Free COMPLAINT - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) ) ) ) ) ) )

OXFORD GENE TECHNOLOGY IP LIMITED, Plaintiff, v. BIOARRAY SOLUTIONS LTD., Defendant.

Civil Action No. 08- __________

JURY TRIAL DEMANDED

COMPLAINT FOR PATENT INFRINGEMENT Plaintiff Oxford Gene Technology IP Limited ("Oxford Gene Technology") for its complaint against Defendant BioArray Solutions Ltd. ("Bioarray") hereby demands a jury trial and alleges as follows: NATURE OF THE ACTION 1. This is a civil action for infringement of three United States Patents (collectively,

"the Patents-in-Suit"). This action is based upon the patent laws of the United States, 35 U.S.C. § 1 et seq. THE PARTIES 2. Plaintiff Oxford Gene Technology is a limited liability company organized under

the laws of England and Wales with its registered office and corporate headquarters at Begbroke Science Park, Sandy Lane, Yarntown, Oxford, OX5 1PF. 3. On information and belief Defendant Bioarray is a corporation organized under

the laws of the state of Delaware with an office and principal place of business located at 35 Technology Dr., Suite 100, Warren, New Jersey 07059.

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JURISDICTION AND VENUE 4. This Court has jurisdiction over the subject matter of this action pursuant to 28

U.S.C. §§ 1331 and 1338(a). 5. This Court has personal jurisdiction over Bioarray because Bioarray is

incorporated in the State of Delaware and has purposefully availed itself of the privilege of conducting activities within this State and District. 6. Venue is proper in this District under 28 U.S.C. §§ 1391(b)­(c) and 1400(b)

because Bioarray is subject to personal jurisdiction in this District. FACTS COMMON TO ALL COUNTS 7. Bioarray has made, used, offered to sell, sold, contributed to the use by others of,

or induced the use by others of, and continues to make, use, offer to sell, sell, contribute to the use by others of, and induce the use by others of Bioarray's "BeadchipTM products. 8. United States Patent No. 6,307,039 ("the `039 patent"), entitled "Method for

Analyzing a Polynucleotide Containing a Variable Sequence and a Set or Array of Oligonucleotides Therefor," was duly and legally issued on October 23, 2001 to Southern et al. A copy of the `039 patent is attached hereto as Exhibit 1. 9. United States Patent No. 6,770,751 ("the `751 patent"), entitled "Method for

Analysing a Polynucleotide Containing a Variable Sequence and a Set or Array of Oligonucleotides Therefor," was duly and legally issued on August 3, 2004 to Southern et al. A copy of the `751 patent is attached hereto as Exhibit 2. 10. United States Patent No. 7,192,707 ("the `707 patent"), entitled "Method for

Analyzing Polynucleotide Targets Using Tethered Oligonucleotide Probes," was duly and legally

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issued on March 20, 2007 to Southern et al. A copy of the `707 patent is attached hereto as Exhibit 3. 11. Each of the Patents-in-Suit was duly and legally assigned to Oxford Gene

Technology, and Oxford Gene Technology owns each of the Patents-in-Suit with the right to sue, enforce, and recover damages, including past damages, for all infringements of each of the Patents-in-Suit. COUNT I - INFRINGEMENT OF THE `039 PATENT 12. herein. 13. 14. The `039 patent is valid and enforceable. Bioarray has infringed, and is still infringing, either literally or under the doctrine Paragraphs 1 through 11 are incorporated by reference as though fully stated

of equivalents, at least one claim of the `039 patent in this District and elsewhere by making, using, importing, offering for sale, and/or selling its products, including at least its BeadchipTM products. 15. Bioarray has induced, and still is inducing, the infringement of the `039 patent in

this District and elsewhere by selling products, including at least its BeadchipTM products, that when used as intended and directed by Bioarray, infringe at least one claim of the `039 patent, either literally or under the doctrine of equivalents. 16. Bioarray has contributed to, and still is contributing to, the infringement of the

`039 patent in this District and elsewhere by selling products, including at least its BeadchipTM products, that are non-staple items that are not suitable for substantial non-infringing uses and that, when used as intended and directed by Bioarray, infringe at least one claim of the `039 patent, either literally or under the doctrine of equivalents.

