FILED

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA
AUG 15 2011
EVANSVILLE DIVISION
U.S. CLERK'S OFFICE
MEAD JOHNSON NUTRITION COMPANY
) EVANSVILLE, INDIANA
)
Plaintiff,
) . _ Civil Action No.
V.
j 3 : 11 -cv- 1 0 () ilLV - V v ~ G H
) COMPLAINT
NESTLE S.A., NESTLE USA
)
INCORPORATED, and GERBER PRODUCTS
) Jury Trial Demanded
COMPANY d/b/a NESTLE INFANT
)
NUTRITION
)
)
Defendants.
)
Mead Johnson Nutrition Company by its undersigned attorneys, and for its Complaint
against Nestle S.A., Nestle USA Incorporated, and Gerber Products Company, allege as follows:
The Parties
1. Mead Johnson Nutrition Company ("Mead Johnson") is a corporation organized
and existing under the laws of the State of Delaware, having its principal place of business at
2701 Patriot Boulevard, Glenview, IL 60026.
2. Mead Johnson has its global operations center and North American headquarters
located at 2400 West Lloyd Expressway, Evansville, IN 47712, at which it employs
approximately 1200 persons.
3. On information and belief, Nestle S.A. ("Nestle S.A.") is a foreign corporation
organized and existing under the laws of Switzerland, having its principal place of business at
Avenue Nestle 55, CH-1800, Vevey, Switzerland.
4. On information and belief, Nestle USA Incorporated ("Nestle USA") is a
corporation organized and existing under the laws of the State of Delaware, having its principal
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place of business at 800 North Brand Boulevard, Glendale, CA 91203.
5. On infonnation and belief, Gerber Products Company ("Gerber") d/b/a Nestle
Infant Nutrition is a corporation organized and existing under the laws of the State of Michigan,
having its principal place of business at 12 Vreeland Road, 2nd floor, Florham Park, NJ 07932.
Nature of the Action
6. This is an action for patent infringement arising under the patent laws of the
United States, Title 35, United States Code, Sections 100 et seq.
Jurisdiction and Venue
7. This Court has jurisdiction over the subject matter of this action pursuant to
28 U.S.C. 1331 and 1338(a).
8. This Court has personal jurisdiction over Nestle S.A., Nestle USA, and Gerber by
virtue of, inter alia, their continuous and systematic contacts with, and substantial sales within,
this judicial district.
9. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391 and
1400(b).
The Patent
10. United States Patent No. 7,040,500 ("the '500 patent"), entitled "Container and
Scoop Arrangement," was duly and legally issued on May 9, 2006, to inventors Stuart
Klippennan, Hagins Fugate, Joseph Paul, George Nukuto, Cathy Smay, and Robin Wiggins.
The '500 patent was originally assigned to Bristol-Myers Squibb Company (BMS). BMS
subsequently assigned all rights in the '500 patent to MJN Restructuring Holdco, Incorporated,
which subsequently assigned all rights in the '500 patent to Mead Johnson. A true and correct
copy of the' 500 patent is attached hereto as Exhibit 1.
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The Infringing Conduct by Defendants
11. On or before March 1,2011, at a publically accessible Internet website having the
URL http://www.groceryheadguarters.com/articles/2011-03-0I/Baby-steps?print=true,
groceryheadquarters.com announced that Gerber would offer its new EasyScoop plastic
packaging in the spring of 20 11 :
This spring, Gerber will be expanding the Start Healthy, Stay Healthy Nutrition
System with a number of new products, including new EasyScoop plastic
packaging for its Good Start Infant Formula. The contoured handle makes the
container easier to grip and the wide-mouth opening is easier for scooping,
company officials note.
A printed version of the announcement as accessed on or about July 13, 2011 is attached hereto
as Exhibit 2.
12. On or about March 21, 2011, at a publicly accessible Internet website having the
URL http://news.gerber.com/pr/gerber/gerber-good-start-199350.aspx, Gerber disseminated a
Fact Sheet ("the Fact Sheet") describing a new infant formula powder package for use in
connection with Gerber's Good Start product. A printed version of the Fact Sheet as accessed
on or about July 13,2011 is attached hereto as Exhibit 3.
