`
`
`
`Alaina M. Stedillie (Wyoming Bar No. 6-4327)
`astedillie@crowleyfleck.com
`CROWLEY | FLECK
`111 W 2nd St. #220
`Casper, WY 82601
`Telephone: (307) 265-2279
`Facsimile: (307) 265-2307
`
`Brian N. Platt (pro hac vice forthcoming)
`bplatt@wnlaw.com
`Timothy D. Nichols (pro hac vice forthcoming)
`tnichols@wnlaw.com
`WORKMAN NYDEGGER
`60 East South Temple Suite 1000
`Salt Lake City, UT 84111
`Telephone: (801) 533-9800
`Facsimile: (801) 328-1707
`
`Counsel for Plaintiff Axcess Global Sciences, LLC
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF WYOMING
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`
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`
`)
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`
`
`Civil No:
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`) ) ) ) )
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`)
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`)
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`AXCESS GLOBAL SCIENCES, LLC,
`
` Plaintiff,
`
`vs.
`
`TOP NOTCH NUTRITION LLC
`
` Defendant.
`
`COMPLAINT FOR PATENT INFRINGMENT AND JURY DEMAND
`
`
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`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 2 of 22
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`
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`Plaintiff Axcess Global Sciences, LLC hereby complains and alleges as follows against
`
`Defendant Top Notch Nutrition LLC:
`
`THE PARTIES
`
`1.
`
`Plaintiff Axcess Global, LLC is a Utah limited liability company with a principal
`
`place of business at 2157 Lincoln Street, Salt Lake City, UT 84106 (hereinafter “AGS” or
`
`“Plaintiff”).
`
`2.
`
`Defendant Top Notch Nutrition LLC is a Wyoming limited liability company with
`
`a principal place of business at 1910 Thomas Avenue, Cheyenne, WY 82001 (hereinafter “Top
`
`Notch” or “Defendant”).
`
`3.
`
`Defendant Top Notch, upon information and belief, does business within the State
`
`of Wyoming, is engaged in continuous and systematic business within the District of Wyoming,
`
`conducts and solicits business within this judicial district, and derives substantial revenue from the
`
`sales of its products and/or services within this judicial district. Upon information and belief, Top
`
`Notch has sold and has made offers for sale of products that infringe, contributorily infringe, and/or
`
`induce infringement by others as hereinafter stated in Wyoming and within this judicial district.
`
`JURISDICTION
`
`4.
`
`This matter arises under the patent laws of the United States, Title 35 United States
`
`Code, §§1 et seq.
`
`5.
`
`This Court has personal jurisdiction over Defendant as Defendant maintains a
`
`principal place of business in this judicial district, has committed and continues to commit acts of
`
`infringement in violation of 35 U.S.C. § 271 in this judicial district, and because Defendant places
`
`infringing products into the stream of commerce with the knowledge or understanding that such
`
`
`
`
`
`2
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 3 of 22
`
`
`
`products are sold in the State of Wyoming and in this judicial district. In addition, the acts by
`
`Defendant cause substantial injury to Plaintiff in this judicial district. On information and belief,
`
`Defendant derives substantial revenue from its sale of infringing products within this judicial
`
`district, expects its actions to have consequences within this judicial district, and derives
`
`substantial revenue from interstate and international commerce directed to and from this judicial
`
`district. In addition, Defendant has taken advantage of the privilege of doing business in this
`
`judicial district.
`
`6.
`
`This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question)
`
`and 28 U.S.C. § 1338(a) (any Act of Congress relating to patents or trademarks).
`
`7.
`
`Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391 and 1400.
`
`Defendant is a registered limited liability company in this judicial district and Defendant is subject
`
`to personal jurisdiction in this State. On information and belief, a substantial part of the events
`
`giving rise to the claims occurred in this judicial district, including Defendant’s sale of its
`
`infringing products in this judicial district and/or shipping of products into this judicial district.
`
`BACKGROUND
`
`8.
`
`Plaintiff AGS is an innovator in the field of exogenous ketones and ketogenic
`
`precursor supplement products. These products aid the body in producing and sustaining elevated
`
`levels of ketone bodies in the blood and assist in the body’s transition into nutritional ketosis.
