THE UNITED STATES DISTRICT COURT IN THE UNITED STATES DISTRICT COURT FOR SOUTHERN DISTRICT OF TEXAS FOR

THE SOUTHERN DISTRICT OF TEXAS GALVESTON GALVESTON DIVISION INEOS LLC, INEOS USA LLC, Plaintiff, Plaintiff, v. v BERRY PLASTICS CORPORATION, BERRY PLASTICS CORPORATION, Defendant. Defendant.
$ $

$
$ $ $ $ $

Civil Action No. Civil Action No

JURY TRIAL DEMANDED JURY TRIAL DEMANDED

COMPLAINT FOR PATENT INFRINGEMENT Plaintiff, Ineos USA, LLC ("Ineos"), brings this complaint against Defendant, Berry LLC ("Ineos"), brings this complaint against Defendant, Berry Plastics Corporation ("BPC"), and in support thereof avers as follows: PARTIES PARTIES 1. 1. Ineos is a limited liability company organized and existing under the laws of the a limited liability company organized

State of Delaware with a place of business located at Marina View, 2600 South Shore Boulevard, 2600 South Shore Boulevard, at Delaware a League City, Texas 77573. League 77 573. 2. 2. Upon information and belief, BPC is a corporation organized and existing under BPC is a corporation organized and existing under information

the laws of the State of Delaware with a principal place of business located at 101 Oakley Street, State of Delaware with a principal place of business located at 101 Oakley Street, Evansville, IN 47710. JURISDICTION AND VENUE 3. 3. This Court has subject matter jurisdiction over this action for patent infringement over this action for patent infringement Court has subject matter

pursuant to 28 U.S.C. 1331 and 1338(a). pursuantto $$ 1331 and 1338(a). 4. 4. Venue is proper in the Southern District of Texas under 28 U.S.C. 1391(b) and Venue is proper in the Southem District of Texas under 28 U.S.C. $$ 1391(b) and

(c) and 1400(b). (c) and 1400(b).

1 1

5. 5.

it has minimum This Court has personal jurisdiction over BPC because: (i) it has minimum has personal jurisdiction over

contacts within the State arising Southern District of Texas, contacts within the State of Texas and the Southern District of Texas, in part, arising out of BPC's infringement of the patent in suit, which resulted in products offered for sale, sold and products sale, sold suit, which resulted infringement used in that State and judicial district; and judicial (ii) BPC has purposefully availed itself of the privileges of privileges purposefully availed

conducting business in the State of Texas and in the Southern District of Texas; (iii) BPC has Texas; the Southern conducting business in the sought protection and benefit from the laws of the State of Texas; and (iv) BPC has conducted Texas; and (iv) BPC has conducted State sought protection and benefit from and does conduct business within the State of Texas and within the Southern District of Texas, Texas and within the Southem District of Texas, State without limitation through its offices and other facilities located therein. therein. offrces 6. 6. More specifically, BPC, directly or through intermediaries (including distributors, intermediaries (including distributors, specifically,

retailers, and others) ships, distributes, offers for sale, sells and advertises its products to sells and advertises its products distributes, offers for retailers, consumers in the State of Texas and, more particularly, in the Southern District of Texas. State of Texas and, more particularly, in the Southern District of Texas. consumers in Defendant has purposefully and voluntarily placed one or more products, including, without or more products, including, without purposefully voluntarily Defendant limitation, bottle caps made using a molding method, including the use of a certain composition, of a certain composition, including limitation, that satisfies all of the elements of at least one of the claims of the patent in suit, into the stream at least one of the claims of the patent in suit, into the stream satisfies
consumers of commerce with the expectation that such products would be purchased and used by consumers and would such

in the Southern District of Texas. Such products placed into the stream of commerce by BPC Texas. Such products placed into the stream of commerce by BPC the Southern have been and continue to be purchased and used by consumers in the Southern District of Texas be purchased and used by consumers in the Southem District of Texas and the Galveston Division thereof.Thereby, as set forth more fully below, Defendant BPC has Galveston Division thereof. Thereby, as set forth more fully below, Defendant BPC has and infringed and continues to infringe the patent in suit and the resulting harm to Ineos occurs in suit and the resulting harm to Ineos occurs in infringe this judicial district.

