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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION BIOMEDICAL ENTERPRISES, INC.

Plaintiffs, v. SOLANA SURGICAL, LLC, Defendant. ) ) ) ) ) ) ) ) ) )

Civil Action No. 1:14-cv-00095 JURY TRIAL DEMANDED

PLAINTIFFS COMPLAINT FOR PATENT INFRINGEMENT Plaintiff Biomedical Enterprises, Inc. in its complaint against defendant Solana Surgical, LLC (Defendant) respectfully alleges as follows: THE PARTIES 1. Plaintiff BioMedical Enterprises, Inc. (BME) is a corporation organized and

existing under the laws of the State of Texas with a principal place of business within the Western District of Texas at 14785 Omicron Drive, Suite 205, San Antonio, Texas 78245. 2. BioMedical Enterprises is a reconstructive bone fusion product company and the

worldwide leader in the understanding of memory metal and its orthopedic applications. BME was the first company to introduce above body temperature shape changing memory metal staples to the U.S., the first to develop and patent a method of controlling their compressive forces and the only U.S.-based memory metal small bone implant manufacturer. The BME implants are fabricated from Nitinol, a nickel-titanium alloy, and change shape when exposed to predetermined temperatures to provide fixation of bone or soft tissue to bone. The implants are provided in sterile ready-to-use packaging for various procedures, including hammertoe and other foot conditions, wrist and hand arthritis, and high tibial osteotomy.
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3.

On information and belief, Defendant is a Tennessee corporation with its principal

place of business located at 6363 Poplar Avenue, Suite 312, Memphis TN 38119. JURISDICTION AND VENUE 4. This action for patent infringement arises under the patent laws of the United

States, Title 35 of the United States Code. 5. This Court has subject matter jurisdiction over this action under 28 U.S.C. 1331

(jurisdiction over federal questions) and 28 U.S.C. 1338(a) (jurisdiction over civil actions arising under any Act of Congress relating to patents). 6. This Court has personal jurisdiction over Defendant. On information and belief,

Defendant is subject to this Courts specific and general personal jurisdiction pursuant to due process and/or the Texas Long Arm Statute, due at least to Defendants substantial business in this forum, including: (i) at least a portion of the infringements alleged herein; and (ii) regularly doing or soliciting business, engaging in other persistent courses of conduct, and/or deriving substantial revenue from goods and services provided to individuals in Texas and in this district. Upon information and belief, Defendant is selling and offering to sell, and has within a reasonable period prior to the filing of this action, sold and offered to sell its products, including one or more of the infringing products, such as its FuseFORCE Fixation System, to customers in this state and in this district, either directly or indirectly. 7. Venue is proper in this district pursuant to 28 U.S.C. 1391(b) and 1400(b). COUNT I: INFRINGEMENT OF U.S. PATENT NO. 8,584,853 8. forth herein. 9. On November 19, 2013, United States Patent No. 8,584,853 (the 853 Patent) BME repeats and re-alleges the allegations of paragraphs 1 through 7 as if fully set

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entitled METHOD AND APPARATUS FOR AN ORTHOPEDIC FIXATION SYSTEM was duly and properly issued by the United States Patent and Trademark Office. A true and correct copy of the 853 Patent is attached to this Complaint as Exhibit A. 10. 853 Patent. 11. On information and belief, Defendant has infringed and continues to infringe one or Plaintiff BME is the assignee and owner of the right, title, and interest in and to the

more claims of the 853 Patent in violation of 35 U.S.C. 271(a) in the United States by making, using, offering to sell, or selling products that infringe one or more claims of the 853 Patent, including, without limitation, claim 15. Defendants infringing products include, but are not limited to, the FuseFORCE Fixation System. 12. On information and belief, Defendant either knew of the 853 Patent or was

willfully blind in order not to become aware of the 853 Patent. Defendant also has knowledge of the 853 Patent and the infringement of it as of the filing of this Complaint. 13. On information and belief, Defendant also has infringed and continues to infringe

one or more of the claims of the 853 Patent in violation of 35 U.S.C. 271(b) and/or (c) in this judicial district and elsewhere in the United States by actively inducing others to infringe and/or contributing to the infringement by selling the system to doctors located within this judicial district and elsewhere, and actively encouraging the doctors to use the system. 14. On information and belief, Defendant has acted in concert with users of its

infringing products, such as doctors located within this judicial district and elsewhere, to infringe the 853 Patent. Defendant continues to knowingly induce infringement and possesses specific intent to encourage its users infringement. 15. BME has suffered irreparable harm as a result of Defendant's infringement of the

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853 Patent and will continue to suffer irreparable harm unless Defendant is enjoined from infringing the 853 Patent. 16. BME has suffered and will continue to suffer monetary damages as a result of

Defendant's infringement of the 853 Patent. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request this Court: a. To enter a judgment in favor of BME that Defendant has infringed the 853 Patent in violation of 35 U.S.C. 271(a), (b), and/or (c); b. To enter orders enjoining Defendant and its officers, agents, employees, and all persons in active concert or participation with any of the foregoing, from further infringement in violation of 35 U.S.C. 271(a), (b), and/or (c); c. To award BME its damages in amounts sufficient to compensate it for Defendants infringement, together with pre-judgment and post-judgment interest and costs, pursuant to 35 U.S.C. 284; d. To find Defendants infringement willful and award treble the amount of damages and losses sustained by BME as a result of Defendants infringement under 35 U.S.C. 284; e. To declare this case to be exceptional under 35 U.S.C. 285 and to award BME its attorneys fees, expenses, and costs incurred in this action; and f. To award BME any and all other relief to which this Court deems just and proper.

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DEMAND FOR JURY TRIAL BME respectfully requests a trial by jury of any and all issues on which a trial by jury is available under applicable law. Dated: January 30, 2014 Respectfully submitted, FISH & RICHARDSON P.C. By: /s/ David M. Hoffman William T. Jacks Texas Bar No. 10452000 Jacks@fr.com David M. Hoffman Texas Bar No. 24046084 Hoffman@fr.com 111 Congress Avenue, Suite 810 Austin, Texas 78701 Telephone (512) 472-5070 Facsimile (512) 320-8935 COUNSEL FOR BIOMEDICAL ENTERPRISES, INC

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