`
`Among the Plaintiff’s innovations are the inventions claimed in U.S. Patent No. 11,020,362 (the
`
`“’362 Patent”) and U.S. Patent No. 11,241,403 (the “’403 Patent) which are attached as Exhibit A
`
`(collectively the “Asserted Patents”). The Asserted Patents describe and claim compositions for
`
`increasing blood ketone levels using various compositions of beta-hydroxybutyrate salts. The
`
`
`
`
`
`3
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 4 of 22
`
`
`
`claimed compositions are useful in inducing and sustaining a state of nutritional ketosis. Ketosis
`
`is defined in the Asserted Patents as follows:
`
`“Ketosis” as used herein refers to a subject having blood ketone levels
`within the range of about 0.5 mmol/L and about 16 mmol/L in a subject.
`Ketosis may improve mitochondrial function, decrease reactive oxygen
`species production, reduce inflammation and increase the activity of
`neurotrophic factors.
`
`
`’362 Patent, at 6:13-21, ’403 Patent, at 6:13-18. Products that practice the inventions claimed in
`
`the Asserted Patents are sometimes referred to as “keto supplements.”
`
`9.
`
`Defendant
`
`sells
`
`its own keto
`
`supplement product on
`
`its website
`
`https://topnotchnutrition.com/, the Keto Magic exogenous ketone supplement shown below:
`
`https://topnotchnutrition.com/products/keto-magic
`
`4
`
`
`
`
`
`
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 5 of 22
`
`
`
`
`
`10.
`
`Defendant has also sold its Keto Magic supplement on other third-party websites,
`
`including https://www.walmart.com/, as exemplified below:
`
`
`
`https://www.walmart.com/ip/Keto-Magic-Activated-Exogenous-Ketone-Supplement-Powered-
`Patent-Pending-Blend-KETOBA-BHBs-BA-Achieve-Stay-Ketosis-Ketogenesis-Feel-Energized-
`Empowere/961084876
`
`Defendant describes the benefits of its keto supplement product, and specifically,
`
`11.
`
`how its product “supports ketosis” and will help a consumer “reach ketosis in 15 minutes!”:
`
`
`
`
`
`
`
`5
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 6 of 22
`
`
`
`
`
`
`
`https://topnotchnutrition.com/products/keto-magic
`
`12.
`
`Defendant advertises that its Keto Magic supplement product includes the
`
`following ingredients:
`
`
`
`
`
`
`
`6
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 7 of 22
`
`
`
`https://topnotchnutrition.com/products/keto-magic
`
`COUNT I – INFRINGEMENT OF U.S. PATENT NO. 11,020,362
`
`
`
`13.
`
`Plaintiff incorporates all of the allegations of the preceding paragraphs as if fully
`
`set forth herein.
`
`14.
`
`On June 1, 2021, the ’362 Patent, titled “Beta-hydroxybutyrate mixed salt
`
`compositions and methods of use” was duly and legally issued. A true and correct copy of the
`
`’362 Patent is attached as Exhibit A.
`
`
`
`
`
`7
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 8 of 22
`
`
`
`15.
`
`AGS is the owner of the ’362 Patent.
`
`16.
`
`Defendant makes, uses, offers for sale, sells, and distributes the Keto Magic
`
`exogenous ketone supplement product that practices the invention of the ’362 Patent (the “Accused
`
`Product”).
`
`17.
`
`Exemplary claim 1 of the ’362 Patent is reproduced below:
`
`1. A composition for increasing blood ketone level in a subject,
`comprising:
`
`at least three beta-hydroxybutyrate salts selected from:
`
`
`
`
`
`
`
`
`
`
`
`
` wherein the composition is in solid and/or powder form,
`
`
`
`
`
`
`sodium beta-hydroxybutyrate;
`
`potassium beta-hydroxybutyrate;
`
`
`
`calcium beta-hydroxybutyrate; and
`
` magnesium beta-hydroxybutyrate;
`
`wherein the composition is free of medium chain fatty acids having 6 to
`12 carbons and glycerides or other esters thereof.
`
`
`’362 Patent, claim 1.
`
`18.
`
`The Accused Product infringes at least claim 1 of the ’362 Patent in the exemplary
`
`manner described below.
`
`19.
`
`To the extent the preamble of claim 1 is limiting, the Accused Product meets the
`
`preamble of claim 1 as set forth below:
`
`1. A composition for increasing blood ketone level in a subject,
`comprising:
`
`
`
`
`
`
`
`
`
`
`at least three beta-hydroxybutyrate salts selected from:
`
`
`
`sodium beta-hydroxybutyrate;
`8
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 9 of 22
`
`
`
`
`
`
`
`potassium beta-hydroxybutyrate;
`
`calcium beta-hydroxybutyrate; and
`
`
`
`
`
`
`
`
` wherein the composition is in solid and/or powder form,
`
`
` magnesium beta-hydroxybutyrate;
`
`wherein the composition is free of medium chain fatty acids having 6 to
`12 carbons and glycerides or other esters thereof.
