UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION SPINAL GENERATIONS, LLC, Plaintiff,

vs. ATLAS SPINE, INC., Defendant. COMPLAINT FOR PATENT INFRINGEMENT Plaintiff, Spinal Generations, LLC (Spinal Generations), complains of Defendant, Atlas Spine, Inc. (Atlas Spine), as follows: THE PARTIES 1. Spinal Generations is an Illinois limited liability company with its principal place Case No. 1:12-cv-00442 Judge: Magistrate Judge:

of business at 19110 Darvin Drive, Mokena, IL 60448. 2. Atlas Spine is a Florida corporation with its principal place of business at 1555

Jupiter Park Drive, Suite 4, Jupiter, Florida 33458. JURISDICTION AND VENUE 3. This is a civil action for patent infringement arising under the United States patent

statutes, 35 U.S.C. 1 et. seq. 4. This Court has jurisdiction over the subject matter of this action under 28 U.S.C.

1331 and 1338(a). 5. On information and belief, Atlas Spine has done and is doing business in the state

of Illinois and in this judicial district, has purposefully availed itself of the privilege of conducting business in this judicial district, thereby invoking its benefits and protections, and has

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established sufficient minimum contacts with the state of Illinois such that it should reasonably and fairly anticipate being brought into court in Illinois. The patent infringement claims alleged herein arise out of or result from one or more of the foregoing activities. 6. On information and belief, this Court has personal jurisdiction over Atlas Spine

by virtue of its acts of direct and indirect patent infringement, including its inducement of infringement and its contributory infringement, in this judicial district and by virtue of its transactions of business in Illinois. 7. Venue is proper in this judicial district under 28 U.S.C. 1391(b)-(c) and

1400(b) because Atlas Spine is subject to personal jurisdiction in this judicial district. FACTUAL BACKGROUND 8. On September 15, 2009, the United States Patent and Trademark Office (the

USPTO) duly and legally issued United States Patent No. 7,588,599 (the 599 Patent), entitled Interbody Cage System, to Patrick J. Sweeney, who assigned his entire right, title, and interest in the 599 Patent to Spinal Generations. A true and correct copy of the 599 Patent is attached hereto as Exhibit 1. 9. Spinal Generations informed Atlas Spine of its rights to the 599 Patent at least as

early as July 29, 2011, when counsel for Spinal Generations sent a cease-and-desist letter to Atlas Spine, stating that Atlas Spine was offering for sale a system under the STATURE name that infringed the 599 Patent. A true and correct copy of this letter is attached hereto as composite Exhibit 2. 10. On August 3, 2011, counsel for Atlas Spine responded to Spinal Generations

letter. The letter did not substantively address Atlas Spines infringement of the 599 Patent and

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merely stated that counsel for Atlas Spine was reviewing the allegations and would respond in short order. (Ex. 2.) 11. On August 29, 2011, counsel for Spinal Generations sent a second letter to Atlas

Spine. Counsel for Spinal Generations noted that it had not received a substantive response to its initial letter and demanded that Atlas Spine immediately stop selling the STATURE system and other similarly configured products. (Ex. 2.) 12. Atlas Spine did not respond to the August 29, 2011 letter. Instead, Atlas Spine

filed a declaratory judgment action against Spinal Generations in the United States District Court for the Southern District of Florida on September 8, 2011 (Civil Action No. 9:11-cv-81019MARRA) (the Florida suit). A true and correct copy of Atlas Spines Complaint (without exhibits) is attached hereto as Exhibit 3. 13. On November 14, 2011, Spinal Generations filed a Motion to Dismiss Atlas

Spines Complaint for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure, and in the alternative, a Motion to Transfer Venue to the Northern District of Illinois under 28 U.S.C. 1406(a). In response, Atlas Spine voluntarily dismissed its declaratory judgment suit against Spinal Generations on November 23, 2011. The court issued an Order dismissing Atlas Spines suit without prejudice on November 28, 2011. A true and correct copy of Atlas Spines Notice of Voluntary Dismissal and the Order dismissing the Florida suit is attached hereto as Exhibit 4. 14. On information and belief, on or about November 2-5, representatives of Atlas

Spine attended the North American Spine Societys 26th Annual Meeting (the NASS Meeting) in Chicago, Illinois. A true and correct highlighted excerpt of a copy of a catalog distributed at

