UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

SPINAL GENERATIONS, LLC, Plaintiff, v. ATLAS SPINE, INC., Defendant. PLAINTIFFS COMPLAINT FOR PATENT INFRINGEMENT Plaintiff, Spinal Generations, LLC (Spinal Generations), complains of Defendant, Atlas Spine, Inc. (Atlas Spine), as follows: THE PARTIES 1. Spinal Generations is an Illinois limited liability company with its principal place Case No.: 1:12-cv-6383 Judge: Magistrate Judge:

of business at 19110 Darvin Drive, Mokena, Illinois 60448. 2. When Spinal Generations was originally formed, the name was inadvertently

recorded as Spinal Generations II, LLC instead of the intended name Spinal Generations, LLC. To correct this, Plaintiff filed Articles of Amendment with the Illinois Secretary of State to change the legal name of Spinal Generations, LLC from Spinal Generations II, LLC to Spinal Generations, LLC. These Articles of Amendment were filed with the Illinois Secretary of State on April 9, 2012. The Illinois Secretary of State website reflects the changing of the name. A true and correct copy of the April 9, 2012, Articles of Amendment is attached as Exhibit 1 to this Complaint. 3. Atlas Spine is a Florida corporation with its principal place of business at 1555

Jupiter Park Drive, Suite 4, Jupiter, Florida 33458.

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JURISDICTION AND VENUE 4. This is a civil action for patent infringement arising under the United States patent

statutes, 35 U.S.C. 1 et. seq. 5. This Court has jurisdiction over the subject matter of this action under 28 U.S.C.

1331 and 1338(a). 6. On information and belief, Atlas Spine has done and is doing business in the state

of Illinois and in this judicial district, has purposefully availed itself of the privilege of conducting business in this judicial district, thereby invoking its benefits and protections, and has established sufficient minimum contacts with the state of Illinois such that it should reasonably and fairly anticipate being brought into court in Illinois. The patent infringement claims alleged herein arise out of or result from one or more of the foregoing activities. 7. On information and belief, this Court has personal jurisdiction over Atlas Spine

by virtue of its acts of direct and indirect patent infringement, including its inducement of infringement and its contributory infringement, in this judicial district and by virtue of its transactions of business in Illinois. 8. Venue is proper in this judicial district under 28 U.S.C. 1391(b)-(c) and

1400(b) because Atlas Spine is subject to personal jurisdiction in this judicial district. FACTUAL BACKGROUND 9. On September 15, 2009, the United States Patent and Trademark Office (the

USPTO) duly and legally issued United States Patent No. 7,588,599 (the 599 Patent), entitled Interbody Cage System, to Patrick J. Sweeney. A true and correct copy of the 599 Patent is attached hereto as Exhibit 2.

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10.

During prosecution, the application giving rise to the 599 Patent was assigned

from Patrick J. Sweeney to Spinal Generations, LLC. Plaintiff believes that this assignment was effective to transfer the full and exclusive right, title, and interest in the 599 Patent to Spinal Generations, LLC. 11. Out of an abundance of caution, after discovering and correcting the naming

mistake as described above in Paragraph 2, Plaintiff executed, on May 16, 2012, a Confirmation of Assignment for most of Patrick J. Sweeneys pending patent applications and issued patents, including the 599 Patent. This Confirmation of Assignment affirms that (to the extent the original assignment of the 599 Patent was unsuccessful, void, or transferred less than the full and exclusive right, title, and interest of the 599 Patent because of its use of the name Spinal Generations, LLC): (1) the 599 Patent is assigned to Spinal Generations, LLC; and (2) any interest that Patrick J. Sweeney still possessed in the 599 Patent, including the full and exclusive right, title, interest, and right to sue for past infringement, is transferred to, Spinal Generations, LLC. 12. Spinal Generations informed Atlas Spine of its rights to the 599 Patent at least as

early as July 29, 2011, when counsel for Spinal Generations sent a cease-and-desist letter to Atlas Spine, stating that Atlas Spine was offering for sale a system under the STATURE name that infringed the 599 Patent. A true and correct copy of this letter is attached hereto as composite Exhibit 3. 13. On information and belief, on or about November 2-5, 2011, representatives of

Atlas Spine attended the North American Spine Societys 26th Annual Meeting (the NASS Meeting) in Chicago, Illinois. On information and belief, at the NASS Meeting, representatives

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of Atlas Spine promoted the STATURE system by, inter alia, distributing product information on the STATURE system, and displaying the STATURE system. 14. Atlas Spine advertises and markets the STATURE system on its website,

www.atlasspine.com. This website and the contained information regarding the STATURE system is freely accessible and available to anyone with an Internet connection. 15. On information and belief, Atlas Spine instructs customers and potential

customers about the STATURE system and uses of the system, including infringing uses, through, inter alia, its distribution of product information which illustrates to readers how to use the STATURE system in a manner that infringes at least one of the claims of the 599 Patent. One example of this type of activity is the exhibition of the STATURE system and distribution of information regarding the same at the NASS Meeting as described above in Paragraph 13. Another example of this type of activity is the advertising and marketing of the STATURE system on Atlas Spines website as described in Paragraph 14. COUNT I: DIRECT INFRINGEMENT OF THE 599 PATENT 16. Spinal Generations realleges and incorporates by reference paragraphs 1-15 of

this Complaint as if fully set forth herein. 17. Atlas Spine has directly infringed and continues to directly infringe the 599

Patent by, among other activities, making, using, offering to sell, and/or selling its STATURE system in the United States, in a manner which is covered by one or more claims of the 599 Patent in violation of 35 U.S.C. 271(a). 18. Atlas Spines direct infringement has occurred with actual knowledge of the 599