`
`
`’362 Patent, claim 1.
`
`https://topnotchnutrition.com/products/keto-magic
`
`20.
`
`The Accused Product further meets the limitations of claim 1 as set forth below:
`
`1. A composition for increasing blood ketone level in a subject,
`comprising:
`
`
`
`at least three beta-hydroxybutyrate salts selected from:
`
`
`
`sodium beta-hydroxybutyrate;
`
`
`
`
`
`
`
`
`
`
`
`
` wherein the composition is in solid and/or powder form,
`
`
`
`
`
`
`potassium beta-hydroxybutyrate;
`
`calcium beta-hydroxybutyrate; and
`
` magnesium beta-hydroxybutyrate;
`
`wherein the composition is free of medium chain fatty acids having 6 to
`
`9
`
`
`
`
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 10 of 22
`
`
`
`12 carbons and glycerides or other esters thereof.
`
`
`’362 Patent, claim 1.
`
`https://topnotchnutrition.com/products/keto-magic
`
`21.
`
`The Accused Product further meets the limitations of claim 1 as set forth below:
`
`1. A composition for increasing blood ketone level in a subject,
`comprising:
`
`
`
`
`
`
`
`
`
`
`
`
`at least three beta-hydroxybutyrate salts selected from:
`
`
`
`sodium beta-hydroxybutyrate;
`10
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 11 of 22
`
`
`
`
`
`
`
`potassium beta-hydroxybutyrate;
`
`calcium beta-hydroxybutyrate; and
`
`
`
`
`
`
`
`
` wherein the composition is in solid and/or powder form,
`
`
` magnesium beta-hydroxybutyrate;
`
`wherein the composition is free of medium chain fatty acids having 6 to
`
`12 carbons and glycerides or other esters thereof.
`
`
`’362 Patent, claim 1.
`
`https://www.facebook.com/livetopnotch/videos/keto-magic-/171266970444627/
`
`
`
`
`
`
`
`11
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 12 of 22
`
`
`
`22.
`
`The Accused Product further meets the limitations of claim 1 as set forth below:
`
`1. A composition for increasing blood ketone level in a subject,
`comprising:
`
`at least three beta-hydroxybutyrate salts selected from:
`
`
`
`
`
`
`
`
`
`
`
`
` wherein the composition is in solid and/or powder form,
`
`
`
`
`
`
`sodium beta-hydroxybutyrate;
`
`potassium beta-hydroxybutyrate;
`
`
`
`calcium beta-hydroxybutyrate; and
`
` magnesium beta-hydroxybutyrate;
`
`wherein the composition is free of medium chain fatty acids having
`6 to 12 carbons and glycerides or other esters thereof.
`
`
`’362 Patent, claim 1.
`
`
`
`
`
`12
`
`
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 13 of 22
`
`
`
`https://topnotchnutrition.com/products/keto-magic
`
`23.
`
`Defendant has directly infringed at least claim 1 of the ’362 Patent in the United
`
`States by making, using, offering for sale, selling, and/or importing the Accused Product in
`
`violation of 35 U.S.C. § 271(a). As such, Defendant is liable for infringement of the ’362 Patent
`
`under 35 U.S.C. § 271(a).
`
`24.
`
`Defendant is on notice of its direct and indirect infringement of the ’362 Patent,
`
`having received written notice of their infringement from AGS regarding their infringement of the
`
`’362 Patent.
`
`25.
`
`Defendant’s acts of infringement have caused damage to Plaintiff. Plaintiff is
`
`therefore entitled to recover damages sustained as a result of Defendant’s wrongful acts in an
`
`amount that is to be proven at trial.
`
`26.
`
`Defendant has willfully infringed the ’362 Patent with knowledge of the ’362
`
`Patent or was willfully blind to the ’362 Patent and the risk of the Defendant’s infringement.
`
`COUNT II – INFRINGEMENT OF U.S. PATENT NO. 11,241,403
`
`27.
`
`Plaintiff incorporates all of the allegations of the preceding paragraphs as if fully
`
`set forth herein.
`
`28.
