UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO M&G POLYMERS, USA, LLC Plaintiff vs. INVISTA S..R.L.

, LLC, INVISTA NORTH AMERICA S. .R.L., and AURIGA POLYMERS, INC. Defendants ) ) CASE NO. ) ) JUDGE ) ) ) JURY TRIAL DEMANDED ) ) ) ) ) )

COMPLAINT FOR FALSE ADVERTISING UNDER LANHAM ACT 43(A), 15 U.S.C. 1125(A), AND FALSE MARKING UNDER 35 U.S.C. 292

Plaintiff M&G Polymers, USA, LLC (M&G) hereby alleges as follows: THE PARTIES 1. Plaintiff M&G is a Delaware corporation with its principal place of business at

6951 Ridge Road, Sharon Center, Ohio 44274. 2. Upon information and belief, Defendant Invista S..r.l., LLC (Invista SARL) is

a Luxembourg corporation with a place of business at 4123 East 37th Street North, Wichita, Kansas 67220. 3. Upon information and belief, Defendant Invista North America S..r.l., LLC

(Invista NA, and collectively with Invista SARL, Invista) is a Luxembourg corporation with a place of business at 4123 East 37th Street North, Wichita, Kansas 67220. 4. Upon information and belief, Defendant Auriga Polymers, Inc. (Auriga) is a

Delaware corporation with its principal place of business at 1550 Dewberry Road, Spartanburg, South Carolina 29307.

JURISDICTION AND VENUE 5. The Court has personal jurisdiction over Invista SARL because it has continuous

and systematic contacts with the state of Ohio and is registered with the Ohio Secretary of State to conduct business in Ohio. Invista SARL also has the following entity as its registered agent in this District: CT Corporation System, 1300 East Ninth Street, Cleveland, OH 44114. 6. The Court has personal jurisdiction over Invista NA because it has continuous and

systematic contacts with the state of Ohio, and has caused injury to an Ohio resident in this judicial district. 7. The Court has personal jurisdiction over Auriga because it has continuous and

systematic contacts with the state of Ohio, and has caused injury to an Ohio resident in this judicial district. 8. This action arises under 35 U.S.C. 292, 15 U.S.C. 1125(a), and the statutory

law of the state of Ohio. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331 (federal question) and 1338(a)(Patent Act claim), 15 U.S.C. 1121 (Lanham Act claim), and 28 U.S.C. 1367 (supplemental jurisdiction over pendant state law claim). 9. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b)(2) because a

substantial part of the events giving rise to the claims occurred in this judicial district.

FACTUAL ALLEGATIONS 10. This action seeks redress for Invistas deliberate and unlawful false and

misleading advertising regarding its PolyShield resin product, which it has falsely claimed to be covered by United States Patent No. 7,943,216 (the 216 Patent). In fact, each patent claim of the 216 Patent requires the claimed composition to include a partially aromatic polyamide, e.g., nylon. Invistas PolyShield product does not contain any nylon. 11. Invista is one of the worlds largest producers of polymers and fibers, which are

primarily used in the production of nylon, spandex, and polyester applications. Among other products, Invista produces a PolyShield resin that, when combined with nylon by a customer, forms an oxygen and carbon dioxide barrier resin, the purpose of which is to protect oxygensensitive food and beverages in order to preserve taste and freshness. PolyShield is a polyester barrier resin offered for sale, sold, and distributed in the United States through Auriga, the exclusive licensee of Invistas relevant patents. 12. 13. PolyShield, without nylon, does not read on any of the claims of the 216 Patent. M&G is a world-wide producer of polymers and polyethylene and competes with

Invista both in the United States and around the world. Among M&Gs products is PoliProtect APB and PoliProtect JB, which are each a polyester barrier resin that also acts as a barrier to oxygen and carbon dioxide and is used in the food and beverage industry to protect product taste and freshness. M&G sells PoliProtect in competition with PolyShield in the United States and overseas. 14. Over the past several years, Invista and M&G have been involved in patent

litigation in the United States District Court for the District of Delaware, Case No. 1:11-cv01007, regarding three U.S. patents owned by Invista, one of which is the 216 Patent: United 3

