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Michael K. Friedland (SBN: 157,217) Michael.Friedland@knobbe.com Lauren Keller Katzenellenbogen (SBN: 223,370) Lauren.Katzenellenbogen@knobbe.com Karen M. Cassidy (SBN: 272,114) Karen.Cassidy@knobbe.com KNOBBE, MARTENS, OLSON & BEAR, LLP 2040 Main Street, Fourteenth Floor Irvine, CA 92614 Phone: (949) 760-0404 Facsimile: (949) 760-9502 Attorneys for Plaintiffs, INNOVATIVE OPHTHALMIC PRODUCTS, INC. and DIOPTER TECHNOLOGIES, INC.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

INNOVATIVE OPHTHALMIC PRODUCTS, INC., a California Corporation, and DIOPTER TECHNOLOGIES, INC., a California Corporation, Plaintiffs, v. BIOD, LLC, a Delaware Limited Liability Company, Defendant.

Civil Action No. '13 CV1908 BEN NLS COMPLAINT FOR PATENT INFRINGEMENT DEMAND FOR JURY TRIAL

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Plaintiffs Innovative Ophthalmic Products, Inc. (IOP) and Diopter Technologies, Inc. (Diopter) (collectively, Plaintiffs) hereby complain of Defendant BioD, LLC (BioD) and allege as follows: I. THE PARTIES 1. Plaintiff Innovative Ophthalmic Products, Inc. is a corporation

organized and existing under the laws the State of California, having a principal place of business at 3184-B Airway Avenue, Costa Mesa, CA 92626. 2. Plaintiff Diopter Technologies, Inc. is a corporation organized and

existing under the laws of the State of California, having a principal place of business at 141 Powder House Boulevard, Suite 1, Somerville, MA 02144. 3. Upon information and belief, Defendant BioD, LLC is a limited

liability company organized and existing under the laws of the State of Delaware, having a principal place of business at 1715 Aaron Brenner Drive, Suite 204, Memphis TN 38120. 4. BioD regularly conducts business in, and has continuous and

systematic contacts with, the State of California and this judicial district. II. JURISDICTION AND VENUE 5. This is an action for patent infringement arising under the patent

laws of the United States, 35 U.S.C. 100, et seq., more particularly 35 U.S.C. 271 and 281. 6. This Court has subject matter jurisdiction in this action pursuant to

28 U.S.C. 1331 and 1338(a). 7. BioD is subject to this Courts specific and general personal

jurisdiction, because it has a continuous, systematic, and substantial presence in this judicial district, including by regularly doing and soliciting business and deriving revenue from goods and services provided to individuals in this Judicial District, and because it has committed at least a portion of the infringement alleged herein in this judicial district.
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8.

Venue is proper in this judicial district under 28 U.S.C. 1391(b)-

(d) and 1400(b). III. FIRST CLAIM FOR RELIEF: PATENT INFRINGEMENT (U.S. PATENT NO. 5,932,205) 9. Plaintiffs repeat and reallege paragraphs 1 through 8 as if set forth

specifically herein. 10. On August 3, 1999, the United States Patent and Trademark Office

duly and lawfully issued U.S. Patent No. 5,932,205 (the 205 patent) entitled Biochemical Contact Lens For Treating Photoablated Corneal Tissue and naming Ming X. Wang and Christopher P. Adams as inventors. A true and correct copy of the 205 patent is attached hereto as Exhibit A. 11. Diopter is the owner by assignment of all right, title, and interest in

the 205 patent. 12. IOP is the exclusive licensee of the 205 patent, with all substantial

rights, of the 205 patent. On March 1, 2012, Diopter granted IOP the exclusive right to make, use sell, offer for sale, import, export and otherwise commercialize products covered by the 205 patent. 13. BioD sells BioDOptix Amniotic Extracelluar Matrix

(BioDOptix), a dehydrated, extracellular membrane allograft derived from human amniotic tissue. 14. Upon information and belief, BioDs BioDOptix Amniotic

Extracelluar Matrix product is especially made or especially adapted for use in practicing the methods of the 205 patent and is not a staple article or commodity of commerce suitable for substantial noninfringing use. 15. Upon information and belief, BioD sells its BioDOptix Amniotic

Extracelluar Matrix product for practicing one or more claims of the 205 patent, knowing its product to be especially made or especially adapted for use in practicing the methods of the 205 patent. -2-

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16.