`
`On February 8, 2022, the ’403 Patent, titled “Beta-hydroxybutyrate mixed salt
`
`compositions and methods of use” was duly and legally issued. A true and correct copy of the ‘403
`
`Patent is attached as Exhibit A.
`
`29.
`
`AGS is the owner of the ’403 Patent.
`
`30.
`
`Defendant makes, uses, offers for sale, sells, and distributes the Accused Product
`
`which practices the invention of the ’403 Patent.
`
`
`
`
`
`13
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 14 of 22
`
`
`
`31.
`
`Exemplary claim 13 of the ’403 Patent is reproduced below:
`
`13. A composition for increasing blood ketone level in a subject,
`comprising:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`at least one beta-hydroxybutyrate salts selected from:
`
`
`
`calcium beta-hydroxybutyrate; and
`
` magnesium beta-hydroxybutyrate; and
`
`at least one other beta-hydroxybutyrate salt selected from:
`
`
`
`
`
`
`
`sodium beta-hydroxybutyrate;
`
`potassium beta-hydroxybutyrate;
`
`calcium beta-hydroxybutyrate;
`
` magnesium beta-hydroxybutyrate; and
`
`
`
`amino acid salts of beta-hydroxybutyrate,
`
`wherein the composition comprises a greater total weight of calcium and
`magnesium beta-hydroxybutyrate salts than a total weight of sodium
`and potassium beta-hydroxybutyrate salts,
`
`
`wherein the composition is free of medium chain fatty acids having 6 to
`12 carbons and glycerides or other esters thereof.
`
`
`’403 Patent, claim 13.
`
`32.
`
`The Accused Product infringes at least claim 13 of the ’403 Patent in the exemplary
`
`manner described below.
`
`33.
`
`To the extent the preamble of claim 13 is limiting, the Accused Product meets the
`
`preamble of claim 13 as set forth below:
`
`13. A composition for increasing blood ketone level in a subject,
`comprising:
`
`
`
`
`at least one beta-hydroxybutyrate salts selected from:
`14
`
`
`
`
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 15 of 22
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`calcium beta-hydroxybutyrate; and
`
` magnesium beta-hydroxybutyrate; and
`
`at least one other beta-hydroxybutyrate salt selected from:
`
`
`
`
`
`
`
`sodium beta-hydroxybutyrate;
`
`potassium beta-hydroxybutyrate;
`
`calcium beta-hydroxybutyrate;
`
` magnesium beta-hydroxybutyrate; and
`
`
`
`amino acid salts of beta-hydroxybutyrate,
`
`wherein the composition comprises a greater total weight of calcium and
`magnesium beta-hydroxybutyrate salts than a total weight of sodium
`and potassium beta-hydroxybutyrate salts,
`
`
`wherein the composition is free of medium chain fatty acids having 6 to
`12 carbons and glycerides or other esters thereof.
`
`
`’403 Patent, claim 13.
`
`34.
`
`The Accused Product further meets the limitations of claim 13 as set forth below:
`
`
`
`13. A composition for increasing blood ketone level in a subject,
`comprising:
`
`
`
`
`
`
`at least one beta-hydroxybutyrate salts selected from:
`
`
`
`calcium beta-hydroxybutyrate; and
`
`
`
`
`
`15
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 16 of 22
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` magnesium beta-hydroxybutyrate; and
`
`at least one other beta-hydroxybutyrate salt selected from:
`
`
`
`
`
`
`
`sodium beta-hydroxybutyrate;
`
`potassium beta-hydroxybutyrate;
`
`calcium beta-hydroxybutyrate;
`
` magnesium beta-hydroxybutyrate; and
`
`
`
`amino acid salts of beta-hydroxybutyrate,
`
`wherein the composition comprises a greater total weight of calcium and
`magnesium beta-hydroxybutyrate salts than a total weight of sodium
`and potassium beta-hydroxybutyrate salts,
`
`
`wherein the composition is free of medium chain fatty acids having 6 to
`12 carbons and glycerides or other esters thereof.
`
`
`’403 Patent, claim 13.
`
`
`
`
`
`16
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 17 of 22
`
`35.
