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COOLEY LLP ATTORNEYS AT LAW SAN DIEGO

COOLEY LLP ANTHONY M. STIEGLER (126414) (astiegler@cooley.com) DARCIE A. TILLY (239715) (dtilly@cooley.com) 4401 Eastgate Mall San Diego, CA 92121 Telephone: (858) 550-6000 Facsimile: (858) 550-6420 BONNIE W. MCLEOD (pro hac vice application forthcoming) (bweissmcleod@cooley.com) 777 6th Street, NW, Suite 1100 Washington, DC 20001 Telephone: (202) 842-7800 Facsimile: (202) 842-7899 Attorneys for Plaintiff GENOMATICA, INC.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Case No. '11CV2361 JAH BLM COMPLAINT FOR DECLARATORY JUDGMENT OF NONINFRINGEMENT AND INVALIDITY OF U.S. PATENT NO. 7,939,315 DEMAND FOR JURY TRIAL

GENOMATICA, INC., Plaintiff, v. EVOLUGATE, LLC; Defendant.

Plaintiff, for its complaint herein, alleges as follows: THE PARTIES 1. Plaintiff, Genomatica, Inc. (Genomatica) is a corporation incorporated under the

laws of the State of Delaware, and has its principal place of business at 10520 Wateridge Circle, San Diego, California 92121. 2. Defendant, Evolugate, LLC (Evolugate) is a Delaware limited liability

corporation, and does business at 2153 SE Hawthorne Rd, #15, Gainesville, Florida 32641. /// -1COMPLAINT FOR DECLARATORY JUDGMENT OF NONINFRINGEMENT AND INVALIDITY OF U.S. PATENT NO. 7,939,315

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COOLEY LLP ATTORNEYS AT LAW SAN DIEGO

JURISDICTION AND VENUE 3. This is a civil action for declaratory relief under the Federal Declaratory

Judgments Act, 28 U.S.C. 2201 and 2202. 4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

1331 and 1338 because Genomaticas claims for declaratory relief arise under the patent laws of the United States, 35 U.S.C. 101, et seq. 5. Venue is proper in this Court under 28 U.S.C. 1391. BACKGROUND 6. Originally incorporated in California in 1998, Genomatica is a leader in

sustainable chemicals. It creates greener intermediate and basic chemicals that are used in the production of products that are an indispensable part of everyday life. Instead of using oil or natural gas as the starting material for making these chemicals, Genomatica employs a biotechnology process for converting renewable sugars, biomass and other materials into specific industrial chemicals. Genomaticas technology allows it to select the most effective combination of pathways and microorganism to convert a given starting material, known as the feedstock, into a target chemical. Genomatica then employs an integrated approach to genetically engineer a high-performance version of the microorganism that redirects substantially all of its carbon and energy resources to maximize the production of a desired chemical. The microorganism acts as a miniature biological factory or catalyst for the conversion of a feedstock to a chemical in a highly efficient manner. 7. Genomaticas technology is based on multiple components. Those components

include, but are not limited to, the following: a. Genomatica has an array of software programs and algorithms that create

predictive models of the metabolism in different industrial microorganisms which allow it to evaluate and choose the best way to modify the microorganism in order to channel resources toward high-level production of target chemicals. b. Using omics-driven systems analysis, Genomatica is able to continuously

and rapidly analyze its data to determine how to engineer the microorganisms to increase -2COMPLAINT FOR DECLARATORY JUDGMENT OF NONINFRINGEMENT AND INVALIDITY OF U.S. PATENT NO. 7,939,315

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performance and to more efficiently use the feedstocks it is using in its commercial production processes. c. Genomatica uses directed enzyme evolution technologies to optimize each

enzyme and reaction step in the pathways, with the goal of enabling the engineered microorganism to more efficiently convert one chemical or metabolite into another. d. Genomatica may use standard random whole-cell mutagenesis methods to

generate more robust production microorganisms with the goal of being able to tolerate industrial conditions and high levels of chemical products. e. Genomatica can optimize the steps for creating the final chemical product,

including specific fermentation techniques, downstream product recovery techniques, and purification techniques to produce chemical products that meet industry specifications. 8. Upon information and belief, Evolugate was formed in 2005 and seeks to provide

technology to evolve microorganisms that are used in the biofuel, biodegradation, bioinsecticide industries markets. 9. At or around the second half of 2005, Genomatica and Evolugate began discussing

a potential collaboration between the two companies with Evolugate providing services to Genomatica in the form of evolving specific microorganisms. 10. To that end, in March 2006, Genomatica and Evolugate entered into a Mutual

Non-Disclosure Agreement which stated that disputes under the agreement are to be brought exclusively in the courts of San Diego County, California. 11. Genomatica and Evolugate also entered into a Proof of Concept Services

