multiple technical

publications authored jointly by LANS and X-Ray Optical Systems, Inc., including

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Automated Printing Technology as a New Tool for Liquid Sample Preparation for Micro X-Ray Fluorescence (MXRF); (c) Exelixis, as partially evidenced by LANS application for a Federal

Laboratory Consortium award; (d) Conoco, as partially evidenced by LANS application for a Federal

Laboratory Consortium award; (e) Children of the Middle Waters Institute, as partially evidenced by the

materials on its website, which also lists LANS Havrilla as a staff member; (f) EDAX, as partially evidenced in the LANS-EDAX loan agreements and

other papers published by LANS; (g) The University of Alabama, as partially evidenced in the article entitled

Development of Nano-Micro-Macro-Structured Porous Nickel Electrodes for Use in Supercapacitors; (h) Bartlett Services, Inc., as partially evidenced by Outstanding

Innovation: 2006 Technology Transfer Awards; (i) Solution ADTF, as partially evidenced by the article Automated Nanoliter Deposition for Total Reflection X-Ray Fluorescence Analysis of

Semiconductors; (j) Hewlett Packard, as partially evidenced by Picoliter Deposition for

MXRF Calibration and Quantification Using Prototype Thermal Inkjet Technology; (k) Defendant Argonne, as partially evidenced by the work he has done with

Argonne employees in conjunction with the Denver X-Ray Conference; and

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(l)

Numerous other companies, in his role as Chairman of the X-Ray

Fluorescence Subcommittee of the International Centre for Diffraction Data, and also through disclosures made during lectures at the Denver X-Ray Conference after the License Agreement was signed. 183. Minogues and Havrillas stated objective was to drive Caldera out of business.

They endeavored to accomplish this objective with the unauthorized and illegal use of the LICENSED INVENTIONS and LICENSED SERVICES. 184. Their actions prevented Caldera from capitalizing on the business expectancies of

which they were well aware. 185. Their actions have damaged Caldera in an amount to be determined at trial.

WHEREFORE, Caldera respectfully requests: A. Damages in an amount in excess of $75,000 against each of the Defendants; B. Award Caldera its costs and reasonable attorneys fees for this malicious and intentional fraud of contract; and; C. Such other and further relief as the Court deems just and proper. COUNT IX Legal Malpractice (against Borkowsky and Cottrell) 186. 187. Caldera repeats and re-alleges paragraphs 1-185. As noted above, in Section 11.1 of the License Agreement, LANS agreed to

prosecute the U.S. patent applications and maintain the U.S. patents identified in Appendix A using LANS patent attorneys. Defendants Borkowsky and Cottrell were LANS patent attorneys.

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188.

While LANS agreed in Section 11.3 to review recommendations offered by

Caldera with respect to the prosecution or maintenance of patent applications and patents, Borkowsky and Cottrell had sole discretion and full control over all decisions relating thereto. 189. As such, Borkowsky and Cottrell owed a duty to Caldera to use the requisite skill,

prudence, and diligence in their maintenance and prosecution of the patents and patent applications. 190. On or about June 1, 2007, Caldera became aware of adverse prior art that affected

the patentability of one of Calderas licensed patents. The patent application was known as S104,853 and it was included in the License Agreement pursuant to paragraph 1.2 by virtue of it being a divisional application of S-100,585. 191. Caldera informed Borkowsky, who immediately informed Cottrell of this adverse

prior art. They inexplicably refused to notify the USPTO. 192. Similarly, on or about October 14, 2008, Caldera discovered that Cottrell had

incorrectly designated the inventors for patent application 11/974,156. Caldera initially coowned this patent application with LANS and LANS subsequently granted Caldera the exclusive rights to the patent application. 193. Borkowsky and Cottrell became aware of this deficiency on or about February 2,

2009 after Caldera informed LANS of it. They were again reminded to rectify the deficiency on or about April 14, 2010. Again, they inexplicably refused to notify the USPTO. 194. Borkowsky and Cottrells refusal to notify USPTO of these deficiencies

constitutes a breach of their professional duties and it has damaged Caldera to the extent that its PATENT RIGHTS have been comprised. 195. Caldera has been damaged by these actions in an amount to be determined at trial.

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196. 197.

PATENT RIGHTS have been comprised. Caldera has been damaged in an amount to be determined at trial.

WHEREFORE, Caldera respectfully requests: A. Damages in an amount in excess of $75,000 against each of the Defendants; B. Award Caldera its costs and reasonable attorneys fees for this malicious and intentional fraud of contract; and; C. Such other and further relief as the Court deems just and proper.

Plaintiff requests a trial by jury of all those claims that are triable before a jury. Dated: October 4, 2010 Dean A. Dickie James W. McConkey Kathleen E. Koppenhoefer MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. 225 West Washington Street, Suite 2600 Chicago, IL 60606 (312) 460-4200 Respectfully submitted, Caldera Pharmaceuticals, Inc. By: s/ Dean A. Dickie One of Plaintiffs Attorneys

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