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David Boies, Esq. BOIES, SCHILLER & FLEXNER LLP 333 Case4:11-cv-05236-YGR Document84 Filed07/17/12 Page1 of 26 1 David Boies, Esq. BOIES, SCHILLER & FLEXNER LLP 2 333 Main Street Armonk, N.Y. 10504 3 Telephone: (914) 749-8200 Facsimile: (914) 749-8300 4 Email: [email protected] (admitted pro hac vice) 5 David W. Shapiro, Esq., SBN 219265 6 BOIES, SCHILLER & FLEXNER LLP 1999 Harrison Street, Suite 900 7 Oakland, CA 94612 Telephone: (510) 874-1000 8 Facsimile: (510) 874-1460 Email: [email protected] 9 10 Counsel for Plaintiffs, 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 OAKLAND DIVISION 14 P L L 15 R CASE NO.: CV-11-5236-YGR E N X THERANOS, INC. and ELIZABETH E L F 16 HOLMES, & SECOND AMENDED R E L COMPLAINT AND L I 17 Plaintiffs, H C JURY DEMAND S , S E 18 v. I O B 19 FUISZ PHARMA LLC, RICHARD C. 20 FUISZ, and JOSEPH M. FUISZ, 21 Defendants. 22 23 24 SECOND AMENDED COMPLAINT 25 Plaintiffs Theranos, Inc. (“Theranos”) and Elizabeth Holmes, by and 26 through their undersigned counsel, state, with knowledge of their own acts and 27 status and acts taking place in their presence, and upon information and belief as 28 to all other matters, as follows: 1 ___________________________________________________________________________________________________________________ SECOND AMENDED COMPLAINT AND JURY DEMAND Case No.: CV-11-05236-YGR Case4:11-cv-05236-YGR Document84 Filed07/17/12 Page2 of 26 1 Nature of the Action 2 1. This is an action for damages and equitable relief arising from the 3 wrongful conduct of Defendants Fuisz Pharma LLC, Richard C. Fuisz, and 4 Joseph M. Fuisz in, among other things, obtaining and using Plaintiffs’ 5 confidential information, including proprietary data and intellectual property 6 (“Theranos Confidential Information”). 7 The Parties 8 2. Theranos is a corporation organized under the laws of the state of 9 Delaware with its principal place of business in Palo Alto, California. Theranos 10 is a healthcare systems company that develops groundbreaking technologies used 11 in the collection, analysis, and communication of health information. Based on 12 its highly valuable and highly praised inventions and intellectual property, 13 Theranos has created integrated systems, methods, and processes for real-time 14 testing, decision making, and individualized therapy that deliver faster, more P L L 15 accurate, and less expensive health care to physicians, patients, and consumers. R E N X E L 3. Elizabeth Holmes is a resident of Palo Alto, California. Ms. Holmes F 16 & R E L founded Theranos in 2003 and is a named inventor on several patents, including L I 17 H C S , S patents covering bodily fluid analyzers and systems. Ms. Holmes is currently the E 18 I O B 19 CEO of Theranos. 20 4. Defendant Fuisz Pharma LLC (“Fuisz Pharma”) is a limited liability 21 company formed under the laws of the state of Delaware and has its principal 22 place of business in the state of Florida. Fuisz Pharma has issued press releases 23 indicating that it has an office in Los Angeles, California. Fuisz Pharma purports 24 to be the owner of U.S. Patent No. 7,824,612 (“’612 Patent”). 25 5. Defendant Richard C. Fuisz is a resident of the state of California. 26 Richard Fuisz is the father of John Fuisz and Joseph Fuisz. Richard Fuisz is a 27 member of Fuisz Pharma. 28 2 ___________________________________________________________________________________________________________________ SECOND AMENDED COMPLAINT AND JURY DEMAND Case No.: CV-11-05236-YGR Case4:11-cv-05236-YGR Document84 Filed07/17/12 Page3 of 26 1 6. Defendant Joseph M. Fuisz (together with Richard Fuisz, the 2 “Individual Defendants”) is a resident of the state of Florida. Joseph Fuisz is 3 CEO and managing member of Fuisz Pharma. 4 Jurisdiction and Venue 5 7. Jurisdiction is proper in this Court pursuant to 28 U.S.C. §§ 1331 6 1338, 1367, and 2201. 7 8. This Court has personal jurisdiction over Defendant Fuisz Pharma 8 because it has stated that it has an office in California. This Court also has 9 personal jurisdiction over Defendant Fuisz Pharma because Fuisz Pharma 10 accepted all right, title, and interest to the ’612 Patent after this litigation was 11 commenced, and therefore, purposefully engaged in conduct directed to 12 California and designed to harm California-based Plaintiffs. Further, by order of 13 this Court, dated January 10, 2012, Fuisz Pharma was joined as a Defendant 14 pursuant to Fed. R. Civ. P. 25(c). P L L 15 9. This Court has personal jurisdiction over Defendant Richard Fuisz R E N X E L because he is a resident of California. F 16 & R E L 10. This Court also has jurisdiction over Defendants Richard and Joseph L I 17 H C S , S Fuisz because they wrongfully used the confidential and proprietary information E 18 I O B 19 of a California-based company and inventors known to reside in California, and 20 thus purposefully directed their conduct toward California. 