Agreement in May 2006. The agreement provided for Evolugate to provide microorganism evolution services to Genomatica regarding three strains of E. coli designed and engineered by Genomatica and one publicly available strain of E. coli and required Evolugate to deliver the evolved strains of microoranisms to Genomatica in San Diego, California for Genomaticas use and for the possible inclusion of the resulting data in connection with grant applications to be made by Genomatica. Evolugate was paid for its services and deliverables by Genomatica from Genomaticas offices in San Diego, California. -3COMPLAINT FOR DECLARATORY JUDGMENT OF NONINFRINGEMENT AND INVALIDITY OF U.S. PATENT NO. 7,939,315

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12.

At or around August 2006, Evolugates chief executive officer Eudes de Crcy

visited Genomatica in San Diego, California and met with several Genomatica employees for purposes of conducting business with Genomatica in San Diego. 13. Genomatica and Evolugate engaged in limited discussions regarding a commercial

agreement, but the discussions did not result in an agreement, in part due to Evolugates unreasonable and excessive overvaluation of the worth of its technology. 14. Genomatica developed technology for adaptive evolution of microorganisms that

is unrelated to, and not based upon, any Evolugate technology and does not infringe any Evolugate patent. 15. Evolugate filed a lawsuit in the Circuit Court of the 8th Judicial Circuit in and for

Alachua County, Florida against Genomatica and its chief executive officer Christophe Schilling on October 5, 2011 asserting, among other claims, claims of trade secret misappropriation. As part of that lawsuit, a letter was delivered to Genomatica accusing Genomatica of infringing a patent purportedly owned by Evolugate. EVOLUGATES WRONGFUL ACCUSATIONS OF PATENT INFRINGEMENT 16. Evolugate purports to own U.S. Patent No. 7,939,315 (the 315 Patent) entitled

Continuous Culture Apparatus With Mobile Vessel, Allowing Selection Of Filter Cell Variants which was issued on May 10, 2011. Evolugate purports to be the exclusive assignee of the 315 patent. A copy of the 315 Patent is attached hereto as Exhibit A. 17. On or around October 10, 2011, Evolugate, through its counsel, sent a letter to

Genomatica in which it charged Genomatica with infringement of the 315 Patent and one or more of the claims thereof by reason of the Genomaticas alleged use of a machine, apparatus or device that is used to evolve, culture and/or grow cells or microorganisms and/or any continuous culture technology. 18. Additionally, in the letter Evolugate explicitly informed Genomatica that if it did

not agree before October 12, 2011 to allow Evolugate to inspect all of Genomaticas proprietary devices and methods used in connection with Genomaticas purported continuous culture of organisms, Evolugate would take steps to protect its intellectual property rights. -4COMPLAINT FOR DECLARATORY JUDGMENT OF NONINFRINGEMENT AND INVALIDITY OF U.S. PATENT NO. 7,939,315

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FIRST CLAIM FOR RELIEF DECLARATORY JUDGMENT OF NONINFRINGEMENT OF U.S. PATENT NO. 7,939,315 19. herein. 20. 21. 22. Evolugate has accused Genomatica of infringing the claims of the 315 Patent. Genomatica has not infringed any valid, enforceable claims of the 315 Patent. Genomatica has not induced, and does not induce, infringement of any valid, Each of paragraphs 1-18 is incorporated by this reference, as though fully set out

enforceable claims of the 315 Patent. 23. Genomatica has not contributorily infringed, and does not contributorily infringe,

any valid, enforceable claims of the 315 Patent. 24. Thus, an actual justiciable case or controversy exists between Genomatica and

Evolugate as to whether Genomatica infringes the 315 Patent, which requires a declaration of rights by this Court. 25. Genomatica is entitled to a judicial determination and declaration that it has not

infringed and is not infringing directly, indirectly, contributorily, by active inducement, or otherwise, any valid and enforceable claim of the 315 Patent. SECOND CLAIM FOR RELIEF DECLARATORY JUDGMENT OF INVALIDITY OF U.S. PATENT NO. 7,939,315 26. herein. 27. An actual justiciable case or controversy exists between Genomatica and Each of paragraphs 1-25 is incorporated by this reference, as though fully set forth

Evolugate as to whether the 315 Patent is invalid, which requires a declaration of rights by this Court. 28. Genomatica contends that one or more claims of the 315 Patent is invalid for

failure to meet one or more of the conditions of patentability specified in 35 U.S.C. 101, 102, 103, and/or 112. 29. On information and belief, Evolugate contends that each claim of the 315 Patent

is valid and enforceable. -5COMPLAINT FOR DECLARATORY JUDGMENT OF NONINFRINGEMENT AND INVALIDITY OF U.S. PATENT NO. 7,939,315

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30.