13. The Fact Sheet described the new infant formula powder package as a "new
EasyScoop plastic packaging with a contoured handle that is easy to grip and a wide-mouth
opening for easy scooping, plus two speedy scoop storage options to ease formula preparation."
14. The Fact Sheet visually depicted the exterior of the EasyScoopTM plastic
packaging.
15. A 23.2-ounce version of Gerber Good Start infant formula in the EasyScoopTN
plastic packaging was offered and available for sale in Illinois prior to the date of this complaint.
On information and belief, Nestle S.A., Nestle USA, and Gerber have continued to sell and
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currently sell various Gerber Good Start infant formula products in the EasyScoopTM plastic
packaging in the stream of commerce in this judicial district and throughout the United States.
16. Upon information and belief, Nestle S.A., Nestle USA, and Gerber have injected
the Gerber Good Start infant formula in the EasyScoopTM plastic packaging into the national
stream of commerce, including into this district.
Count I
Patent Infringement of the '500 Patent
17. Mead Johnson re-alleges and incorporates by reference paragraphs 1-16 as if fully
recited herein.
18. By engaging in the commercial manufacture, importation, use, offer for sale,
and/or sale of Gerber Good Start infant formula powder in the EasyScoopTM container, Nestle
S.A., Nestle USA, and Gerber have infringed under 35 U.S.C. 271(a), both literally and under
the Doctrine of Equivalents, one or more claims of the '500 patent.
19. The past and future sales of Nestle S.A., Nestle USA, and Gerber in this judicial
district and throughout the United States have harmed and will continue to harm Mead Johnson
both irreparably and financially. Such financial harm has resulted in damages not less than a
reasonable royalty.
20. The remaining stock of the EasyScoopTM container at Nestle S.A., Nestle USA,
and Gerber, as well as the remaining stock of the EasyScoopTM container in the hands of
distributors and resellers continue to harm Mean Johnson both irreparably and financially. Such
financial harm has resulted in damages not less than a reasonable royalty.
21. On information and belief, the actions of Nestle S.A., Nestle USA, and Gerber
constitute willful infringement of the '500 patent under 35 U.S.C. 284.
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22. On information and belief, the actions of Nestle S.A., Nestle USA, and Gerber are
causing and will continue to cause irreparable harm unless enjoined by this Court.
Count II
Inducing Patent Infringement of the '500 Patent
23. Mead Johnson re-alleges and incorporates by reference paragraphs 1-16 as if fully
recited herein.
24. By offering for sale, selling and advertising Gerber Good Start infant formula
powder in the EasyScoop container to consumers and various retailers, including
Babies"R"Us, Walgreens , and Amazon.com where the various retailers subsequently sold, or
offered for sale, to the public the Gerber infant formula powder in the EasyScoop containers
and the consumers have ultimately bought and used Gerber infant formula powder in the
EasyScoopTM containers, Nestle S.A., Nestle USA, and Gerber have actively induced
infringement under 35 U.S.C. 271(b), both literally and under the Doctrine of Equivalents, of
one or more claims of the' 500 patent.
25. On information and belief, Nestle S.A., Nestle USA, and Gerber had knowledge
that the induced acts constitute patent infringement.
26. On information and belief, the actions of Nestle S.A., Nestle USA, and Gerber
constitute willful infringement of the '500 patent under 35 U.S.C. 284.
27. On information and belief, the actions of Nestle S.A., Nestle USA, and Gerber are
causing and will continue to cause irreparable harm unless enjoined by this Court.
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Count III
Inducing Patent Infringement of the '500 Patent
28. Mead Johnson re-alleges and incorporates by reference paragraphs 1-16 as if fully
recited herein.