2 2

INFRINGEMENT OF U.S. P PATENT 6,846,863 F

7

7. .

On 25,2005, United States Patent 6,846,863 ("the On January 25, 2005, United States Patent 6,846,863 ("the '863 patent" or "patent

Method of Making Shaped Objects From in suit") entitled "Polyethylene Composition and Method of Making Shaped Objects From suit") entitled "Polyethylene Composition

Same" was duly and legally issued after a full and fair examination and with Denis Plume and issued after full and fair examination and with Denis Plume and Same" Pascal Vanden Berghe properly identified as the named inventors. Pascal Vanden Berghe properly identified as the named inventors. All rights and interest in the rights and interest

`863 patent are owned by Plaintiff Ineos. '863 patent is attached and correct '863 patent are owned by Plaintiff Ineos. A true and correct copy of the '863 patent is attached as Exhibit hereto as Exhibit A. 8. 8.
The '863 patent is directed to a composition of matter comprised of high density '863 patent is directed to a composition of matter comprised of high density

polyethylene and a fully saturated fatty acid amide among other components and a method of components a method polyethylene and among making shaped products, such as, bottle caps, therefrom. Prior to the invention of this to the invention of this making shaped products, such as, bottle caps, therefrom. composition of matter, a bottle cap manufacturer would typically include a slip agent in the resin slip manufacturer used to make a bottle cap to lessen the force required to remove the cap.Docosemide was a cap. Docosemide was to lessen the force required commonly used slip agent in resins for bottle caps; however, it had the disadvantage of causing a it disadvantage of causing for bad odor and bad flavor in foodstuffs stored in contact with such bottle caps. Others sought to bad flavor in foodstuffs stored in contact with such bottle caps. Others sought address that problem by adding a quantity of a particular zeolite to the compositions to act as a problem the compositions a particular zeolite flavor and odor trap. Plume and Vanden Berghe discovered that the disadvantage could be trap. Plume and Vanden Berghe discovered that the disadvantage could be avoided, without adding zeolite, by using the unique composition of matter claimed in the patent zeolite, by using the unique composition of matter claimed in the patent in suit. 9. 9. Shortly after the conception of that invention, Ineos and its affiliated companies the conception of that invention, Ineos and its affiliated companies Shortly

began selling resins comprising the unique composition claimed in the patent in suit. It has been unique composition claimed in the patent suit. It has been selling praised for addressing and solving a substantial problem in connection with the sale, distribution for addressing and solving a substantial problem in connection with the sale, distribution and consumption of bottled water and has since enjoyed substantial commercial success. water and has since enjoyed substantial commercial success. and consumption 10. belief, BPC has begun making bottle caps employing a 10. Upon information and belief, BPC has begun making bottle caps employing a Upon information method that satisfies one or more claims of the patent in suit used in connection with the the patent in suit used in connection with the more claims satisfies method 3