States Patent No. 7,879,930 (the 930 Patent); United States Patent No. 7,919,159 (the 159 Patent); and the 216 Patent (the Delaware Litigation). Prior to trial, Invista dismissed the 159 Patent without prejudice and stipulated that Poliprotect resin does not indirectly infringe the 159 Patent, and it dismissed the 930 Patent with prejudice. Also prior to trial, the District Court ruled on summary judgment that M&G had not directly infringed, and does not directly infringe, the 159 and 216 Patents. At the same time, however, it ruled, with respect to the 216 Patent, that M&G had indirectly infringed seven of the eight claims asserted by Invista. The remaining claim as to the 216 Patent went to trial, and the Court granted a directed verdict for Invista on the claim. 15. On or about August 21, 2013, Invista issued a press release (the Press Release)

on its website and, upon information and belief, distributed the press release to the media and public, as well as its U.S. and non-U.S. customers, including at least one customer in this judicial district. A true and accurate copy of the Press Release is attached hereto as Exhibit A. 16. The Press Release states that the United States District Court for the District of

Delaware found, as a matter of law, that M&G Polymers USA and M&G USA Corporation . . . infringed all asserted claims of INVISTAs PolyShield resin patent (U.S. 7943216), and that M&Gs PoliProtect . . . resin products infringed upon the PolyShield resin patent. 17. The Press Release further states that The PolyShield resin patent discloses and

claims an innovative barrier technology designed to protect the shelf life of oxygen-sensitive food and beverages. Auriga Polymers, Inc. . . . is INVISTAs exclusive licensee of the PolyShield resin patent in the United States. . . . Parties interested in purchasing PolyShield resin in the United States should contact Auriga Polymers.

18.

In fact, the PolyShield product is not a commercial embodiment of the 216

Patent, because all of the 216 Patent claims comprise a partially aromatic polyamide, e.g., nylon, which is not present in the PolyShield product. The Press Release falsely states that Invistas PolyShield is protected by the 216 Patent. 19. Upon information and belief, Invista provided the Press Release to at least one

M&G customer located in this judicial district. Count I False Marking Under 35 U.S.C. 292 20. M&G incorporates the allegations set forth in the preceding paragraphs of this

Complaint as if fully rewritten herein. 21. Invista, through the Press Release, has advertised that its PolyShield resin

product is a commercial embodiment of, and thus protected by, the 216 Patent. 22. 23. Invistas PolyShield resin is not a commercial embodiment of the 216 Patent. Upon information and belief, Invista stated that its PolyShield product is a

commercial embodiment of the 216 Patent for the purpose of deceiving consumers in violation of 35 U.S.C. 292. 24. Invista admitted and acknowledged in the Delaware Litigation that its

PolyShield resin competes with M&Gs PoliProtect resin products, and, upon information and belief, M&G has suffered and will continue to suffer competitive injury as a result of Invistas falsely identifying the PolyShield product to be protected by the 216 Patent. Count II False Advertising and Unfair Competition under 15 U.S.C. 1125(a) 25. M&G incorporates the allegations set forth in the preceding paragraphs of this

Complaint as if fully rewritten herein.

26.

Invistas Press Release is a commercial advertisement and promotion because it

solicits customers in the United States to contact Auriga to purchase PolyShield resin. 27. By means of the Press Release, Invista made and distributed in interstate

commerce, and in this judicial district, commercial advertisements or promotions that contain false and misleading representations of fact regarding its products. The Press Release contains actual misstatements and/or misleading statements or failures to disclose, specifically the statements that (1) PolyShield is a commercial embodiment of the 216 Patent, and (2) that the District Court of Delaware found that M&Gs PoliProtectTM resin products infringed upon the PolyShield resin patent. 28. These statements misrepresent the nature, characteristics and qualities of

PolyShield resin and/or Poliprotect resin, and, upon information and belief, they actually deceive, or have a tendency to deceive, a substantial segment of M&Gs customers and potential customers. This deception is material in that it concerns whether M&Gs PoliProtectTM resin products infringe Invistas 216 Patent and is likely to influence purchasing decisions of M&Gs customers. 29. Invistas false and misleading advertising has damaged M&G by falsely

representing the nature, characteristics and qualities of PolyShield resin and/or Poliprotect resin, and thereby threatening M&G with loss of customers and irreparable harm to its reputation and goodwill. 30. The foregoing statements and omissions constitute false and/or misleading

descriptions and representations of fact under Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).