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17.

On information and belief, Bioarray's infringement, active inducement of others'

infringement, and/or contributory infringement of the `039 patent has taken place with full knowledge of the `039 patent and has been intentional, deliberate, and willful. 18. `039 patent. 19. On information and belief, Bioarray will continue to infringe, actively induce Oxford Gene Technology has been damaged by Bioarray's infringement of the

others' infringement, and/or contributorily infringe the `039 patent. Oxford Gene Technology will thereby suffer irreparable injury, unless and until this Court enjoins Bioarray's infringement. COUNT II - INFRINGEMENT OF THE `751 PATENT 20. herein. 21. 22. The `751 patent is valid and enforceable. Bioarray has infringed, and is still infringing, either literally or under the doctrine Paragraphs 1 through 11 are incorporated by reference as though fully stated

of equivalents, at least one claim of the `751 patent in this District and elsewhere by making, using, importing, offering for sale, and/or selling its products, including at least its BeadchipTM products. 23. Bioarray has induced, and still is inducing, the infringement of the `751 patent in

this District and elsewhere by selling products, including at least its BeadchipTM products, that when used as intended and directed by Bioarray, infringe at least one claim of the `751 patent, either literally or under the doctrine of equivalents. 24. Bioarray has contributed to, and still is contributing to, the infringement of the

`751 patent in this District and elsewhere by selling products, including at least its BeadchipTM products, that are non-staple items that are not suitable for substantial non-infringing uses and

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that, when used as intended and directed by Bioarray, infringe at least one claim of the `751 patent, either literally or under the doctrine of equivalents. 25. On information and belief, Bioarray's infringement, active inducement of others'

infringement, and/or contributory infringement of the `751 patent has taken place with full knowledge of the `751 patent and has been intentional, deliberate, and willful. 26. `751 patent. 27. On information and belief, Bioarray will continue to infringe, actively induce Oxford Gene Technology has been damaged by Bioarray's infringement of the

others' infringement, and/or contributorily infringe the `751 patent. Oxford Gene Technology will thereby suffer irreparable injury, unless and until this Court enjoins Bioarray's infringement. COUNT III - INFRINGEMENT OF THE `707 PATENT 28. herein. 29. 30. The `707 patent is valid and enforceable. Bioarray has infringed, and is still infringing, either literally or under the doctrine Paragraphs 1 through 11 are incorporated by reference as though fully stated

of equivalents, at least one claim of the `707 patent in this District and elsewhere by making, using, importing, offering for sale, and/or selling its products, including at least its BeadchipTM products. 31. Bioarray has induced, and still is inducing, the infringement of the `707 patent in

this District and elsewhere by selling products, including at least its BeadchipTM products, that when used as intended and directed by Bioarray, infringe at least one claim of the `707 patent, either literally or under the doctrine of equivalents.

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32.

Bioarray has contributed to, and still is contributing to, the infringement of the

`707 patent in this District and elsewhere by selling products, including at least its BeadchipTM products, that are non-staple items that are not suitable for substantial non-infringing uses and that, when used as intended and directed by Bioarray, infringe at least one claim of the `707 patent, either literally or under the doctrine of equivalents. 33. On information and belief, Bioarray's infringement, active inducement of others'

infringement, and/or contributory infringement of the `707 patent has taken place with full knowledge of the `707 patent and has been intentional, deliberate, and willful. 34. `707 patent. 35. On information and belief, Bioarray will continue to infringe, actively induce Oxford Gene Technology has been damaged by Bioarray's infringement of the

others' infringement, and/or contributorily infringe the `707 patent. Oxford Gene Technology will thereby suffer irreparable injury, unless and until this Court enjoins Bioarray's infringement. PRAYER FOR RELIEF WHEREFORE, Plaintiff Oxford Gene Technology prays that this Court: A. Enter a judgment that Bioarray has infringed, actively induced others to infringe,

and/or contributorily infringed the Patents-in-Suit; B. Award Oxford Gene Technology damages in an amount sufficient to compensate