manufacture, sale and distribution of consumable products, such as, bottled water, including manufacture, and distribution of consumable as, bottled water, including without limitation, as caps for Dasani brand bottled water. Hence, without permission or Dasani without limitation, as water. Hence, without permission or authority, BPC has directly infringed and continues to infringe the '863 patent pursuant to 35 35 authority, directly infringed continues to infringe the '863 patent pursuant U. S .0 . $ 271(a). U.S.C. 271(a). 11. 11. BPC's infringement of the '863 patent has caused and continues to cause damage BPC's infringement of the '863 patent has caused and continues to cause damage profits resulting from lost sales and price erosion. Plaintiff Ineos is to Ineos including lost profits resulting from lost sales and price erosion. Plaintiff Ineos is Ineos including entitled to receive from Defendant BPC the damages sustained by Ineos as a result of BPC's Defendant BPC damages sustained by Ineos as wrongful acts in an amount equal to Ineos' lost profits, but in no event less than aareasonable wrongful acts Ineos' lost profits, but in no event less than reasonable royalty. Upon information and belief, Defendant BPC will continue to infringe the '863 patent '863 patent royalty. Upon information and belief, Defendant BPC continue infringe causing damage to Plaintiff Ineos, including irreparable harm for which there is no adequate damage including irreparable is no adequate remedy at law, unless preliminarily and permanently enjoined by this Court. unless preliminarily permanently enjoined by Court. 12. 12. Upon information and belief, BPC has no objectively reasonable basis to continue information has no objectively reasonable basis continue to infringe the '863 patent after learning of said patent, including without limitation through the infringe the '863 patent after learning of said patent, including without limitation through service of this Complaint, and any continued infringing activities are in willful disregard of the Complaint, any continued infringing activities willful disregard property rights of Plaintiff Ineos and the patent in suit. As such, BPC's willful infringement of property rights of Plaintiff Ineos and the patent in As such, BPC's willful infringement the '863 patent entitles Plaintiff Ineos to recover enhanced damages pursuant to 35 U.S.C. 284, the'863 patent entitles Plaintiff Ineos to recover enhanced damages pursuant to 35 U.S.C. $ and this case presents exceptional circumstances entitling Plaintiff Ineos to recover its attorneys' fees incurred in prosecuting this action pursuant to 35 U.S.C. 285. prosecuting $ 285. PRAYER FOR RELIEF RELIEF WHEREFORE, Plaintiff prays that Defendant be cited to appear and answer herein; and Defendant cited appear and answer herein; V/HEREFORE, that upon final hearing, a final judgment be entered: afrnaljudgment entered: 1. 1. 2. 2. 3. 3. That United States Patent 6,846,863 is valid and enforceable; enforceable; That Defendant has directly infringed said patent pursuant to 35 U.S.C.. 271; 35 U.S.C $ Defendant That Defendant, its agents, servants, attorneys, employees, successors, and Defendant, its agents, servants, attorneys, employees, successors, and 4

assigns, and any and all persons, firms, associations, and corporations, acting by, through or any and all persons, frrms, associations, and corporations, acting by, through or pursuant to the direction of, Defendant, or in concert or in participation with Defendant, be pursuant direction of, Defendant, or in concert or in participation with Defendant, be preliminarily and permanently enjoined and restrained from (i) directly infringing U.S. Patent permanently enjoined restrained directly infringing U.S. Patent 6,846,863, or (ii) aiding, abetting or encouraging others in doing so. 4. 4. For an award of damages, in an amount equal to Ineos' lost profits but in no event lost profits but in

patent, less than a reasonable royalty due to Defendant's past and future infringement of the '863 patent, due Defendant's infringement a reasonable

prejudgment together with prejudgment and post-judgment interest; post judgment

5. 5.

That the Court find that BPC's post-suit infringement of the '863 patent has been post-suit infringement '863 patent has been

willful and that the damages arising therefrom be trebled in accordance with 35 U.S.C. 284; accordance $ 284; 6. 6. That the Court find that this case is exceptional, and that Plaintiff be awarded its that this case is exceptional, and that Plaintiff be awarded

attorneys' fees, costs and expenses incurred in this action in accordance with 35 U.S.C. 285; 35 U.S.C. $ 285; fees, costs and expenses incurred action in accordance and 7. 7. proper. For such other and further relief in law or equity as the Court may deem just and and as the Court may deem

JURY DEMAND
Plaintiff demands a trial by jury of all issues triable of right by jury. by Plaintiff demands a Respectfully submitted, submitted,

d(eal/ /f T. Michael Wall ATTORNEY-IN-CHARGE ATTORNEY-IN-CHARGE Texas Bar No. 20757300 Southern District ID No. 811 District ID No. 811 GARDERE WYNNE SEWELL LLP SEWELL GARDERE 1000 Louisiana St., Suite 3400 1000 Houston, TX 77002-5011 Houston, TX77002-5011 Tel: 713.276.5791 Tel: 713.276.5791 Fax: 713.276.6791 Fax 713.276.6791

Chris P. Perque Texas Bar No. 24005828 Bar No. 24005828 Southern District ID No. 23235 District ID No. 23235 GARDERE WYNNE SEWELL LLP GARDERE WYNNE SEV/ELL 1000 Louisiana St., Suite 3400 1000 Houston, TX 77002-5011 Houston, TX77002-5011 Tel: 713.276.5020 Tel: 713,276.5020 Fax: 713.276.6020 Fax: 713.276.6020 ATTORNEYS FOR PLAINTIFF INEOS USA, LLC

Gardere01 - 6274085v.2 Gardere0l 6274085v.2