Genomatica is entitled to a judicial determination and declaration that one or more

of the claims of the 315 Patent are invalid. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests that the Court enter a judgment in its favor and against Evolugate as follows: 1. The Court enter a judgment that Genomatica does not infringe any valid and

enforceable claim of the 315 Patent; 2. 3. The Court enter a judgment that the claims of the 315 Patent are invalid; The Court enjoin Evolugate and its affiliates, subsidiaries, officers, directors,

agents, counsel, servants, employees, and all persons in active concert or participation with any of them from attempting to enforce the 315 Patent against Genomatica or anyone in privity with Genomatica, including its suppliers, successors, assigns, agents, customers, and/or potential customers; 4. A judgment that this case is exceptional pursuant to 35 U.S.C. 285, and that

Genomatica is entitled to recovery of its costs of suit, including reasonable attorneys fees; and 5. Grant Genomatica such other relief that the Court deems just and proper. JURY DEMAND Genomatica demands a trial by jury on all issues triable that are raised in the Complaint.

Dated: October 12, 2011

COOLEY LLP ANTHONY M. STIEGLER (126414)

s/ Anthony M. Stiegler (126414) __________________________ E-Mail: astiegler@cooley.com Attorneys for Plaintiff GENOMATICA, INC.
727793/SD

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COMPLAINT FOR DECLARATORY JUDGMENT OF NONINFRINGEMENT AND INVALIDITY OF U.S. PATENT NO. 7,939,315

JS 44 (Rev. 09/11)

CIVIL COVER SHEET

DEFENDANTS EVOLUGATE, LLC San Diego, California
County of Residence of First Listed Defendant
NOTE:

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS GENOMATICA, INC. (b)

County of Residence of First Listed Plaintiff

Gainesville, Florida

(EXCEPT IN U.S. PLAINTIFF CASES)

(IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c)

Attorneys (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

Anthony Stiegler (126414) COOLEY LLP 4401 Eastgate Mall San Diego, CA 92121 (858) 550-6000 II. BASIS OF JURISDICTION
1 U.S. Government Plaintiff U.S. Government Defendant

(Place an "X" in One Box Only)

Jonathan B. Morton K&L GATES LLP SE Financial Center, Suite 3900, 200 Biscayne Blvd. Miami, FL 33131 (305) 539-3300 III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X" in One Box for Plaintiff)
(For Diversity Cases Only) PTF 1 Citizen of This State Citizen of Another State Citizen or Subject of a Foreign Country 2 3 DEF 1 2 3 and One Box for Defendant) PTF DEF 4 4 Incorporated or Principal Place of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation OTHER STATUTES 375 False Claims Act 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/ Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes 5 6 5 6

'11CV2361 JAH BLM

3 Federal Question (U.S. Government Not a Party) 4 Diversity (Indicate Citizenship of Parties in Item III)

IV. NATURE OF SUIT (Place an "X" in One Box Only)

CONTRACT 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veteran's Benefits 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liability 196 Franchise PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Med. Malpractice CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education

TORTS PERSONAL INJURY 365 Personal Injury Product Liability 367 Health Care/ Pharmaceutical Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability PRISONER PETITIONS 510 Motions to Vacate Sentence Habeas Corpus: 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee Conditions of Confinement

FORFEITURE/PENALTY 625 Drug Related Seizure of Property 21 USC 881 690 Other

BANKRUPTCY 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157 PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark

REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

LABOR 710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 740 Railway Labor Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act

SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))

IMMIGRATION 462 Naturalization Application 463 Habeas Corpus Alien Detainee (Prisoner Petition) 465 Other Immigration Actions

FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff or Defendant) 871 IRSThird Party 26 USC 7609

V. ORIGIN
1 Original Proceeding

(Place an "X" in One Box Only)

Removed from State Court

Remanded from Appellate Court

4 Reinstated or Reopened

Transferred from another district

(specify)

6 Multidistrict Litigation

VI. CAUSE OF ACTION VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S) IF ANY
DATE

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause:

35 U.S.C. 101, et seq.

Complaint for Declaratory Judgment of Non-infringement and Invalidity

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23
(See instructions):

DEMAND $

CHECK YES only if demanded in complaint: Yes No JURY DEMAND: DOCKET NUMBER

JUDGE
SIGNATURE OF ATTORNEY OF RECORD

October 12, 2011

FOR OFFICE USE ONLY RECEIPT # AMOUNT

s/Anthony M. Stiegler, Attorney for Plaintiff Genomatica, Inc., astiegler@cooley.com

APPLYING IFP JUDGE MAG. JUDGE