29. Via Nestle S.A.'s adoption, and subsequent sales, offers for sale and
advertisement, of Gerber Good Start infant formula powder in the EasyScoopTM container,
Nestle S.A. has induced Gerber to infringe under 35 U.S.C. 271(b), both literally and under the
Doctrine of Equivalents, one or more claims of the' 500 patent.
30. Via Nestle USA's adoption, and subsequent sales, offers for sale and
advertisement, of Gerber Good Start infant formula powder in the EasyScoopTM container,
Nestle USA has induced Gerber to infringe under 35 U.S.C. 271 (b), both literally and under the
Doctrine of Equivalents, one or more claims of the' 500 patent.
31. On information and belief, Nestle S.A. had knowledge that the induced acts
constitute patent infringement.
32. On information and belief, Nestle USA had knowledge that the induced acts
constitute patent infringement.
33. On information and belief, the actions of Nestle S.A., Nestle USA, and Gerber
constitute willful infringement of the '500 patent under 35 U.S.C. 284.
34. On information and belief, the actions of Nestle S.A., Nestle USA, and Gerber are
causing and will continue to cause irreparable harm unless enjoined by this Court.
Relief Requested
WHEREFORE, Plaintiff Mead Johnson respectfully prays for judgment:
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(a) That Nestle S.A., Nestle USA, and Gerber have infringed, literally and
under the Doctrine of Equivalents, one or more claims of the '500 patent by making, importing,
using, selling, and offering for sale Gerber infant formula powder in the EasyScoopTM container
in the manner explained above;
(b) That Nestle S.A., Nestle USA, and Gerber have induced others to infringe,
literally and under the Doctrine of Equivalents, one or more claims of the' 500 patent by making,
importing, using, selling, and offering for sale Gerber infant formula powder in the EasyScoopTM
container in the manner explained above;
(c) That via Nestle S.A.'s adoption, and subsequent sales, offers for sale and
advertisement, of Gerber Good Start infant formula powder in the EasyScoopTM container,
Nestle S.A. has induced Gerber to infringe, both literally and under the Doctrine of Equivalents,
one or more claims of the '500 patent;
(d) That via Nestle USA's adoption, and subsequent sales, offers for sale and
advertisement, of Gerber Good Start infant formula powder in the EasyScoopTM container,
Nestle USA has induced Gerber to infringe, both literally and under the Doctrine of Equivalents,
one or more claims of the '500 patent;
(e) Permanently enjoining Nestle S.A., Nestle USA, and Gerber, and their
officers, agents, servants, employees, privies, and others acting for, on behalf of, or in concert
with any of them, from infringing, or inducing infringement of, any of the claims of the '500
patent;
(f) Awarding a reasonable royalty to compensate Mead Johnson for all
remaining stock of the EasyScoopTM container, as well as the remaining stock of the EasyScoopTM
container in the hands of distributors and resellers;
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(g) Awarding damages adequate to compensate Mead Johnson for Nestle
S.A., Nestle USA, and Gerber's infringement of the '500 patent, and trebling the damages due to
Nestle S.A., Nestle USA, and Gerber's willful infringement of the '500 patent;
(h) Declaring this case exceptional under 35 U.S.C. 285 and granting Mead
Johnson its attorneys' fees; and
(i) Granting such other and further relief as this Court may deem just and
proper.
JurvDemand
Mead Johnson demands a jury trial on all issues so triable.
..
KA , & KAHN, LLP

By.- 'J /- (J\v -
Brian P. Williams, #1752-82
KAHN, DEES, DONOVAN & KAHN, LLP
501 Main Street, Suite 305
P.O. Box 3646
Evansville, IN 47735-3646
Telephone: (812) 423-3183
Facsimile: (812) 423-3841
E-mail: bwilliams@kddk.com
Attorneyfor Plaintiff
OF COUNSEL:
James C. Gumina
Jeremy E. Noe
Sarah 1. Duda
McDONNELL BOEHNEN
HULBERT & BERGHOFF LLP
300 South Wacker Drive
Chicago, Illinois 60606
(312) 913-0001
Attorneys for Plaintiff.
August It; , 2011
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