IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION PENNINGTON SEED, INC.

and GRASSLANZ TECHNOLOGY LIMITED, Plaintiffs, v. GARON HARTZELL and JOHN DOES 1-10, Defendants. CASE NO. 6:11-cv-03311

COMPLAINT

Plaintiffs Pennington Seed, Inc. and Grasslanz Technology Limited bring this action for damages and injunctive relief against Defendants Garon Hartzell and John Does 1-10 for the unauthorized use and sale of Plaintiffs patented products. Plaintiffs allege: JURISDICTION AND VENUE 1. This is an action for relief from patent infringement arising under the

Patent Laws of the United States, Title 35 of the United States Code. The subject matter of the patent-in-suit concerns the use of non-toxic endophytes in certain tall fescue grass cultivars. 2. This Court has subject matter jurisdiction over this patent action pursuant

to 28 U.S.C. 1331, as Plaintiffs claims arise under the laws of the United States, and 28 U.S.C. 1338, which provides that district courts have original jurisdiction over any civil action arising under any Act of Congress relating to patents. Supplemental jurisdiction is proper in this Court pursuant to 28 U.S.C. 1367 over all of Plaintiffs non-federal question claims because they form a part of the same case or controversy.

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Venue is proper in this district pursuant to 28 U.S.C. 1391, as a

substantial part of the events giving rise to the claims occurred in this district. THE PARTIES 4. Plaintiff Pennington Seed, Inc. (Pennington) is a for-profit corporation

organized under the laws of Delaware with its principal place of business located in Madison, Morgan County, Georgia. Pennington is the exclusive licensee in the United States of the patentin-suit and enjoys along with Grasslanz Technology Limited the legal right to bring this cause. 5. Plaintiff Grasslanz Technology Limited (Grasslanz) is a corporation

organized under the laws of New Zealand with its principal place of business located in Hamilton, New Zealand. Grasslanz is registered to do business within the United Stated through its wholly owned subsidiary, AgResearch (USA) Limited. Grasslanz is the owner of the patentin-suit and has granted Pennington an exclusive license to the patent-in-suit in the United States. 6. Defendant Garon Hartzell is an individual residing in Everton, Dade

County, Missouri. Hartzell is alleged herein to have infringed the patent-in-suit by replanting and selling without authority Jesup tall fescue grass seed containing the patented MaxQ endophyte technology. 7. Defendant John Does 1-10 are persons and entities who provided or used

services or goods that facilitated, enabled, or contributed to Hartzells infringement of the patentin-suit in the manner described herein. On information and belief, most or all John Doe Defendants reside within the state of Missouri. FACTS 8. Plaintiffs are in the business of producing, marketing, licensing, and

selling certain grasses known to benefit livestock. Plaintiffs market their grasses through a

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variety of organizations including wholly owned subsidiaries, joint ventures, sales representatives, and independent dealers. 9. In the course of business, and only after the investment of substantial

research, time, and expense, Grasslanzs predecessor-in-interest, AgResearch Limited (AgResearch), developed products incorporating endophytes that form stable synthetic combinations with tall fescue, including the non-toxic endophyte known and identified in the United States marketplace as MaxQ. 10. In order to protect its interest and investment in the product known as

MaxQ, AgResearch applied to the United States Patent and Trademark Office for a patent prior to the introduction of MaxQ into the marketplace. 11. On August 29, 2000, U.S. Patent No. 6,111,170 (the 170 patent or the

patent-in-suit) entitled Tall Fescue Endophytes was duly and legally issued to the inventors named therein, who subsequently assigned their rights in such patent to AgResearch. 12. On July 1, 2004, AgResearch sold and assigned all its rights and interests

in and to the 170 patent and the underlying technology to Grasslanz. On July 1, 2008, Grasslanz licensed the technology protected by the 170 patent to Pennington, such that both parties are proper litigants to this action. 13. In connection with substantially all sales of MaxQ, Plaintiffs

conspicuously mark the MaxQ products with a notice of patent rights under the 170 patent. Further, Plaintiffs make MaxQ available only under a limited license that grants the user the right to plant the seed for forage purposes, only. Users are expressly forbidden from saving, replanting, selling, or otherwise transferring any seed produced when MaxQ is planted and grown.

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14.

