Case 6:21-cv-00644 Document 1 Filed 06/21/21 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`
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`Civil Action No. __________________
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`Jury Trial Demanded
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`Plaintiff,
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`PM HOLDINGS, LLC,
`an Arizona Limited Liability Company,
`
`
`
`v.
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`HEART OF TEXAS SURGERY CENTER, PLLC,
`a Texas Professional Limited Liability Company;
`and
`HEART OF TEXAS CATH LAB, PLLC
`a Texas Professional Limited Liability Company,
`
`
`
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`Defendants.
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`
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`COMPLAINT FOR PATENT INFRINGEMENT AND JURY DEMAND
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`Plaintiff PM Holdings, LLC, by its undersigned attorneys, for its Complaint against
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`Defendants Heart of Texas Surgery Center, PLLC and Heart of Texas Cath Lab, PLLC, states and
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`alleges as follows:
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`I.
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`THE PARTIES
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`1.
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`Plaintiff PM Holdings, LLC ("PMH" or "Plaintiff") is an Arizona limited liability
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`company having a principal place of business in Paradise Valley, Arizona 85253.
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`2.
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`Defendant Heart of Texas Surgery Center, PLLC ("Heart of Texas Surgery Center")
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`is a Texas professional limited liability company having a principal place of business at 7003
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`Woodway Drive, Suite 307, Woodway, Texas 76712. Defendant Heart of Texas Cath Lab, PLLC
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`("Heart of Texas Cath Lab") is a Texas professional limited liability company, also having a
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`principal place of business at 7003 Woodway Drive, Suite 307, Woodway, Texas 76712. Heart of
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`Texas Surgery Center and Heart of Texas Cath Lab are collectively referred to herein as "Heart of
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`Texas" or "Defendants."
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`II.
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`JURISDICTION AND VENUE
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`3.
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`This action arises under the Patent Act, 35 U.S.C. §§ 101, et seq. The infringing
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`acts of Defendants, as complained of herein, were committed in this District and have caused and
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`continue to cause PMH injury in this district. The Court has original jurisdiction over the parties
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`and the claims asserted in this action pursuant to 28 U.S.C. §§ 1331 and 1338.
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`4.
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`This Court has personal jurisdiction over Defendants because they have committed,
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`and continue to commit, acts of infringement in this District, have conducted business in this
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`District, and/or have engaged in continuous and systematic activities in this District.
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`5.
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`Venue is proper in this district pursuant to 28 U.S.C. § 1400 because Defendants
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`are headquartered here, and/or have a regular and established place of business in this District and
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`have committed acts of infringement in this District.
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`III. GENERAL ALLEGATIONS
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`Plaintiff PM Holdings, LLC
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`The founder and managing partner of Plaintiff PM Holdings, LLC is Dr. L. Philipp
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`A.
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`6.
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`Wall, MD, who since 1997 has been a board-certified vascular surgeon in Arizona. For the past
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`24 years, Dr. Wall has been a practicing physician and specifically within the past 16 years,
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`Dr. Wall has been performing vascular-related surgeries in Arizona.
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`7.
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`Traditionally, cardio-vascular related procedures have been performed in in-patient
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`facilities, i.e. hospitals, which offer combined surgical and fixed imaging services in a single,
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`hybrid operating room. This hybrid model was only available in hospitals, which are generally
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`designed with a variety of special features to meet the strict safety requirements for radiology.
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`Indeed, and conventionally, large hospitals were thought to be the only types of facilities that could
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`accommodate the needed infrastructure for the large radiological equipment, high electrical
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`requirements, and radiation shielding.
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`8.
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`Around this time, smaller, standalone, outpatient surgical facilities, known as
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`ambulatory surgical centers ("ASCs"), were becoming more popular and widespread. ASCs can
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`be constructed in office buildings that have much less strict code requirements, and therefore, can
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`be built with significant cost savings compared to the cost to build a hospital. For example, an
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`IBC Class B structure, which may house an ASC, will have significantly less strict construction
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`requirements than an IBC Class I-2 hospital structure. Similarly, the air exchange and other
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`requirements may be much less strict for ASCs than for hospitals. However, due to the ASC's less
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`stringent building requirements, the common belief was that the hybrid operating room was still
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`relegated to larger hospitals that utilized stricter building requirements.
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`9.
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`Dr. Wall, recognizing the utility of integrating the hybrid operating room into the
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`ASC model, set out to invent and design a system that would enable them to be incorporated into
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`ASCs. Dr. Wall's inventive design enables stand-alone ASCs to operate upon and to image a
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`patient in the same room, thus negating the need to move a patient for one purpose or the other.
