IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA NUtech Ventures, a Nebraska non-profit corporation, Plaintiff,

Civil Action __________ v. Gruma Corporation and Azteca Milling, L.P., JURY TRIAL DEMANDED IN LINCOLN, NEBRASKA

Defendants.

ORIGINAL COMPLAINT This is an action for patent infringement in which Plaintiff, NUtech Ventures (NUtech) makes the following allegations against Defendants, Gruma Corporation (Gruma) and Azteca Milling, L.P. (Azteca Milling). PARTIES 1. Plaintiff NUtech Ventures is a Nebraska non-profit corporation with its principal

office at 1320 Q Street, Lincoln, Nebraska 68508. NUtech, a supporting organization and affiliate of the Board of Regents of the University of Nebraska, facilitates technology transfer and commercialization by forming partnerships between University researchers and the private sector. NUtech also negotiates and executes licenses and options related to University

technology, in addition to filing patents on behalf of faculty, staff, and student inventors. 2. On information and belief, Defendant Gruma is a Nevada corporation with its

corporate headquarters and principal place of business at 1159 Cottonwood Lane, Suite 200, Irving, Texas 75038. On information and belief, Mission Foods is a registered trade

name/assumed business name/fictitious business name of Gruma. Gruma operates primarily through its Mission Foods division, which produces tortillas and related products, and Azteca 1

Milling, which produces corn flour. On information and belief, Gruma operates twenty-two plants in the United States that manufacture and distribute packaged corn and wheat tortillas and related products under the MISSION and GUERRERO brand names, as well as other minor regional brands. Gruma also operates six plants in the United States that manufacture and distribute corn flour under the MASECA brand. Gruma Corporation serves industrial, retail, and foodservice customers. Gruma may be served via its registered agent for service of process, CSC-Lawyers Incorporating Service Company, Suite 1900, 233 South 13th Street, Lincoln, Nebraska 68508. 3. On information and belief, Defendant Azteca Milling is a Texas limited

partnership with its headquarters and principal place of business at 1159 Cottonwood Lane, Suite 100, Irving, Texas 75038. Gruma Corporation controls and owns an 80% interest in Azteca Milling. Grumas Azteca Milling subsidiary produces and supplies corn flour for Grumas Mission Foods operations in the United States. Azteca Milling may be served via its registered agent for service of process, Corporation Service Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701. JURISDICTION AND VENUE 4. This action arises under the patent laws of the United States, Title 35 of the

United States Code. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331 and 1338(a). 5. This Court has personal jurisdiction over Defendant Gruma. Gruma has

conducted and does conduct extensive commercial activities within the State of Nebraska. Through one of its Mission Foods operations, located at 4433 South 94th Street, Omaha, Nebraska 68127, Gruma owns facilities, employees, agents and business operations in Nebraska. In addition, Gruma, directly and/or through intermediaries (including other Gruma entities, 2

subsidiaries, distributors, agents, and others), manufactures, ships, distributes, offers for sale, sells, and/or advertises its products in the United States and the State of Nebraska. Gruma (directly and/or through intermediaries, including other Gruma entities, subsidiaries, distributors, agents, and others) has purposefully and voluntarily placed one or more of its products into the stream of commerce to serve the market in Nebraska. Grumas contacts with Nebraska have been and continue to be substantial or continuous and systematic, thereby conferring personal jurisdiction. In addition, the claims asserted against Gruma in this Complaint arise from

Grumas transacting business and committing the tort of patent infringement at its Mission Foods facility within the State of Nebraska. 6. This Court has personal jurisdiction over Defendant Azteca Milling. Azteca

Milling, under the control and direction of Gruma, has conducted and does conduct business within the State of Nebraska. Azteca Milling, directly and/or through intermediaries (including other Gruma entities, subsidiaries, distributors, agents, and others), manufactures, ships, distributes, offers for sale, sells, and/or advertises its products in the United States and the State of Nebraska. Azteca Milling is thus subject to the personal jurisdiction of this Court through its substantial or continuous and systematic contacts with Nebraska. This Court also has personal jurisdiction over Azteca Milling because the claims asserted against Azteca Milling in this Complaint arise from Azteca Millings transacting business with other Gruma entities, including without limitation Grumas Mission Foods facility in Nebraska. On information and belief, Defendants jointly commit the tort of patent infringement within the State of Nebraska when Grumas Mission Foods plant in Nebraska uses corn masa flour supplied by Azteca Milling to manufacture food products. 7. Venue is proper in this district under 28 U.S.C. 1391 and 1400(b).

