IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF NORTH CAROLINA
`CHARLOTTE DIVISION
`CIVIL ACTION NO.: 3:14-CV-00274
`
`
`LIFESCAN, INC. and LIFESCAN SCOTLAND,
`LTD.,
`
`PLAINTIFFS,
`
`v.
`
`UNISTRIP TECHNOLOGIES, LLC,
`DEFENDANT.
`
`COMPLAINT
`(Jury Trial Demanded)
`
`
`1.
`
`This lawsuit is brought by plaintiffs LifeScan, Inc. and LifeScan Scotland, Ltd.
`
`
`
`
`
`(collectively, “LifeScan”) against defendant UniStrip Technologies, LLC, seeking damages and
`
`injunctive relief for the defendant’s infringement of U.S. Patents Nos. 6,241,862 and 7,250,105.
`
`THE PARTIES
`
`2.
`
`Plaintiff LifeScan, Inc. is a corporation organized under the laws of the State of
`
`California, with its principal place of business in Milpitas, California.
`
`3.
`
`Plaintiff LifeScan Scotland, Ltd. is a private limited company organized under the
`
`laws of the United Kingdom, with its principal place of business in Inverness, Scotland.
`
`4.
`
`Upon information and belief, defendant UniStrip Technologies, LLC (“UniStrip
`
`Technologies”) is a corporation organized under the laws of the State of North Carolina, with its
`
`principal place of business at 301 McCullough Drive, Charlotte, North Carolina.
`
`JURISDICTION AND VENUE
`
`5.
`
`This Court has jurisdiction over the subject matter of this action pursuant to
`
`28 U.S.C. §§ 1331 and 1338(a). This case arises under the patent laws of the United States,
`
`35 U.S.C. § 101 et seq.
`
`– 1 –
`Case 3:14-cv-00274-RJC-DSC Document 1 Filed 05/28/14 Page 1 of 7
`
`
`FOR THE WESTERN DISTRICT OF NORTH CAROLINA
`CHARLOTTE DIVISION
`CIVIL ACTION NO.: 3:14-CV-00274
`
`
`LIFESCAN, INC. and LIFESCAN SCOTLAND,
`LTD.,
`
`PLAINTIFFS,
`
`v.
`
`UNISTRIP TECHNOLOGIES, LLC,
`DEFENDANT.
`
`COMPLAINT
`(Jury Trial Demanded)
`
`
`1.
`
`This lawsuit is brought by plaintiffs LifeScan, Inc. and LifeScan Scotland, Ltd.
`
`
`
`
`
`(collectively, “LifeScan”) against defendant UniStrip Technologies, LLC, seeking damages and
`
`injunctive relief for the defendant’s infringement of U.S. Patents Nos. 6,241,862 and 7,250,105.
`
`THE PARTIES
`
`2.
`
`Plaintiff LifeScan, Inc. is a corporation organized under the laws of the State of
`
`California, with its principal place of business in Milpitas, California.
`
`3.
`
`Plaintiff LifeScan Scotland, Ltd. is a private limited company organized under the
`
`laws of the United Kingdom, with its principal place of business in Inverness, Scotland.
`
`4.
`
`Upon information and belief, defendant UniStrip Technologies, LLC (“UniStrip
`
`Technologies”) is a corporation organized under the laws of the State of North Carolina, with its
`
`principal place of business at 301 McCullough Drive, Charlotte, North Carolina.
`
`JURISDICTION AND VENUE
`
`5.
`
`This Court has jurisdiction over the subject matter of this action pursuant to
`
`28 U.S.C. §§ 1331 and 1338(a). This case arises under the patent laws of the United States,
`
`35 U.S.C. § 101 et seq.
`
`– 1 –
`Case 3:14-cv-00274-RJC-DSC Document 1 Filed 05/28/14 Page 1 of 7
`
`
`
`6.
`
`This Court has personal jurisdiction over defendant UniStrip Technologies
`
`because UniStrip Technologies does business in the State of North Carolina, has its principal
`
`place of business in this State and has had continuous, systematic, and substantial contacts with
`
`this State.
`
`7.
`
`Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391 and 1400(b).
`
`BACKGROUND
`
`8.
`
`The patents at issue in this case involve disposable test strips that persons with
`
`diabetes use to monitor their blood glucose levels. This monitoring is done to detect
`
`hypoglycemia (low blood glucose) or hyperglycemia (high blood glucose), which can lead to
`
`serious complications if untreated. Blood glucose testing typically is done by the individual
`
`several times each day. It is one of the most important things that diabetics can do to ensure their
`
`health and to prevent long-term complications.
`
`9.