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`Patents covering Dr. Walls inventive concepts were applied for and granted and applications
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`covering additional concepts are currently pending.
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`B.
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`The Patents-In-Suit
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`10.
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`U.S. Patent 9,322,188 ("the '188 Patent") titled "Hybrid Operating Room for
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`Combined Surgical and Fixed Imaging Services in an Ambulatory Surgical Center" was filed on
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`December 4, 2014, and is a Continuation of Application No. 14/219,880, filed on March 19, 2014.
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`The United States Patent and Trademark Office ("USPTO") duly and legally issued the '188 Patent
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`on April 26, 2016. A copy of the '188 Patent is attached hereto as Exhibit A and incorporated
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`herein by reference.
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`11.
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`Independent Claim 16 of the '188 Patent is representative of the subject matter of
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`the '188 Patent and is set forth in its entirety below.
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`A stationary ambulatory surgical center, comprising:
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` a
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` hybrid operating room;
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`an imaging device disposed in the hybrid operating room and configured to
`use radiation, wherein the hybrid operating room is configured to shield the
`radiation from use of the imaging device;
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`an operating table disposed in the hybrid operating room;
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` a
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` power room near the operating room, wherein the power room comprises
`a power supply for the imaging device;
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`an air change system, wherein the air change system is configured to
`provide at least six air changes per hour to the hybrid operating room;
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` a
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` conduit from the power room to the imaging device configured to deliver
`power to the imaging device; and
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` a
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` door connecting the hybrid operating room to at least one hallway,
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`wherein a building for the ambulatory surgical center is initially constructed
`to conform to International Building Code (IBC) Class B standards.
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`12.
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`U.S. Patent 9,334,664 ("the '664 Patent") titled "Hybrid Operating Room for
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`Combined Surgical and Fixed Imaging Services in an Ambulatory Surgical Center" was filed on
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`December 4, 2014, and is a Continuation-In-Part to Application No. 14/219,880, filed on
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`March 19, 2014. The USPTO duly and legally issued the '664 Patent on May 10, 2016. A copy of
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`the '664 Patent is attached hereto as Exhibit B and incorporated herein by reference.
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`13.
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`Independent Claim 22 of the '664 Patent is representative of the subject matter of
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`the '664 Patent and is set forth in its entirety below.
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`A building, comprising:
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` a
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` hybrid operating room, wherein the hybrid operating room comprises
`radiation shielding;
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`an imaging device disposed in the hybrid operating room;
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`an operating table disposed in the hybrid operating room;
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` a
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` power room near the operating room, wherein the power room comprises
`a power supply for the imaging device;
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`an air change system, wherein the air change system is configured to
`provide at least six room air changes per hour to the hybrid operating room;
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` a
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` door connecting the hybrid operating room to at least one hallway;
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` a
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` conduit from the power room to the imaging device configured to deliver
`power to the imaging device,
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`wherein the building includes 20,000 square feet or less of floor space,
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`wherein the building is initially constructed to conform to International
`Building Code (IBC) Class B standards.
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`14.
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`Patents."
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`The '188 Patent and the '664 Patent are together referred to as "the Asserted
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`15.
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`Dr. Wall assigned the Asserted Patents to PMH, which owns all rights, title, and
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`interest in and to the Asserted Patents, including the right to collect all due and owing past damages
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`for infringement thereof.
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`C.
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`The Heart Of Texas Defendants
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`16.
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`Upon information and belief, Defendants operate an ambulatory surgical center,
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`located at 7003 Woodway Drive, Suite 307, Woodway, Texas 76712. According to Defendants'
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`website, they offer cardiovascular procedures at the site, including: cardioversion; carotid
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`angiography;
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`coronary
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`angiography,
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`atherectomy,
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`angioplasty,
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`stenting;
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`device
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`implantation/replacement (pacemaker, defibrillator); and peripheral angiography, atherectomy,
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`angioplasty, stenting. See https://wacohsc.com/services/ (last visited June 18, 2021). The website
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`further describes an angiography procedure as follows:
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`A Coronary Angiogram is a procedure that uses X-ray imaging to look at your
`heart's blood vessels. For your Angiogram, you will be taken to our onsite Cardiac
`Catheterization Lab where a small catheter will be inserted into your heart
`through an artery or a vein. Dye is injected to allow the doctor to see the blood flow
`in your heart and coronary arteries, and X-rays pictures will be taken. The results
`of your Angiogram will assist your cardiologist in diagnosis and prevention of a
`number of concerns.