Oxford Gene Technology for Bioarray's infringement, active inducement of others' infringement, and/or contributory infringement of the Patents-in-Suit, but not less than a reasonable royalty; C. § 284; Award Oxford Gene Technology prejudgment interest pursuant to 35 U.S.C.

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D.

Award Oxford Gene Technology increased damages, pursuant to 35 U.S.C. § 284,

in an amount not less than three times the amount of actual damages awarded to Oxford Gene Technology, by reason of Bioarray's willful infringement of the Patents-in-Suit; E. Enter a permanent injunction enjoining Bioarray, its officers, directors, servants,

managers, employees, agents, attorneys, successors and assignees, and all persons in active concert or participation with any of them, from further acts of infringement of the Patents-inSuit, pursuant to 35 U.S.C. § 283; F. Declare this case exceptional under 35 U.S.C. § 285 and award Oxford Gene

Technology its reasonable attorneys' fees, expenses, and costs incurred in prosecuting this action; and G. Grant Oxford Gene Technology such other and further relief as this Court may

deem just and proper. JURY DEMAND Oxford Gene Technology hereby demands a jury trial on all issues appropriately triable by a jury.

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Dated: May 28, 2008 /s/ Richard K. Herrmann Richard K. Herrmann #405 Mary B. Matterer #2696 Amy Arnott Quinlan #3021 MORRIS JAMES LLP 500 Delaware Avenue, Suite 1500 Wilmington, Delaware 19801-1494 302-888-6800 [email protected] Of Counsel: KIRKLAND & ELLIS LLP Bryan S. Hales (6243060 (IL)) Adam R. Brausa (6292447 (IL)) Kirkland & Ellis LLP 200 East Randolph Drive Chicago, Illinois 60601 Telephone: 312-861-2000 Facsimile: 312-861-2200 [email protected] [email protected] Counsel for Plaintiff Oxford Gene Technology IP Limited

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CIVIL COVER SHEET
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 THE REVERSE OF THE FORM.) I. (a) PLAINTIFFS OXFORD GENE TECHNOLOGY IP LIMITED DEFENDANTS BIOARRAY SOLUTIONS LTD.
COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT

(IN U.S. PLAINTIFF CASES ONLY). (b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF (EXCEPT IN U.S. PLAINTIFF CASES) (c) ATTORNEYS (FIRM NAME, ADDRESS AND TELEPHONE NUMBER) ATTORNEYS (IF KNOWN) Richard K. Herrmann/Mary B. Matterer/Amy A. Quinlan Morris James LLP 500 Delaware Avenue, Suite 1500 Wilmington, DE 19801 302-888-6800 II. BASIS OF JURISDICTION (PLACE AN "X" IN ONE BOX ONLY) III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN "X" IN ONE BOX FOR PLAINTIFF (For Diversity Cases Only) AND ONE BOX FOR DEFENDANT) 1 U.S. Government 3 Federal Question PTF DEF PTF DEF Citizen of This State 1 1 Incorporated or Principal Place 4 4 Plaintiff (U.S. Government Not a Party) of Business In This State 2 U.S. Government 4 Diversity 2 2 Incorporated and Principal Place 5 5 Citizen of Another State Defendant (Indicate Citizenship of Parties of Business In Another State in Item III) 3 3 Foreign Nation Citizen or Subject of a Foreign County IV. ORIGIN (PLACE AN "X" IN ONE BOX ONLY) Transferred from 1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 another district 6 Multidistrict Proceeding State Court Appellate Court Reopened (specify) Litigation V. NATURE OF SUIT (PLACE AN "X" IN ONE BOX ONLY) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY
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 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 PERSONAL INJURY 362 Personal Injury Med. Malpractice 365 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 610 Agriculture 620 Other Food & Drug 625 Drug Related Seizure of Property 21 USC 881 630 Liquor Laws 640 R. R. & Truck 650 Airline Regs. 660 Occupational Safety/Health 690 Other 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157