`
`On June 5, 2001, the U.S. Patent and Trademark Office issued U.S. Patent
`
`No. 6,241,862 (“the ’862 Patent”), entitled “Disposable Test Strips with Integrated
`
`Reagent/Blood Separation Layer.” The ’862 patent describes and claims a disposable test strip
`
`for use with a test meter that receives a disposable test strip and a sample of blood and performs
`
`an electrochemical analysis of the amount of a blood analyte in the sample, as well as a method
`
`for forming such a test strip. A copy of the ’862 patent is attached to this Complaint as
`
`Exhibit A.
`
`10.
`
`On July 31, 2007, the U.S. Patent and Trademark Office issued U.S. Patent
`
`No. 7,250,105 (“the ’105 patent”), entitled “Measurement of Substances in Liquids.” The
`
`’105 patent describe and claims a method of measuring the concentration of a substance in a
`
`liquid. A copy of the ’105 patent is attached to this Complaint as Exhibit B.
`
`– 2 –
`Case 3:14-cv-00274-RJC-DSC Document 1 Filed 05/28/14 Page 2 of 7
`
`
`
`11.
`
`12.
`
`LifeScan Scotland, Ltd. is the owner of the ’862 and ’105 patents.
`
`LifeScan, Inc. holds an exclusive license under the ’862 and ’105 patents,
`
`including the right to sue and recover damages for infringement.
`
`13.
`
`LifeScan is the leader in the worldwide market for blood glucose monitoring
`
`systems. LifeScan distributes OneTouch® Ultra® glucose monitoring systems, which include
`
`OneTouch® Ultra® test strips and OneTouch® Ultra® meters.
`
`14.
`
`LifeScan’s OneTouch Ultra test strips, and use of those test strips with LifeScan’s
`
`OneTouch Ultra meters, practice one or more claims of the patents-in-suit.
`
`15.
`
`LifeScan marks the packaging for its OneTouch Ultra test strips with the numbers
`
`of the patents-in-suit in the manner prescribed by 35 U.S.C. § 287(a).
`
`16.
`
`UniStrip Technologies sells and offers to sell in the United States, and upon
`
`information and belief imports into the United States, disposable blood glucose test strips under
`
`the trade name UniStrip1™.
`
`17.
`
`UniStrip Technologies has promoted UniStrip1 test strips for use with LifeScan’s
`
`OneTouch Ultra blood glucose meters and has instructed users to use UniStrip1 test strips with
`
`LifeScan’s OneTouch Ultra meters.
`
`18.
`
`UniStrip Technologies described its UniStrip1 test strip in an April 9, 2014 press
`
`release as an “alternative product to the OneTouch® Ultra® test strip brand,” “for use in
`
`LifeScan’s® OneTouch® Ultra®, Ultra®2, UltraMini® and UltraSmart® blood glucose
`
`meters.”
`
`19.
`
`UniStrip Technologies has promoted the UniStrip1 test strip on a website at
`
`http://www.unistrip-tech.com/ as a test strip that works with LifeScan’s OneTouch Ultra glucose
`
`– 3 –
`Case 3:14-cv-00274-RJC-DSC Document 1 Filed 05/28/14 Page 3 of 7
`
`
`
`meters, and has described the UniStrip1 test strip as the “leading GENERIC alternative” to the
`
`OneTouch Ultra test strips.
`
`20.
`
`The packaging of the defendant’s UniStrip1 test strip states that the UniStrip1 test
`
`strip is designed to be used with LifeScan’s OneTouch Ultra meters:
`
`
`
`
`
`
`
`21.
`
`The Instructions for Use in the UniStrip1 package state that UniStrip1 test strips
`
`are intended to be used with LifeScan’s OneTouch meters:
`
`The UniStrip1™ Test Strips are only for use with the OneTouch® Ultra®,
`OneTouch® Ultra®2, OneTouch® UltraMini® and OneTouch®
`UltraSmart® meters purchased before October 2012, set at calibration
`code 49, for measuring glucose (sugar) in whole capillary blood. ….
`
`22.
`
`UniStrip Technologies has been aware of the patents-in-suit at all relevant times,
`
`and has engaged in its infringing acts with knowledge of those patents.
`
`COUNT I
`Infringement of the ’862 Patent
`
`23.
`
`Plaintiffs repeat and reallege paragraphs 1–22 as if fully set forth herein.
`
`– 4 –
`Case 3:14-cv-00274-RJC-DSC Document 1 Filed 05/28/14 Page 4 of 7
`
`
`
`24.
`
`UniStrip Technologies has infringed and continues to infringe one or more claims
`
`of the ’862 patent, literally or under the doctrine of equivalents, by making or importing, selling,
`
`using and offering to sell the UniStrip1 test strip in the United States.
`
`25.
`
`In engaging in the acts set forth above, UniStrip Technologies has known of the
`
`patents-in-suit and known that the UniStrip1 test strips is especially made and/or adapted for use
`
`in infringing the ’862 patent.
