UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
COLOPLAST A/S, )
)
Plaintiff, ) Civil Action No. ________
)
v. ) COMPLAINT AND
) DEMAND FOR JURY TRIAL
MPATHY MEDICAL DEVICES, INC., )
)
Defendant. )
)
Plaintiff Coloplast A/S alleges against Defendant Mpathy Medical Devices, Inc. as
follows:
PARTIES
1. Plaintiff Coloplast A/S (“Coloplast”) is a Danish corporation headquartered in
Humlebaek, Denmark. Coloplast has a subsidiary, Coloplast Corp., which operates in the United
States and is headquartered in Minneapolis, Minnesota.
2. Defendant Mpathy Medical Devices, Inc. (“Mpathy”), on information and belief,
is a corporation organized and existing under the laws of Delaware, with its principal place of
business in the United States at 175 Paramount Drive, Raynham, Massachusetts, 02767.
JURISDICTION AND VENUE
3. This is an action for patent infringement arising under the patent laws of the
United States, 35 U.S.C. § 1, et seq.
4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
§§ 1331 and 1338(a).
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5. This Court has personal jurisdiction over Mpathy because, on information and
belief, Mpathy transacts business and has continuous and systematic contacts in this district,
maintains an ongoing presence within this district, and has purposefully availed itself of the
privileges and benefits of the laws of the Commonwealth of Massachusetts.
6. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) and (c),
and 1400(b).
PATENTS-IN-SUIT
7. On October 28, 2003, United States Patent No. 6,638,211 (“the ’211 patent”),
entitled “Method for Treating Urinary Incontinence in Women and Implantable Device Intended
to Correct Urinary Incontinence,” was duly and legally issued by the United States Patent and
Trademark Office. Coloplast was assigned and continues to hold all rights, title and interest in
the ’211 patent. A true and correct copy of the ’211 patent is attached as Exhibit A to this
Complaint.
8. On November 24, 2009, United States Patent No. 7,621,864 (“the ’864 patent”),
entitled “Method for Treating Urinary Incontinence in Women and Implantable Device Intended
to Correct Urinary Incontinence,” was duly and legally issued by the United States Patent and
Trademark Office. Coloplast was assigned and continues to hold all rights, title and interest in
the ’864 patent. A true and correct copy of the ’864 patent is attached as Exhibit B to this
Complaint.
FIRST CAUSE OF ACTION
INFRINGEMENT OF U.S. PATENT NO. 6,638,211
9. Coloplast realleges and incorporates by reference paragraphs 1 through 8 as if
fully stated herein.
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10. Mpathy, on information and belief, markets female urinary incontinence slings
and related surgical needles that are used by medical professionals in practicing a transobturator
surgical technique (“Mpathy products”) covered by one or more claims of the ’211 patent. The
Mpathy products include its Minitape and Omnisure products.
11. Mpathy, on information and belief, has knowledge of the ‘211 patent and, in
marketing and selling its Mpathy products, encourages and/or instructs third parties, including
medical professionals, to use Mpathy products in a manner that infringes at least one claim of the
’211 patent. Mpathy’s acts of encouragement and instruction to third parties include, for
example, the following statement on Mpathy’s website:
(Source: http://www.mpathymedical.com/foundations/store/storepage.asp?page=omnisure
(last visited Feb. 8, 2010).)
12. Accordingly, Mpathy, on information and belief, has infringed and is infringing
the ’211 patent in violation of 35 U.S.C. § 271 by using Mpathy products with a transobturator
surgical technique, actively inducing medical professionals to use Mpathy products with a
transobturator technique, and/or contributing to the surgical use of Mpathy products with a
transobturator technique.
13. Mpathy’s acts of infringement have caused and continue to cause damage to
Coloplast, and Coloplast is entitled to recover from Mpathy the damages sustained by Coloplast
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in an amount subject to proof at trial. Mpathy’s acts of infringement will irreparably injure
Coloplast unless and until such infringing activities are enjoined by this Court.
SECOND CAUSE OF ACTION
INFRINGEMENT OF U.S. PATENT NO. 7,621,864
14. Coloplast realleges and incorporates by reference paragraphs 1 through 13 as if
fully stated herein.
15. Mpathy, on information and belief, has knowledge of the ‘864 patent and, in
marketing and selling its Mpathy products, encourages and instructs third parties, including
medical professionals, to use Mpathy products in a manner that infringes at least one claim of the
’864 patent. Mpathy’s acts of encouragement and instruction to third parties include, for
example, the statement from Mpathy’s website that is reproduced above in paragraph 11.
16. Accordingly, Mpathy, on information and belief, has infringed and is infringing
the ’864 patent in violation of 35 U.S.C. § 271 by using Mpathy products with a transobturator
surgical technique, actively inducing medical professionals to use Mpathy products with a
transobturator surgical technique, and/or contributing to the surgical use of Mpathy products
with a transobturator technique.
17. Mpathy’s acts of infringement have caused and continue to cause damage to
Coloplast, and Coloplast is entitled to recover from Mpathy the damages sustained by Coloplast
in an amount subject to proof at trial. Mpathy’s acts of infringement will irreparably injure
Coloplast unless and until such infringing activities are enjoined by this Court.
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PRAYER FOR RELIEF
WHEREFORE, Coloplast respectfully requests this Court:
A. To enter judgment that Mpathy has infringed the ’211 and ’864 patents in
violation of 35 U.S.C. § 271;
B. To enter orders preliminarily and permanently enjoining Mpathy and its officers,
agents, servants, employees, attorneys, and all persons in active concert or participation with any
of the foregoing, who receive actual notice by personal service or otherwise of the orders, from
infringing the ’211 and ’864 patents in violation of 35 U.S.C. § 271;
C. To award Coloplast its damages in amounts sufficient to compensate it for
Mpathy’s infringement of the ’211 and ’864 patents, together with pre-judgment and post-
judgment interest and costs, pursuant to 35 U.S.C. § 284;
D. To declare this case to be “exceptional” under 35 U.S.C. § 285 and to award
Coloplast its attorneys’ fees, expenses, and costs incurred in this action; and
E. To award Coloplast such other and further relief as this Court deems just and
proper.
DEMAND FOR JURY TRIAL
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Coloplast respectfully
requests a trial by jury of any and all issues on which a jury trial is available under applicable
law.
Dated: February 8, 2010 /s/ Anthony J. Fitzpatrick
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Anthony J. Fitzpatrick (BBO No. 564324)
Christopher S. Kroon (BBO No. 660286)
DUANE MORRIS, LLP
470 Atlantic Avenue
Suite 500
Boston, Massachusetts 02210
Phone: (857) 488-4200
Fax: (857) 488-4201
AJFitzpatrick@duanemorris.com
CSKroon@duanemorris.com
Of Counsel:
David J.F. Gross (pro hac vice to be filed)
Theodore M. Budd (pro hac vice to be filed)
Timothy E. Grimsrud (pro hac vice to be filed)
Jeya Paul (pro hac vice to be filed)
FAEGRE & BENSON LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota 55402-3901
Telephone: (612) 766-7000
Fax: (612) 766-1600
DGross@faegre.com
TBudd@faegre.com
TGrimsrud@faegre.com
JPaul@faegre.com
Attorneys for Coloplast A/S
fb.us.4791960.04