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Joinder of the Defendants in this action is proper pursuant to 35 U.S.C. 299. As

alleged in more detail above and below, Gruma has committed and continues to commit the tort of patent infringement at its Mission Foods plants and at its Azteca Milling plants, and questions of fact common to Gruma and Azteca Milling will arise in this action, including but not limited to patent infringement, Defendants supply chain relationship and Grumas ownership and control of Azteca Milling. THE PATENT-IN-SUIT 9. United States Patent No. 6,428,828 (the 828 Patent), entitled Enzymatic

Process for Nixtamalization of Cereal Grains, was duly and legally issued by the United States Patent & Trademark Office to inventors David S. Jackson and Deepak Sahai on August 6, 2002, after a full and fair examination. The inventors assigned the 828 Patent to The Board of Regents of the University of Nebraska. A true and correct copy of the 828 Patent is attached to this Complaint as Exhibit A. 10. Plaintiff NUtech is the owner of the entire right, title, and interest in and to the

828 Patent by assignment, and has the exclusive right to sue for infringement and recover damages for all past, present and future infringement. 11. Dr. David S. Jackson and Dr. Deepak Sahai are the inventors of the 828 Patent.

At the time of invention, Dr. Jackson was an Associate Professor in the Department of Food Science and Technology at the University of Nebraska-Lincoln. Dr. Jackson currently serves as the Associate Dean and Associate Director of the Agricultural Research Division, Nebraska Agricultural Experiment Station at the University of Nebraska-Lincoln. Dr. Jackson has published extensively in the field of corn quality and processing and served as a leader in several professional organizations. At the time of the invention, Dr. Deepak was a Research Assistant

Professor in the Department of Food Science and Technology at the University of NebraskaLincoln. Dr. Jackson and Dr. Sahai developed and patented processes for, among other things, manufacturing instant corn masa flour and dough. 12. The 828 Patent discloses and claims a novel process (known as enzymatic

nixtamalization) for producing flour and dough from grains such as corn. In the traditional nixtamalization process, the corn kernel is cooked and steeped in an alkaline solution containing lime for a long period of time. This traditional nixtamalization process requires large amounts of water and energy, generates excess wastewater, and causes corn solids loss. The 828 Patents enzymatic nixtamalization process steeps and digests the corn kernel in an enzyme solution containing a protease enzyme. As a result, the enzymatic nixtamalization process reduces the alkaline wastewater and corn solids loss, minimizes waste treatment and disposal costs, and conserves water and energy. The dough prepared from the flour produced from the enzymatic nixtamalization process exhibits good sheeting and texture characteristics and can be processed to produce food products using conventional food processing equipment. For example, claim 17, one of the inventions disclosed in NUtechs 828 Patent, recites: A method of producing a food composition comprising: (a) steeping in a solution of alkaline protease enzyme under alkaline conditions at least one of the food materials selected from the group consisting of grain, and grain materials derived from grain; (b) removing the food materials from the mixture of step (a); (c) dehydrating the food materials of step (b); (d) grinding the dehydrated product of step (c).