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`Id. (emphasis added).
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`17.
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`Upon information and belief, Defendants remodeled their facility in or
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`around 2016, with this remodel adding the "Cardiac Catheterization Lab" referenced above.
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`Defendants' Cardiac Catheterization Lab is a hybrid operating room as claimed by the Asserted
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`Patents, and includes an X-ray imaging device, an operating table, a nearby power room, conduit
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`running from the power room, an air change system with significant volume capacity, a door to a
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`hallway, and was built in conformity with IBC Class B standards. Publicly available architectural
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`and design drawings, labeled "Heart of Texas Surgery Center, 7003 SW Woodway Dr., Suite 307,
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`Waco, Texas 76712, Project No. 15215, Project Mgr: LP, Assisted By: GG, JH, CFR, Date:
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`4/5/2016", disclose relevant details of the facility and confirm that it meets and/or its use meets all
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`limitations of claims set forth in the Asserted Patents.
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`D.
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`18.
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`Patent Infringement By Heart Of Texas
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`Operation of the hybrid operating room within the Heart of Texas facility directly
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`infringes one or more of the '188 Patent claims without authority of PMH. More specifically and
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`without limitation, Defendants have been and are directly infringing, either literally or under the
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`doctrine of equivalents, at least Claim 16 of the '188 Patent by constructing, using, and/or
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`conducting surgical procedures or offering surgical procedures to be conducted in their hybrid
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`operating room. A claim chart further detailing infringement of the Claim 16 of the '188 Patent is
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`attached as Exhibit C and incorporated herein by reference in its entirety.
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`19.
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`Operation of the hybrid operating room within the Heart of Texas facility directly
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`infringes one or more of the '664 Patent claims without authority of PMH. More specifically and
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`without limitation, Defendants have been and are directly infringing, either literally or under the
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`doctrine of equivalents, at least Claim 22 of the '664 Patent by constructing, using, and/or
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`conducting surgical procedures or offering surgical procedures to be conducted in their hybrid
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`operating room. A claim chart further detailing infringement of the Claim 22 of these claims of
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`the '664 Patent is attached as Exhibit D and incorporated herein by reference in its entirety.
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`20.
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`Defendants' construction and/or use of the hybrid operating rooms in connection
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`with procedures for which they were designed constitutes infringement of at least one claim of
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`each of the Asserted Patents, as discussed in more detail below (collectively, the "Accused
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`Products").
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`21.
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`At least as early as May 5, 2021, Defendants have had actual knowledge of the
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`Asserted Patents and of their infringement thereof through written notice. A copy of the notice is
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`attached as Exhibit E and is incorporated herein by reference in its entirety. The notice requested
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`Defendants respond to PMH's counsel within two weeks. The notice was sent by Federal Express
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`to the 7003 Woodway Drive, Suite 307, Woodway, Texas 76712 address, as well as to Defendants'
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`registered agent for service of process. To date, Defendants have not responded to the notice and
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`upon information and belief, have continued to willfully and wantonly conducted procedures
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`utilizing the infringing Accused Products.
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`22.
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`Defendants know that the making and use of the Accused Products infringe the
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`Asserted Patents. Nevertheless, Defendants did not regularize their activities when give a chance
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`to do so and their continuing conduct is thus knowing, willful, and exceptional under 35 U.S.C.
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`§§ 284-285.
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`IV.
`FIRST CLAIM FOR RELIEF
`(Patent Infringement Under 35 U.S.C. § 271(a) – U.S. Patent No. 9,322,188)
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`23.
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`The allegations set forth in paragraphs 1 through 22 are hereby realleged and
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`incorporated herein by reference.
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`24. With knowledge of the '188 Patent, Defendants directly and literally, or in the
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`alternative under the doctrine of equivalents, infringe one or more claims of the '188 Patent, in
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`violation of 35 U.S.C. § 271(a), in this district, by owning and operating the Accused Products.
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`25.
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`Defendants have had actual knowledge of the '188 Patent at least as early as the
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`notice provided to it by PMH on May 5, 2021. Defendants knew that the Accused Products
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`infringed the '188 Patent. Defendants' infringement of the '188 Patent was willful and in wanton
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`disregard for PMH's patent rights.
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`26.
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`Defendants' acts of infringement have occurred within this district. Based upon the
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`facts and circumstances alleged herein, Defendants' infringement of the '188 Patent was and is
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`being committed willfully.
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`27.