`
`26.
`
`UniStrip Technologies’ conduct has harmed LifeScan by preventing it from
`
`enjoying the exclusive rights granted by the ’862 patent. Unless enjoined, UniStrip’s conduct
`
`will cause irreparable loss, injury, and damage to LifeScan.
`
`27.
`
`On
`
`information and belief, UniStrip Technologies’
`
`infringement of
`
`the
`
`’862 patent is willful.
`
`COUNT II
`Infringement of the ’105 Patent
`
`Plaintiffs repeat and reallege paragraphs 1–27 as if fully set forth herein.
`
`The UniStrip1 test strip is especially designed for practicing the ’105 patent in
`
`
`
`28.
`
`29.
`
`conjunction with LifeScan’s OneTouch Ultra meters. It is not a staple article of commerce and
`
`has no substantial non-infringing uses.
`
`30.
`
`UniStrip Technologies sells and offers to sell the UniStrip1, knowing the same to
`
`be especially made or especially adapted for use in infringing the ’105 patent.
`
`31.
`
`UniStrip Technologies has indirectly infringed and continues to indirectly infringe
`
`one or more claims of the ’105 patent, literally or under the doctrine of equivalents, by inducing
`
`infringement of one or more claims of the ’105 patent by users of the UniStrip1 test strip and by
`
`contributing to infringement of one of more claims of the ’105 patent by such persons.
`
`– 5 –
`Case 3:14-cv-00274-RJC-DSC Document 1 Filed 05/28/14 Page 5 of 7
`
`
`
`32.
`
`In engaging in the acts set forth above, UniStrip Technologies has known of the
`
`’105 patent and known that UniStrip1 test strips are especially made and/or adapted for use in
`
`infringing the ’105 patent.
`
`33.
`
`UniStrip Technologies’ conduct has harmed LifeScan by preventing it from
`
`enjoying the exclusive rights granted by the ’105 patent.
`
` Unless enjoined, UniStrip
`
`Technologies’ conduct will cause irreparable loss, injury, and damage to plaintiffs.
`
`34.
`
`On
`
`information and belief, UniStrip Technologies’
`
`infringement of
`
`the
`
`’105 patent is willful.
`
`PRAYER FOR RELIEF
`
`This Court should grant LifeScan the following relief against UniStrip Technologies:
`
`a.)
`
`judgment
`
`declaring
`
`that UniStrip Technologies’ manufacture,
`
`importation, offer to sell, sale and use of the UniStrip1 test strip infringes,
`
`either directly or indirectly, the claims of the ’862 and ’105 patents;
`
`b.)
`
`an injunction barring UniStrip Technologies and its officers, agents,
`
`employees, and all others in concert or participation with them from
`
`importing, making, using, selling or offering to sell UniStrip1 test strips
`
`and colorable variations thereof, and from otherwise infringing the
`
`patents-in-suit;
`
`c.)
`
`damages for UniStrip Technologies’ infringement, with interest and
`
`d.)
`
`e.)
`
`trebled, pursuant to 35 U.S.C. § 284;
`
`an order decreeing that this case is exceptional;
`
`an order awarding LifeScan its reasonable attorneys’ fees and expert fees
`
`for bringing and prosecuting this action;
`
`– 6 –
`Case 3:14-cv-00274-RJC-DSC Document 1 Filed 05/28/14 Page 6 of 7
`
`
`
`f.)
`
`g.)
`
`an order awarding LifeScan the costs and expenses of this action;
`
`such other relief that the Court deems just and proper; and
`
`all issues of fact be determined by a jury.
`
`h.)
`
`This the 28th day of May, 2014.
`
`/s/DAVID N. ALLEN
`NC State Bar No. 9095
`/S/J. DOUGLAS GRIMES
`NC State Bar No. 32699
`Hedrick Gardner Kincheloe &
`Garofalo, LLP
`PO Box 30397
`Charlotte, NC 28230
`PH:
`(704) 366-1101
`FAX: (704) 366-6181
`dallen@hedrickgardner.com
`dgrimes@hedrickgardner.com
`
`Attorneys for Plaintiffs Life
`Scan, Inc. and LifeScan
`Scotland, Ltd.
`
`
`
`
`
`
`
`
`
`
`
`
`
`Of Counsel:
`
`Gregory L. Diskant
`Eugene M. Gelernter
`Anthony C. DeCinque
`PATTERSON BELKNAP WEBB & TYLER LLP
`1133 Avenue of the Americas
`New York, NY 10036
`(212) 336-2000
`
`
`
`– 7 –
`Case 3:14-cv-00274-RJC-DSC Document 1 Filed 05/28/14 Page 7 of 7
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