COUNT I Infringement of U.S. Patent No. 6,428,828 13. 12 above. 14. On information and belief, Gruma has infringed and continues to infringe, either NUtech refers to and incorporates herein the allegations of paragraphs 1 through

literally or under the doctrine of equivalents, one or more claims of the 828 Patent by using in the United States certain processes for making instant corn masa flour and masa dough that use and embody the patented inventions claimed in NUtechs 828 Patent. Upon information and belief, Grumas products made by infringing processes include one or more corn flour products sold under the MISSION and MASECA brands. Gruma may sell additional products made by the infringing process under other product names, product family names, and/or brand names. Gruma is thus liable for direct infringement of the 828 Patent pursuant to 35 U.S.C. 271(a). 15. On information and belief, Azteca Milling has infringed and continues to infringe,

either literally or under the doctrine of equivalents, one or more claims of the 828 Patent by using in the United States certain processes for making instant corn masa flour that use and embody the patented inventions claimed in the 828 Patent. Upon information and belief, Azteca Millings products made by the infringing processes include one or more instant corn masa flour products sold under the brand name MASECA. Azteca Milling may sell additional products made by the infringing process under other product names, product family names, and/or brand names. Azteca Milling is thus liable for direct infringement of the 828 Patent, pursuant to 35 U.S.C. 271(a). 16. More specifically, and in support of the preceding allegations, Grumas use of

infringing methods is evident from several Gruma patent applications filed between October 2004 and June 2007. The following Gruma patent applications describe and claim certain 6

methods for processing whole corn kernel into instant corn masa flour that infringe NUtechs 828 Patent when used in the United States: (a) U.S. Appl. No. 10/973,381, filed on Oct. 27, 2004, subsequently published as

U.S. Patent Publication No. US 2006024407, and issued as U.S. Patent No. 7,459,174 (the 174 Patent), entitled Continuous Production of an Instant Corn Flour for Snack and Tortilla, Using a Neutral Enzymatic Precooking; (b) PCT Appl. No. PCT/US05/38832, filed on Oct. 27, 2005, entitled Continuous

Production of an Instant Corn Flour for Snack and Tortilla, Using a Neutral Enzymatic Precooking; and (c) National entries of the aforementioned PCT application in at least five countries

and the European Patent Office: Canadian Appl. No. 2583552, entered into Canada on Apr. 12, 2007; Australian Appl. No. 2005299607, entered into Australia on Apr. 13, 2007; Mexican Appl. No. MX/a/2007/004863, entered into Mexico on Apr. 23, 2007; Japanese Appl. No. 2007539136, entered into Japan on Apr. 27, 2007; EPO Appl. No. 2005824056, entered into EPO on May 21, 2007 and Chinese Appl. No. 200580044972.X, entered into China on Jun. 26, 2007. 17. In the above-listed patent applications, Gruma describes and claims processes for

manufacturing instant corn masa flour to be used for making certain snacks and tortillas. Specifically, Grumas patent applications describe and claim a solution to be used as a processing aid to digest whole corn kernels, which contains certain enzymatic ingredients, including an endoprotease enzyme. In addition to digesting the corn kernel in a solution

containing an endoprotease enzyme, Grumas patent applications describe and claim other steps involved in enzymatic nixtamalization for manufacturing instant corn masa flour, including

washing the digested corn kernel, drying the processed corn, and milling the corn into flour. These steps or their equivalent, together with the use of protease enzymes to digest corn kernels, are claimed in NUtechs 828 Patent. The processes for manufacturing instant corn masa flour disclosed, used and claimed in the aforementioned Gruma patent applications read on each and every element of one or more claims of NUtechs 828 Patent. 18. NUtechs 828 Patent issued on August 6, 2002 more than two years before

Gruma began filing the patent applications identified in paragraph 16. Thus, the processes for producing instant corn flour that are described and claimed in Grumas later-filed patent applications infringe one or more claims of NUtechs earlier-issued 828 Patent when such methods are used in the United States. 19. On information and belief, Defendants have used and continue to use in the