By virtue of the 170 patent and the limited license granted to end users of

the MaxQ product, the tall fescue products containing the non-toxic endophyte known as MaxQ can be grown, marketed, and sold only with Plaintiffs permission, in accordance with the patent laws of Title 35, United States Code. 15. Without authority, Defendant Hartzell harvested, saved, replanted, and

sold seed products embodying Plaintiffs patented MaxQ technology, all in violation of Plaintiffs patent rights. Defendant Hartzell identified the seed as MaxQ in the course of promoting and selling the seed to downstream producers. 16. Defendant Hartzell sold the harvested seed to other producers without

giving notice of Plaintiffs patent rights and the contractual restrictions associated with use of the MaxQ technology, thereby exposing Plaintiffs to further misuse and unauthorized replication of their patented technology by the downstream producers. 17. Defendant Hartzells sales also placed the reputation of the MaxQ

product at risk since it was sold without the rigorous production standards employed by Plaintiffs. 18. Defendant Hartzell received actual notice of Plaintiffs patent rights prior

to his infringing acts, and his infringing acts were thus knowing and willful. 19. On information and belief, John Doe Defendants 1-10 either unlawfully

supplied the infringing products to Defendant, purchased the infringing products from Defendant, or otherwise facilitated, enabled, or contributed to Defendant Hartzells infringement.

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COUNT I DAMAGES FOR INFRINGEMENT OF THE PATENT-IN-SUIT 20. paragraphs. 21. patent. 22. patent. 23. Defendants have committed acts of contributory infringement of one or Defendants have induced others to infringe one or more claims of the 170 Defendants willfully and directly infringed one or more claims of the 170 Plaintiffs incorporate by reference the allegations set forth in the foregoing

more claims of the 170 patent. 24. As a consequence of Defendants infringing activities, Plaintiffs have

suffered monetary damages for which they are entitled compensation in an amount to be determined, but in no event less than a reasonable royalty. 25. Further, Plaintiffs will suffer irreparable harm if Defendants are allowed to

harvest, sell, distribute, or dispose of additional quantities of Plaintiffs patented MaxQ product without restriction. Fescue seed is a fungible commodity, and MaxQ seed harvested by Defendants is critical evidence in this case. Existing fields planted with MaxQ will continue to generate seed that could constitute additional infringing materials, and the fields can be easily damaged or destroyed, such as by burning or tilling, leading to spoliation of evidence. 26. No adequate remedy at law exists against future infringements resulting

from a release of further seed by Defendants, and the injuries to Plaintiffs will continue unless and until the Court preliminarily and permanently enjoins the Defendants infringing activities. Plaintiffs request injunctive relief preventing Defendants from destroying or disposing of their

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existing fields as well as the harvested MaxQ fescue seed, until such time as Plaintiffs can ascertain the amount of illegally planted and harvested MaxQ seed. COUNT II CONVERSION 27. paragraphs. 28. 29. without permission. 30. As a result of Defendants actions, Plaintiffs are entitled to recover Defendants are exercising dominion and control over patented technology. Defendants have converted the patented technology to their own use Plaintiffs incorporate by reference the allegations set forth in the foregoing

compensatory damages. 31. As Defendants conversion of the intellectual property was done willfully

and maliciously, with reckless disregard for Plaintiffs rights, Plaintiffs are entitled to an award of punitive damages. RELIEF DEMANDED WHEREFORE, Plaintiffs pray for relief and judgment as follows: a) That the Defendants be declared to have infringed, induced others to infringe, and/or committed acts of contributory infringement with respect to the claims of the 170 patent; That the Defendants, their officers, agents, employees, parents, subsidiaries, affiliates, successors, and all others in active concert or participation with them or acting on their behalf be preliminarily and permanently enjoined from further infringement of the 170 patent; That the Defendants, their officers, agents, employees, parents, subsidiaries, affiliates, successors, and all others in active concert or participation with them or acting on their behalf be temporarily restrained from destroying, selling, or otherwise transferring or disposing of grass and grass seed currently in their possession;

b)

c)

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d)

That the Defendants be ordered to account for pay to Plaintiffs all damages caused to Plaintiffs in an amount adequate to compensate Plaintiffs for the infringement and conversion of the 170 patent, but in no event less than a reasonable royalty; That the Court treble the damages awarded for the infringement pursuant to 35 U.S.C. 284; That Plaintiffs be granted prejudgment and post-judgment interest on the damages caused to them by reason of Defendants infringement and conversion of the 170 patent; That this be declared an exceptional case pursuant to 35 U.S.C. 285 and that Defendants be ordered to pay Plaintiffs attorneys fees and costs; That the Court award damages sufficient to compensate Plaintiffs for Defendants conversion of Plaintiffs intellectual property, together with interest and costs; That the Court award punitive damages for Defendants willful and malicious acts of conversion; and That the Court award such other relief to which Plaintiffs may be entitled.

e) f)

g) h)

i) j)

Respectfully submitted, PENNINGTON SEED, INC. and GRASSLANZ TECHNOLOGY LIMITED By: /s/ Mark Murphey Henry Mark Murphey Henry, Mo. Bar No. 58097 Henry Law Firm P.O. Box 8850 Fayetteville, AR 72703 Phone: (479) 695-1330 Fax: (479) 695-1332 mark@henrylawfirm.net

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