Upon information and belief, BioD through its agents, employees

and servants has, and continues to, knowingly, intentionally and willfully directly infringe the 205 patent in violation of 35 U.S.C. 271(a), by directly practicing methods covered by the 205 patent including, without limitation, Claims 8-10, 13, and 14 of the 205 patent. 17. Upon information and belief, BioD has taken active steps to

encourage others, including doctors, surgeons and ophthalmologists, to use BioDs BioDOptix products to practice the methods claimed in the 205 patent. For example, BioD has published case reports describing a clinical treatment protocol that practices the methods claimed in the 205 patent and has provided instructions to customers to use the BioDOptix products to practice the methods claimed in the 205 patent. 18. Upon information and belief, BioD knew of the 205 patent when it

encouraged others to use the methods claimed in the 205 patent and intended that others use BioDs products to practice the methods claimed in the 205 patent. 19. In violation of 35 U.S.C. 271(b), BioD is inducing infringement,

and shall continue to induce infringement, of one or more claims of the 205 patent, including without limitation, infringement of Claims 8-10, 13, and 14 of the 205 patent by inducing others, including doctors, surgeons, and ophthalmologists, to perform one or more of the claimed methods of the 205 patent including at least Claim 8-10, 13, and 14. 20. In violation of 35 U.S.C. 271(c), BioD is engaging in

contributory infringement, and shall continue to engage in contributory infringement, of one or more claims of the 205 patent, including without limitation, infringement of Claims 8-10, 13, and 14 of the 205 patent.

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21.

As a direct and proximate result of BioDs infringement of the 205

patent, Plaintiffs have been and will continue to be injured, and such acts will continue unless BioD is enjoined therefrom. 22. Upon information and belief, BioDs infringement of the 205

patent has been and continues to be willful and deliberate. 23. Upon information and belief, BioD has derived, received, and will

continue to derive and receive gains, profits and advantages from the aforesaid acts of infringement in an amount that is not presently known to Plaintiffs. By reason of the aforesaid infringing acts, Plaintiffs have been damaged, and are entitled to monetary relief in an amount to be proven at trial. PRAYER FOR RELIEF WHEREFORE, Plaintiffs IOP and Diopter pray for a judgment in their favor and against Defendant, BioD, for the following relief: A. For an Order declaring that the 205 patent was duly and legally

issued, is valid, and is enforceable; B. For an Order adjudging BioD to have infringed one or more claims

of the 205 patent; C. For an Order adjudging BioD to have willfully infringed one or

more claims of the 205 patent; D. For on Order that BioD, it officers, agents, servants, employees and

attorneys, and those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise, be preliminarily and permanently enjoined from directly or indirectly infringing the 205 patent; E. For a judgment entered against BioD awarding Plaintiffs all

damages proven at trial, and in no event less than a reasonable royalty, for infringement of the 205 patent pursuant to 35 U.S.C. 284;

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F.

For a recovery of treble damages pursuant to 35 U.S.C. 284, in an

amount to be determined at trial, as a result of BioDs willful and deliberate infringement of the 205 patent; G. For an Order deeming this to be an exceptional case within the

meaning of 35 U.S.C. 285, entitling Plaintiffs to an award of its reasonable attorneys fees, expenses and costs in this action; H. For an assessment of pre-judgment and post-judgment interest and

costs against BioD and in favor of Plaintiffs, and an award of this interest and costs to Plaintiffs; I. That Plaintiffs be awarded such other and further relief as this

Court may deem just and proper. KNOBBE, MARTENS, OLSON & BEAR, LLP Dated: August 16, 2013 By: /s/ Lauren Keller Katzenellenbogen Michael K. Friedland Lauren Keller Katzenellenbogen Karen M. Cassidy Attorneys for Plaintiffs, INNOVATIVE OPHTHALMIC PRODUCTS, INC. and DIOPTER TECHNOLOGIES, INC.

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15962651

JURY DEMAND Pursuant to Fed. R. Civ. P. 38(b), Plaintiffs Innovative Ophthalmic Products Inc. and Diopter Technologies, Inc. demand a trial by jury of all issues raised by this Complaint that are triable by Jury. KNOBBE, MARTENS, OLSON & BEAR, LLP

Dated: August 16, 2013

By: /s/ Lauren Keller Katzenellenbogen Michael K. Friedland Lauren Keller Katzenellenbogen Karen M. Cassidy Attorneys for Plaintiffs, INNOVATIVE OPHTHALMIC PRODUCTS, INC. and DIOPTER TECHNOLOGIES, INC.

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