United States the infringing methods for producing instant corn masa flour that Gruma described and claimed in its patent applications. For example, U.S. Appl. No. 11/614,380 filed by Gruma on Dec. 21, 2006, entitled Continuous Production of Cereal Flour and Whole-Cereal Flour for Grain-Based Foods, Using a Low-Moisture Precooking states that: A novel enzymatic (with an alkaline-protease: 200- 250 ppm) process for nixtamalization of cereal grains ([NUtechs] U.S. Pat. No. 6,428,828) was applied to corn grain/meal for production of instant masa flours and reducing wastewater solids (3-12%). Other treated grains were wheat, rice, sorghum and millet. Three recent low-temperature and near neutral-pH precooking processes have been applied to corn grain for the elaboration of instant corn flours for tortilla, arepa and snack foods (U.S. Pat. Nos. 6,638,554, 7,014,875 and US 2006024407). Several endoenzymes (xylanase, amylase and protease) were used to effect a continuous and partial hydrolysis of insoluble heteroxylans and starchy and proteinaceous bran cell-walls in the corn grain. (Emphasis added; U.S. Patent Publication No. US 2006024407 ultimately issued as Grumas 174 Patent.). This excerpt from Grumas patent application acknowledges the novelty of the enzymatic nixtamalization method patented in NUtechs 828 Patent. Moreover, the above excerpt

indicates that Gruma has used the infringing processes disclosed and claimed in Grumas U.S. Patent Publication No. US 2006024407. 20. In addition, Grumas Azteca Milling marketing materials for certain MASECA

corn flour products, attached as Exhibit B, state that the products were made using our patented process for manufacturing corn flour. Those marketing materials further state that one of the advantages of MASECA corn flour is the improved texture of food products made using MASECA brand corn flour. The Gruma patent applications identified in paragraph 16 state that the processes described produce instant corn masa flour with improved texture and flavors. As discussed supra, the enzymatic nixtamalization process patented in the 828 Patent discloses and claims use of a solution containing a protease enzyme as a processing aid to produce instant corn masa flour that has superior product quality and good texture and sheeting characteristics. Thus, Grumas marketing materials provide further support for the allegation that Gruma has used and continues to use the infringing processes disclosed in Grumas patent applications. 21. On information and belief, Defendants infringement of the 828 Patent has been

and continues to be willful and deliberate, and in reckless disregard of NUtechs patent rights. Defendants have actual and constructive knowledge of NUtechs 828 Patent because, inter alia, Gruma cited the 828 Patent during the prosecution of several of its own patent applications. In particular, Gruma has cited and referred to NUtechs 828 Patent in numerous patent applications filed between August 2002 and June 2007, including: U.S. Appl. No. 10/231,291, filed on Aug. 30, 2002, subsequently issued as U.S. Patent No. 6,638,554 and entitled Continuous Production of an Instant Corn Flour for Arepa and Tortilla, Using an Enzymatic Precooking; U.S. Appl. No. 10/653,361, filed on Aug. 28, 2003, subsequently issued as U.S. Patent No. 7,014,875 and entitled Continuous Enzymatic Precooking for the Production of an Instant Corn Flour for Snack and Tortilla;

U.S. Appl. No. 10/973,381, filed on Oct. 27, 2004, subsequently issued as U.S. Patent No. 7,459,174 and entitled Continuous Production of an Instant Corn Flour for Snack and Tortilla, Using a Neutral Enzymatic Precooking; U.S. Appl. No. 11/122,106, filed on May 5, 2005, now abandoned and entitled Continuous Production of Pregelatinized Corn Flours for Dairy-based and Cereal-based Foods; PCT Appl. No. PCT/US05/38832, filed on Oct. 27, 2005, entitled Continuous Production of an Instant Corn Flour for Snack and Tortilla, Using a Neutral Enzymatic Precooking; U.S. Appl. No. 11/614,380, filed on Dec. 21, 2006, now abandoned and entitled Continuous Production of Cereal Flour and Whole-Cereal Flour for Grain-based Foods, Using a Low-moisture Precooking; and National entries of the aforementioned PCT application in at least five countries and the European Patent Office: Canadian Appl. No. 2583552, entered into Canada on Apr. 12, 2007; Australian Appl. No. 2005299607, entered into Australia on Apr. 13, 2007; Mexican Appl. No. MX/a/2007/004863, entered into Mexico on Apr. 23, 2007; Japanese Appl. No. 2007539136, entered into Japan on Apr. 27, 2007; EPO Appl. No. 2005824056, entered into EPO on May 21, 2007 and Chinese Appl. No. 200580044972.X, entered into China on Jun. 26, 2007 Gruma not only cited the 828 Patent during prosecution of the above-identified