`
`The Accused Product further meets the limitations of claim 13 as set forth below:
`
`13. A composition for increasing blood ketone level in a subject,
`comprising:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`at least one beta-hydroxybutyrate salts selected from:
`
`
`
`calcium beta-hydroxybutyrate; and
`
` magnesium beta-hydroxybutyrate; and
`
`at least one other beta-hydroxybutyrate salt selected from:
`
`
`
`sodium beta-hydroxybutyrate;
`17
`
`
`
`
`
`
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 18 of 22
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`potassium beta-hydroxybutyrate;
`
`calcium beta-hydroxybutyrate;
`
` magnesium beta-hydroxybutyrate; and
`
`
`
`amino acid salts of beta-hydroxybutyrate,
`
`wherein the composition comprises a greater total weight of calcium
`and magnesium beta-hydroxybutyrate salts than a total weight
`of sodium and potassium beta-hydroxybutyrate salts,
`
`
`wherein the composition is free of medium chain fatty acids having 6 to
`12 carbons and glycerides or other esters thereof.
`
`
`’403 Patent, claim 13.
`
`36.
`
`The Accused Product further meets the limitations of claim 13 as set forth below:
`
`18
`
`
`
`
`
`
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 19 of 22
`
`
`
`13. A composition for increasing blood ketone level in a subject,
`comprising:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`at least one beta-hydroxybutyrate salts selected from:
`
`
`
`calcium beta-hydroxybutyrate; and
`
` magnesium beta-hydroxybutyrate; and
`
`at least one other beta-hydroxybutyrate salt selected from:
`
`
`
`
`
`
`
`sodium beta-hydroxybutyrate;
`
`potassium beta-hydroxybutyrate;
`
`calcium beta-hydroxybutyrate;
`
` magnesium beta-hydroxybutyrate; and
`
`
`
`amino acid salts of beta-hydroxybutyrate,
`
`wherein the composition comprises a greater total weight of calcium and
`magnesium beta-hydroxybutyrate salts than a total weight of sodium
`and potassium beta-hydroxybutyrate salts,
`
`
`wherein the composition is free of medium chain fatty acids having
`6 to 12 carbons and glycerides or other esters thereof.
`
`
`’403 Patent, claim 13.
`
`
`
`
`
`19
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 20 of 22
`
`
`
`
`
`37.
`
`Defendant has directly infringed at least claim 13 of the ’403 Patent in the United
`
`States by making, using, offering for sale, selling, and/or importing the Accused Product in
`
`violation of 35 U.S.C. § 271(a). As such, Defendant is liable for infringement of the ’403 Patent
`
`under 35 U.S.C. § 271(a).
`
`38.
`
`Defendant is on notice of its direct and indirect infringement of the ’403 Patent,
`
`having received written notice of their infringement from AGS regarding its infringement of the
`
`’403 Patent.
`
`
`
`
`
`20
`
`
`
`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 21 of 22
`
`
`
`39.
`
`Defendant’s acts of infringement have caused damage to Plaintiff. Plaintiff is
`
`therefore entitled to recover damages sustained as a result of Defendant’s wrongful acts in an
`
`amount that is to be proven at trial.
`
`40.
`
`Defendant has willfully infringed the ’403 Patent with knowledge of the ’403 Patent
`
`or was willfully blind to the ’403 Patent and the risk of the Defendant’s infringement.
`
`PRAYER FOR RELIEF
`
`Wherefore, Plaintiff respectfully prays that the Court enter judgment in its favor and award
`
`the following relief against Defendant:
`
`A.
`
`A judgment that Defendant has infringed one or more claims of the Asserted Patents
`
`literally and/or under the doctrine of equivalents;
`
`B.
`
`C.
`
`D.
`
`An award of damages pursuant to 35 U.S.C. § 284;
`
`Entry of an injunction against further infringement of the Asserted Patents;
`
`A judgment that this is an exceptional case pursuant to 35 U.S.C. § 285 and an
`
`award of the Plaintiff’s reasonable attorneys’ fees in this litigation;
`
`E.
`
`F.
`
`G.
`
`An award of prejudgment and post-judgment interest on its damages;
`
`An award of costs; and
`
`Any such other and further relief as the Court deems proper.
`
`DEMAND FOR JURY TRIAL
`
`
`
`Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a jury
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`trial on all matters triable to a jury.
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`21
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`Case 1:22-cv-00127-SWS Document 1 Filed 06/08/22 Page 22 of 22
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`DATED this 8th day of June 2022.
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`Respectfully submitted,
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`CROWLEY | FLECK
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`By: /s/ Alaina M. Stedillie
`Alaina M. Stedillie
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`WORKMAN NYDEGGER
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`Brian N. Platt (pro hac vice forthcoming)
`Timothy D. Nichols (pro hac vice forthcoming)
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`Counsel for Plaintiff Axcess Global Sciences, LLC
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`22
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