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the NASS Meeting, evidencing that Atlas Spine operated a booth at the NASS Meeting, is attached hereto as Exhibit 5. 15. On information and belief, at the NASS Meeting, representatives of Atlas Spine

distributed, inter alia, product information on the STATURE system (the STATURE Pamphlet), and displayed the STATURE system. A true and correct copy of the STATURE Pamphlet is attached hereto as Exhibit 6. 16. Atlas Spine advertises and markets the STATURE system on its website,

www.atlasspine.com. This website and the contained information regarding the STATURE system is freely accessible and available to anyone with an Internet connection. COUNT I: DIRECT INFRINGEMENT OF THE 599 PATENT 17. Spinal Generations realleges and incorporates by reference paragraphs 1-16 of

this Complaint as if fully set forth herein. 18. Atlas Spine has directly infringed and continues to directly infringe the 599

Patent by, among other activities, making, using, offering to sell, and/or selling its STATURE system in the United States, in a manner which is covered by one or more claims of the 599 Patent in violation of 35 U.S.C. 271(a). 19. Atlas Spines direct infringement has occurred with knowledge of the 599 Patent

and has been willful in violation of 35 U.S.C. 284 2. 20. Atlas Spines infringement has injured Spinal Generations and Spinal Generations

is entitled to recover damages adequate to compensate it for such infringement, but in no event less than a reasonable royalty.

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COUNT II: INDIRECT INFRINGEMENT OF THE 599 PATENT 21. Spinal Generations realleges and incorporates by reference paragraphs 1-20 of

this Complaint as if fully set forth herein. 22. Atlas Spine has contributorily infringed and/or induced others to infringe and

continues to indirectly infringe one or more claims of the 599 Patent by making and selling its STATURE system for use and/or sale by others in the United States, such STATURE system being covered by one or more claims of the 599 Patent in violation of 35 U.S.C. 271(b)-(c). 23. Atlas Spines contributory infringement and inducement of infringement has

occurred with knowledge of the 599 Patent and has been willful in violation of 35 U.S.C. 284 2. 24. Atlas Spines infringement has injured Spinal Generations and Spinal Generations

is entitled to recover damages adequate to compensate it for such infringement, but in no event less than a reasonable royalty. DEMAND FOR JURY TRIAL 25. Spinal Generations hereby demands a jury trial on all issues so triable. PRAYER FOR RELIEF Wherefore, Spinal Generations respectfully requests that this Court enter judgment in its favor and grant the following relief: A. A judgment that Atlas Spine has directly infringed the 599 Patent, induced

infringement of the 599 Patent, and contributorily infringed the 599 Patent; B. A permanent injunction enjoining Atlas Spine and its affiliates, subsidiaries,

officers, directors, employees, agents, representatives, licensees, successors, assigns, parent and

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subsidiary corporations, and all those acting for any of them or on their behalf, or acting in concert with them, from further infringement of the 599 Patent; C. D. A judgment that Atlas Spines infringement has been willful; A judgment and order requiring Atlas Spine to pay Spinal Generations damages

under 35 U.S.C. 284, including supplemental damages for any continuing post-verdict infringement up until entry of the final judgment, with an accounting, as needed, and treble damages for willful infringement as provided by 35 U.S.C. 284; E. An award of attorneys fees incurred in prosecuting this action, on the basis that

this is an exceptional case; F. A judgment and order requiring Atlas Spine to pay Spinal Generations the costs

of this action, including all disbursements; G. A judgment and order requiring Atlas Spine to pay Spinal Generations pre-

judgment and post-judgment interest on the damages awarded; and H. Further relief as the Court may deem just and proper.

Dated: January 20, 2012

Respectfully Submitted,

OF COUNSEL: Jeffrey N. Costakos Kevin J. Malaney FOLEY & LARDNER LLP 777 East Wisconsin Avenue Milwaukee, WI 53202-5306 (414) 271-2400 (t) (414) 297-4900 (f)

s/ Andrew M. Gross Andrew M. Gross (ARDC # 6299917) FOLEY & LARDNER LLP 321 North Clark Street, Suite 2800 Chicago, Illinois 60654-5313 (312) 832-4500 (t) (312) 832-4700 (f)

Attorneys for Plaintiff Spinal Generations, LLC

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