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patent applications, Gruma also specifically discussed the 828 Patent in the text of these patent applications. Notably, the 828 Patent was also cited by a United States patent examiner as an important prior art reference in at least one office action during prosecution of the aboveidentified Gruma patent applications. 23. In addition, on information and belief, Felipe A. Rubio is Grumas Chief

Technology Officer for corn flour and tortilla production and has been working with Gruma for more than 29 years. Mr. Rubio is the first inventor listed in ten of the Gruma patent applications that cite and discuss NUtechs 828 Patent, and he is a co-inventor of two additional Gruma patent applications that cite and discuss NUtechs 828 Patent. For these reasons, Mr. Rubio and others at Gruma had knowledge of NUtechs 828 Patent, and on information and belief, Mr.

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Rubio and others at Gruma had knowledge that the processes described in Grumas patent applications identified in paragraph 16 infringe NUtechs 828 Patent when practiced in the United States. 24. NUtech has suffered and continues to suffer damages as a result of Defendants

infringement of the 828 Patent. Pursuant to 35 U.S.C. 284, NUtech is entitled to recover the damages from the Defendants for their infringing acts in an amount subject to proof at trial, but no less than a reasonable royalty. NUtech is further entitled to enhanced damages for

Defendants acts of willful patent infringement pursuant to 35 U.S.C. 284. 25. Defendants infringement of the 828 Patent will continue to damage NUtech,

causing irreparable harm for which there is no adequate remedy at law, unless Defendants are enjoined by this Court. 26. This case is exceptional within the meaning of 35 U.S.C. 285. NUtech is thus

entitled to an award of reasonable attorneys fees and costs of suit. JURY DEMAND 27. NUtech hereby requests a trial by jury in Lincoln, Nebraska, pursuant to Rule 38

of the Federal Rules of Civil Procedure. PRAYER FOR RELIEF 28. Plaintiff NUtech Ventures respectfully requests this Court to enter judgment in its

favor and against Defendants Gruma Corporation and Azteca Milling, L.P., granting the following relief: A. Judgment in NUtechs favor that Defendants have infringed and continue to infringe the 828 Patent; B. An award to NUtech of damages adequate to compensate it for Defendants acts of patent infringement, but in no event less than a 11

reasonable royalty, together with interest and costs as fixed by the court pursuant to 35 U.S.C. 284; C. An award to NUtech of enhanced damages, up to and including treble damages, pursuant to 35 U.S.C. 284, for Defendants acts of willful patent infringement; D. A grant of permanent injunction, pursuant to 35 U.S.C. 283, against Defendants, infringement; E. An award to NUtech of its costs of suit and reasonable attorneys fees, pursuant to 35 U.S.C. 285, due to the exceptional nature of this case; F. Any further relief that this Court deems just and proper. enjoining Defendants from further acts of patent

Date: July 5, 2012

Respectfully Submitted:

/s/ Paul J. Skiermont Paul J. Skiermont, Lead Attorney (Admitted to District of Nebraska) Texas Bar No. 24033073 Rajkumar Vinnakota (Admitted to District of Nebraska) Texas Bar No. 24042337 SKIERMONT PUCKETT LLP 2200 Ross Avenue, Suite 4301W Dallas, Texas 75201 (214) 978-6600 (telephone) (214) 978-6601 (facsimile) paul.skiermont@skiermontpuckett.com kumar.vinnakota@skiermontpuckett.com Counsel for Plaintiff NUtech Ventures

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