Case: 1:04-cv-00836 Document #: 80 Filed: 10/10/07 Page 1 of 6 PageID #:1809

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

ABBOTT LABORATORIES, ) an Illinois Corporation, and ) CENTRAL GLASS COMPANY LTD., ) a Japanese Corporation, ) ) Plaintiffs, ) ) Hon. Ronald A. Guzman ) v. ) Magistrate Judge Ashman ) ) Case No. 04 C 0836 BAXTER HEALTHCARE, CORP., ) a Delaware Corporation, ) JURY TRIAL DEMANDED ) Defendant. )

PLAINTIFFS' FIRST AMENDED COMPLAINT

Abbott Laboratories (“Abbott”) and Central Glass Company Ltd. (“Central

Glass”) by and through their attorneys, hereby complain against Defendant Baxter Healthcare

Corp. (“Baxter”) as follows:

NATURE OF THE ACTION

1. This is a patent infringement action involving United States Patent No. 6,677,492

(“the ‘492 patent”), which relates to sevoflurane. Sevoflurane is an anesthetic inhalant which is

used in the induction and maintenance of general anesthesia in adult and pediatric patients.

Abbott filed a New Drug Application and received authorization from the Federal Food and

Drug Administration (“FDA”) to market and sell sevoflurane in the United States. Abbott was the first to sell sevoflurane in the United States and does so under the tradename Ultane®.

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THE PARTIES

2. Plaintiff Abbott Laboratories is an Illinois corporation with its principal place of business in Abbott Park, Illinois. Abbott is a diversified health care company.

3. Plaintiff Central Glass is a Japanese corporation with its principal place of business in Tokyo, Japan.

4. Defendant Baxter Healthcare Corp. is a Delaware corporation with its principal place of business in Deerfield, Illinois.

JURISDICTION AND VENUE

5. This action arises under the Patent Laws of the United States, Title 35, United

States Code § 271, et seq., for infringement of the ‘492 patent. Jurisdiction in this Court is

proper pursuant to 28 U.S.C. §§ 1331, 1338(a).

6. Venue is proper under 28 U.S.C. §§ 1391 and 1400(b).

7. This Court has personal jurisdiction over the Defendants because, among other

things, Baxter does business and transacts business in this Judicial District and has committed acts of patent infringement in this Judicial District, including, inter alia, making, using, offering

for sale, and selling infringing products in this Judicial District.

BACKGROUND

8. Pursuant to its plans to market and sell a sevoflurane product, Baxter filed an

Abbreviated New Drug Application (“ANDA”) in June 2000 and amendments thereto with the

FDA to market and sell sevoflurane in the United States. Pursuant to 21 U.S.C. §

355(j)(2)(A)(vii)(IV), Baxter also filed with the FDA a certification alleging that its proposed

product does not infringe the claims of the parent patent to the ‘492 patent and that the parent

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patent was invalid and unenforceable. Baxter made this certification as part of its plan to market and sell its sevoflurane product.

9. On January 13, 2004, the United States Patent and Trademark Office (“PTO”) duly and legally issued the ‘492 patent, which is entitled “Fluoroether Compositions and Methods for

Inhibiting Their Degradation in the Presence of A Lewis Acid.” Abbott and Central Glass are the assignees and owners of the ‘492 patent and have the right to sue for infringement thereof. A true and correct copy of the ‘492 patent is attached hereto as Exhibit A.

10. Baxter has received approval from the FDA to market and sell its sevoflurane product in the United States.

11. Baxter has infringed at least one claim of the '492 patent through, among other activities, the manufacture, use, importation, sale and/or offer for sale of Baxter's ANDA sevoflurane product with an epoxyphenolic resin liner.

COUNT I – INFRINGEMENT OF UNITED STATES PATENT NO. 6,677,492

12. Plaintiffs repeat and reallege the allegations contained in paragraphs 1-11 of the

First Amended Complaint as if those allegations were set forth verbatim herein.

13. Abbott and Central Glass are the assignees and owners of the ‘492 patent and have the right to sue for infringement thereof. A true and correct copy of the ‘492 patent is attached hereto as Exhibit A.

14. Upon information and belief, Baxter has been directly and indirectly infringing at least Claim 1 of the '492 patent by making, using, selling, and offering for sale Baxter's sevoflurane ANDA product, contributing to the use by others of Baxter's infringing sevoflurane

ANDA product, and inducing others to use Baxter's infringing sevoflurane ANDA product.

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15. Baxter has not obtained a license under the ‘492 patent and Baxter has been aware

of the '492 patent since at least February 2, 2004.

16. Upon information and belief, Baxter's infringement of the '492 patent has been and continues to be willful and deliberate.

17. Upon information and belief, Baxter's infringement of the '492 patent will continue

unless enjoined by this Court.

18. As a direct and proximate result of Baxter's infringement of the '492 patent,

Plaintiffs have suffered and will continue to suffer irreparable injury and damages in an amount

not yet determined for which Plaintiffs are entitled to relief.

WHEREFORE, Plaintiffs pray for entry of judgment in their favor and against

Baxter as follows:

A. Enter judgment that Baxter has directly infringed the '492 patent;

B. Enter judgment that Baxter has induced infringement of the '492 patent;

C. Enter judgment that Baxter has contributed to infringement of the '492

patent;

D. Enter judgment that Baxter has willfully infringed the '492 patent;

E. Enter judgment that this case is found to be an "exceptional case" under 35

U.S.C. § 285;

F. Enter a permanent injunction, pursuant to 35 U.S.C. § 283, restraining and

enjoining Baxter and their respective officers, agents, servants, employees, attorneys, customers,

and those in concert or participation with them from any further sales or use of their infringing products and services and any other infringement of the '492 patent, whether direct or indirect;

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G. Enter judgment ordering Baxter to compensate Plaintiffs for Baxter's infringement of the '492 patent pursuant to 35 U.S.C. § 284;

H. Enter a judgment ordering Baxter to pay enhanced damages pursuant to 35

U.S.C. § 284;

I. Enter a judgment for an award of pre-judgment and post-judgment interest and costs to Plaintiffs pursuant to 35 U.S.C. § 284;

J. Enter a judgment for an award of Plaintiffs' reasonable attorneys' fees pursuant to 35 U.S.C. § 285; and

K. Grant Plaintiffs such other and further relief as the Court may deem just, proper, and equitable under the circumstances.

DEMAND FOR JURY TRIAL

Plaintiffs demand a trial by jury on all issues presented in this First Amended

Complaint.

Respectfully submitted,

ABBOTT LABORATORIES CENTRAL GLASS CO., LTD.

Dated: October 10, 2007 By: s/ R. Mark McCareins One of Their Attorneys

R. Mark McCareins Peggy M. Balesteri James F. Herbison Winston & Strawn 35 West Wacker Drive Chicago, Illinois 60601 (312) 558-5600

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CERTIFICATE OF SERVICE

The undersigned, an attorney, hereby certifies that he caused a copy of the foregoing PLAINTIFFS’ FIRST AMENDED COMPLAINT to be served electronically and via hand delivery on this 10th day of October, 2007 on:

David T. Pritikin William H. Baumgartner, Jr. Russell E. Cass SIDLEY AUSTIN BROWN & WOOD LLP 1 South Dearborn Street Chicago, Illinois 60603

___s/ R. Mark McCareins ___

R. Mark McCareins Peggy M. Balesteri James F. Herbison WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, Illinois 60601 (312) 558-5600

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