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`Defendants are liable to PMH in an amount that adequately compensates it for
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`Defendants' infringement in an amount that is not less than a reasonable royalty, together with
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`interest and costs as fixed by this Court under 35 U.S.C. § 284.
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`28.
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`PMH has been damaged and will suffer additional damages and irreparable harm
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`unless Defendants are enjoined from further infringement under 35 U.S.C. § 283.
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`Case 6:21-cv-00644 Document 1 Filed 06/21/21 Page 9 of 11
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`V.
`SECOND CLAIM FOR RELIEF
`(Patent Infringement Under 35 U.S.C. § 271(a) – U.S. Patent No. 9,334,664)
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`29.
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`The allegations set forth in paragraphs 1 through 28 are hereby realleged and
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`incorporated herein by reference.
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`30. With knowledge of the '664 Patent, Defendants, directly and literally, or in the
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`alternative under the doctrine of equivalents, infringes one or more claims of the '664 Patent, in
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`violation of 35 U.S.C. § 271(a), in this district by owning and operating the Accused Products.
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`31.
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`Defendants have had actual knowledge of the '664 Patent at least as early as the
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`notice provided to it by PMH on May 5, 2021. Defendants knew that the Accused Products
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`infringed the '664 Patent. Defendants' infringement of the '664 Patent was willful and in wanton
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`disregard for PMH's patent rights.
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`32.
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`Defendants are liable to PMH in an amount that adequately compensates it for
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`Defendants' infringement in an amount that is not less than a reasonable royalty, together with
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`interest and costs as fixed by this Court under 35 U.S.C. § 284.
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`33.
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`PMH has been damaged and will suffer additional damages and irreparable harm
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`unless Defendants are enjoined from further infringement under 35 U.S.C. § 283.
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`VI.
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`PRAYER FOR RELIEF
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`WHEREFORE, PMH prays for judgment in its favor and against Defendants as follows:
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`A.
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`B.
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`That Defendants have infringed one or more claims of the Asserted Patents;
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`That Defendants, their officers, directors, agents, servants, employees, privies,
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`representatives, attorneys, parent and subsidiary corporations or other related entities, successors,
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`assigns, licensees, retail distributors, and all persons in active concert or participation with any of
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`them, be enjoined from infringing the Asserted Patents or, in the alternative, be compelled to enter
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`Case 6:21-cv-00644 Document 1 Filed 06/21/21 Page 10 of 11
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`into a patent license with PMH authorizing the continued operation of the Accused Products
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`relative to the Asserted Patents;
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`C.
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`That PMH be awarded damages in an amount to be determined at trial for
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`Defendants' infringing activities, which are no less than a reasonable royalty;
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`D.
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`That PMH be awarded treble damages by reason of any willful, wanton, and
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`deliberate infringement found under 35 U.S.C. § 284;
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`E.
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`F.
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`G.
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`That PMH be awarded its pre-judgment and post-judgment interest;
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`That PMH be awarded its costs and expenses of suit, including expert witness fees;
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`That PMH be awarded its attorneys' fees should this be found to be an exceptional
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`case under 35 U.S.C. § 285;
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`H.
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`That Defendants be required to account for all gains, profits, advantages, and unjust
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`enrichment derived from its violations of law; and
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`I.
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`That PMH be awarded other and further relief as the Court deems appropriate and
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`just.
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`VII. JURY DEMAND
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`Pursuant to Fed. R. Civ. P. 38, PMH demands a trial by jury on all issues so triable.
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`Case 6:21-cv-00644 Document 1 Filed 06/21/21 Page 11 of 11
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`Dated: June 21, 2021
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`Respectfully submitted,
`
`By: /s/ Michael C. Smith
`Michael C. Smith
`Michael.Smith@solidcounsel.com
`Scheef & Stone, LLP
`113 East Austin Street
`Marshall, Texas 75670
`Telephone: 903-938-8900
`
`Robert R. Brunelli (to be admitted pro hac vice)
`rbrunelli@sheridanross.com
`Patricia Y. Ho (to be admitted pro hac vice)
`pho@sheridanross.com
`Matthew C. Miller (to be admitted pro hac vice)
`mmiller@sheridanross.com
`SHERIDAN ROSS P.C.
`1560 Broadway, Suite 1200
`Denver, Colorado 80202
`Telephone: (303) 863-9700
`Facsimile: (303) 863-0223
`litigation@sheridanross.com
`
`
`
`
`ATTORNEYS FOR PLAINTIFF
`PM Holdings, LLC
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`11
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