6

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Appeal to District Judge from 7 Magistrate Judgment OTHER STATUTES
400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce/ICC Rates/etc. 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 891 Agricultural Arts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900 Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes 890 Other Statutory Actions

PROPERTY RIGHTS
820 Copyrights 830 Patent 840 Trademark

LABOR
710 Fair Labor Standards Act 720 Labor/Mgmt Relations 730 Labor/Mgmt Reporting & Disclosure Act 740 Railway Labor 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))

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

CIVIL RIGHTS
441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 440 Other Civil Rights

PRISONER PETITIONS
510 Motions to Vacate Sentence HABEAS CORPUS: 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Condition

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

VI. CAUSE OF ACTION

(CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE BRIEF STATEMENT OF CAUSE. DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY.)

Action for patent infringement under 35 U.S.C. §§ 271 et seq. VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S) IF ANY
DATE

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

DEMAND $

CHECK YES only if demanded in complaint: JURY DEMAND: YES NO

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

May 28, 2008
FOR OFFICE USE ONLY

/s/ Richard K. Herrmann

RECEIPT#

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

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INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS-44
Authority For Civil Cover Sheet
The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading 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. Consequently a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a) Plaintiffs ­ Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. IN U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". II. Jurisdiction. The bases of jurisdiction is set forth under Rule 8(a).F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below: federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS-44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge's decision. V. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section IV above, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23.F.R.Cv.P. Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS-44 is used to reference related pending cases in any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.

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UNITED STATES DISTRICT COURT
District of Delaware

OXFORD GENE TECHNOLOGY IP LIMITED, Plaintiff,

SUMMONS IN A CIVIL CASE

V.
BIOARRAY SOLUTIONS LTD., Defendant. CASE NUMBER:

TO: (Name and address of Defendant)
Bioarray Solutions Ltd. c/o Registered Agent - The Corporation Trust Company Corporation Trust Center 1209 Orange Street Wilmington, DE 19801

YOU ARE HEREBY SUMMONED and required to serve on PLAINTIFF'S ATTORNEY (name and address) Richard K. Herrmann, Esq. Mary B. Matterer, Esq. Amy A. Quinlan, Esq. Morris James LLP 500 Delaware Avenue, Suite 1500 Wilmington, DE 19801 302.888.6800

days after service an answer to the complaint which is served on you with this summons, within Twenty (20) of this summons on you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. Any answer that you serve on the parties to this action must be filed with the Clerk of this Court within a reasonable period of time after service.

CLERK

DATE

(By) DEPUTY CLERK

2002 © American LegalNet, Inc.

AO 440 (Rev. 8/01) Summons in a Civil Action

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RETURN OF SERVICE
Service of the Summons and complaint was made by me NAME OF SERVER (PRINT)
(1)

Check one box below to indicate appropriate method of service Served personally upon the defendant. Place where

Left copies thereof at the defendant's dwelling house or usual place of abode with a person of suitable age and discretion then residing therein. Name of person with whom the summons and complaint were Returned

Other (specify):

STATEMENT OF SERVICE FEES
TRAVEL SERVICES TOTAL

DECLARATION OF SERVER I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Return of Service and Statement of Service Fees is true and correct.

Executed on
Date Signature of Server

Address of Server

(1) As to who may serve a summons see Rule 4 of the Federal Rules of Civil Procedure.

2002 © American LegalNet, Inc.