Patent at least as early as July 29, 2011, when counsel for Spinal Generations sent a cease-and-

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desist letter to Atlas Spine stating that Atlas Spine was offering for sale a system under the STATURE name that infringed the 599 Patent. (Ex. 3.) 19. Atlas Spines direct infringement of the 599 Patent has been willful in violation

of 35 U.S.C. 284 2. 20. Atlas Spines direct infringement has injured Spinal Generations and Spinal

Generations is entitled to recover damages adequate to compensate it for such infringement, but in no event less than a reasonable royalty. COUNT II: INDUCED INFRINGEMENT OF THE 599 PATENT 21. Spinal Generations realleges and incorporates by reference paragraphs 1-20 of

this Complaint as if fully set forth herein. 22. Atlas Spine has indirectly infringed and continues to indirectly infringe one or

more claims of the 599 Patent by actively inducing infringement of those claims by others in violation of 35 U.S.C. 271(b). 23. On information and belief, Atlas Spines customers directly infringe the 599

Patent by purchasing the STATURE system from Atlas Spine and subsequently engaging in infringing activity in violation of 35 U.S.C. 271(a). 24. Atlas Spines active inducement of infringement has occurred with actual

knowledge of the 599 Patent at least as early as July 29, 2011, when counsel for Spinal Generations sent a cease-and-desist letter to Atlas Spine stating that Atlas Spine was offering for sale a system under the STATURE name that infringed the 599 Patent. (Ex. 3.) 25. Atlas Spines active inducement of infringement has occurred with the specific

intent of encouraging others to infringe the 599 Patent as demonstrated by, inter alia, promoting and advertising the STATURE system on its website and at trade shows such as the NASS

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Meeting, and by instructing customers and potential customers about the STATURE system and uses of the system, including uses that infringe one or more claims of the 599 Patent. 26. Atlas Spines active inducement of infringement has been willful in violation of

35 U.S.C. 284 2. 27. Atlas Spines active inducement of infringement has injured Spinal Generations

and Spinal Generations is entitled to recover damages adequate to compensate it for such infringement, but in no event less than a reasonable royalty. COUNT III: CONTRIBUTORY INFRINGEMENT OF THE 599 PATENT 28. Spinal Generations realleges and incorporates by reference paragraphs 1-27 of

this Complaint as if fully set forth herein. 29. Atlas Spine has indirectly infringed and continues to indirectly infringe one or

more claims of the 599 Patent by contributorily infringing those claims based on others direct infringement in violation of 35 U.S.C. 271(c). 30. On information and belief, Atlas Spines customers directly infringe the 599

Patent by purchasing the STATURE system from Atlas Spine and subsequently engaging in infringing activity in violation of 35 U.S.C. 271(a). 31. Atlas Spines contributory infringement has occurred with actual knowledge of

the 599 Patent at least as early as July 29, 2011, when counsel for Spinal Generations sent a cease-and-desist letter to Atlas Spine stating that Atlas Spine was offering for sale a system under the STATURE name that infringed the 599 Patent. (Ex. 3.) 32. On information and belief, Atlas Spines contributory infringement has occurred

with knowledge that the STATURE system is especially made or adapted for a use that infringes one or more claims of the 599 Patent and is not suitable for substantial non-infringing uses.

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33. 284 2. 34.

Atlas Spines contributory infringement has been willful in violation of 35 U.S.C.

Atlas Spines contributory infringement has injured Spinal Generations and

Spinal Generations is entitled to recover damages adequate to compensate it for such infringement, but in no event less than a reasonable royalty. DEMAND FOR JURY TRIAL 35. Spinal Generations hereby demands a jury trial on all issues so triable. PRAYER FOR RELIEF Wherefore, Spinal Generations respectfully requests that this Court enter judgment in its favor and grant the following relief: A. A judgment that Atlas Spine has directly infringed the 599 Patent, induced

infringement of the 599 Patent, and contributorily infringed the 599 Patent; B. A permanent injunction enjoining Atlas Spine and its affiliates, subsidiaries,

officers, directors, employees, agents, representatives, licensees, successors, assigns, parent and subsidiary corporations, and all those acting for any of them or on their behalf, or acting in concert with them, from further infringement of the 599 Patent; C. D. A judgment that Atlas Spines infringement has been willful; A judgment and order requiring Atlas Spine to pay Spinal Generations damages

under 35 U.S.C. 284, including supplemental damages for any continuing post-verdict infringement up until entry of the final judgment, with an accounting, as needed, and treble damages for willful infringement as provided by 35 U.S.C. 284; E. An award of attorneys fees incurred in prosecuting this action, on the basis that

this is an exceptional case;

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F.

A judgment and order requiring Atlas Spine to pay Spinal Generations the costs

of this action, including all disbursements; G. A judgment and order requiring Atlas Spine to pay Spinal Generations pre-

judgment and post-judgment interest on the damages awarded; and H. Further relief as the Court may deem just and proper. Respectfully submitted,

Dated: August 13, 2012

OF COUNSEL: Jeffrey N. Costakos Kevin J. Malaney FOLEY & LARDNER LLP 777 East Wisconsin Avenue Milwaukee, Wisconsin 53202-5306 (414) 271-2400 (t) (414) 297-4900 (f) jcostakos@foley.com kmalaney@foley.com

/s/ Andrew M. Gross Andrew M. Gross (ARDC # 6299917) FOLEY & LARDNER LLP 321 North Clark Street, Suite 2800 Chicago, Illinois 60654-5313 (312) 832-4500 (t) (312) 832-4700 (f) agross@foley.com Counsel for Plaintiff Spinal Generations, LLC

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