21 11. Venue is proper under 28 U.S.C. § 1391 because, inter alia, a 22 substantial part of the events giving rise to the claims asserted herein took place 23 in this District. 24 25 26 27 28 3 ___________________________________________________________________________________________________________________ SECOND AMENDED COMPLAINT AND JURY DEMAND Case No.: CV-11-05236-YGR Case4:11-cv-05236-YGR Document84 Filed07/17/12 Page4 of 26 1 Factual Allegations 2 3 A. Ms. Holmes, Founder and CEO of Theranos, Is an Inventor of Revolutionary Health Care Technology. 4 12. Ms. Holmes conceived the technology upon which Theranos was 5 founded while a chemical engineering and electrical engineering student at 6 Stanford University. Determined to develop a means of providing accurate, cost- 7 effective, real-time medical data to medical professionals and patients at the time 8 of diagnosis and treatment, beginning in 2003 Ms. Holmes devoted herself to 9 inventing the technology, methods, and systems to realize that vision. 10 Accordingly, she dropped out of Stanford University at the age of 19 to found 11 Theranos and invested the funds she had reserved for her college education into 12 achieving her goal. 13 13. The technology, methods, and systems Ms. Holmes envisioned, and 14 P has since worked to create, promise to revolutionize healthcare by making it L L 15 R E N X possible to analyze a patient’s blood and wirelessly transmit that analysis to a E L F 16 & R secure database, where additional analyses can take place and from which the E L L I 17 H C S patient’s physician can access the results and data. With tiny volumes of bodily , S E 18 I O B fluid or one small prick of a finger, patients can transmit real-time medical data 19 and receive real-time feedback from their health care provider. 20 14. Plaintiffs’ groundbreaking discoveries and inventions comprise 21 significant and valuable advances not only with respect to the technology 22 available for the healthcare, biotechnical, and pharmaceutical industries, but also, 23 most importantly, with respect to improving medical research, point-of-care 24 treatment, and the quality and cost of healthcare. 25 26 27 28 4 ___________________________________________________________________________________________________________________ SECOND AMENDED COMPLAINT AND JURY DEMAND Case No.: CV-11-05236-YGR Case4:11-cv-05236-YGR Document84 Filed07/17/12 Page5 of 26 1 B. Plaintiffs Retained John Fuisz’s Law Firm to Prosecute Patents. 2 15. John Fuisz is a lawyer and was formerly a partner at an international, 3 multistate law firm with offices in California and Washington, D.C. (“John 4 Fuisz’s Law Firm” or “the Law Firm”). John Fuisz joined the Law Firm’s 5 Washington, D.C. office in 1999 and mainly practiced patent litigation during the 6 relevant time period. 7 16. In or about August 2003, Plaintiffs retained John Fuisz’s Law Firm 8 to provide legal services to Plaintiffs in prosecuting patent applications covering 9 Plaintiffs’ inventions. Between 2003 and approximately early 2006, John Fuisz’s 10 Law Firm represented Plaintiffs in the preparation, filing, and prosecution of their 11 domestic and international patent applications, and continued to represent 12 Plaintiffs until around October 2008. 13 17. During this representation, John Fuisz’s Law Firm provided legal 14 services to Plaintiffs, including services related to the preparation, filing, and P L L 15 prosecution of Plaintiffs’ patent applications, mainly out of its office located in R E N X E L Washington, D.C., and in so doing reviewed the information and materials that F 16 & R E L Plaintiffs sent from California in order to prosecute such applications and L I 17 H C S , S communicated with Plaintiffs in California. E 18 I O B 19 18. During John Fuisz’s Law Firm’s representation of Plaintiffs, its 20 patent attorneys were divided into various groups, including the Intellectual 21 Property (“IP”) Litigation group and the Patent Prosecution group. 22 19. Attorneys in the IP Litigation and the Patent Prosecution groups in 23 John Fuisz’s Law Firm had available to them and were permitted to access the 24 same set of documents and data electronically and in hard copy through file 25 rooms or other areas to which access was not restricted. 26 20. All attorneys, in both the IP Litigation group and the Patent 27 Prosecution group, could access confidential information included in Plaintiffs’ 28 files. 5 ___________________________________________________________________________________________________________________ SECOND AMENDED COMPLAINT AND JURY DEMAND Case No.: CV-11-05236-YGR Case4:11-cv-05236-YGR Document84 Filed07/17/12 Page6 of 26 1 C. John Fuisz’s Law Firm Drafted and Filed Provisional Patent 2 Applications with the U.S.
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