31.

Invista has caused, and will continue to cause, immediate and irreparable injury to

M&G, including injury to M&Gs business, reputation and goodwill, for which there is no adequate remedy at law. M&G is therefore entitled to an injunction under 15 U.S.C. 1116 (1) restraining Invista, its agents, employees, representatives and all persons acting in concert with Invista from engaging in future acts of false advertising, (2) ordering the recall of the Press Release, and (3) such other relief as may be needed to remedy the harm caused by the Press Release. 32. Pursuant to 15 U.S.C. 1117, M&G is further entitled to recover from Invista the

damages sustained by M&G as a result of Invistas acts in violation of 15 U.S.C. 1125(a). M&G is at present unable to ascertain the full extent of the monetary damages it has sustained by reason of Invistas acts. 33. Pursuant to 15 U.S.C. 1117, M&G is further entitled to recover from Invista the

gains, profits and advantages that Invista has obtained as a result of Invistas acts in violation of 15 U.S.C. 1125(a). M&G is at present unable to ascertain the full extent of the gains, profits and advantages Invista has obtained by reason of Invistas acts. 34. Pursuant to 15 U.S.C. 1117, M&G is further entitled to recover the costs of this

action. Moreover, M&G is informed and believes, and on that basis alleges, that Invistas conduct was undertaken willfully and with the intention of causing confusion, mistake or deception, making this an exceptional case entitling M&G to recover additional damages and reasonable attorneys fees. Count III Common Law False Advertising and Unfair Competition 35. M&G incorporates the allegations set forth in the preceding paragraphs of this

Complaint as if fully rewritten herein. 7

36. advertising. 37.

By virtue of the actions above, Invistas has engaged in false and misleading

Invista has caused, and will continue to cause, immediate and irreparable injury to

M&G, including injury to M&Gs business, reputation and goodwill, for which there is no adequate remedy at law. M&G is therefore entitled to the equitable remedy of an injunction restraining Invista, its agents, employees, representatives and all persons acting in concert with Invista from engaging in future acts of false advertising and ordering removal of all of Invistas false advertisements. 38. M&G is further entitled to recover from Invista the damages sustained by M&G

as a result of Invistas acts. M&G is at present unable to ascertain the full extent of the monetary damages it has sustained by reason of Invistas acts. 39. M&G is further entitled to recover from Invista the gains, profits and advantages

that Invista has obtained as a result of Invistas acts. M&G is at present unable to ascertain the full extent of the gains, profits and advantages Invista has obtained by reason of Invistas acts. 40. M&G is further entitled to recover the costs of this action. Moreover, M&G is

informed and believes, and on that basis alleges, that Invistas conduct was undertaken willfully and with the intention of causing confusion, mistake or deception, making this an exceptional case entitling M&G to recover additional damages and reasonable attorneys fees. Count IV Violation of Ohio Deceptive Trade Practices Act 41. M&G incorporates the allegations set forth in the preceding paragraphs of this

Complaint as if fully rewritten herein.

42.

By virtue of the actions above, Invista has engaged in deceptive trade practices by

falsely representing that PolyShield resin has characteristics that it does not have and that it is of a particular standard, quality or grade, in violation of O.R.C. 4165.02(A)(7) and (9). 43. 44. At all times, Invistas actions have been willful, knowing and intentional. Invistas actions have caused, and will continue to cause, immediate and

irreparable injury to M&G, including injury to M&Gs business, reputation and goodwill, for which there is no adequate remedy at law. M&G is therefore entitled to the equitable remedy of an injunction under O.R.C. 4165.03, restraining Invista, its agents, employees, representatives and all persons acting in concert with Invista from engaging in future acts of deceptive trade practices and ordering removal of all of Invistas false advertisements. 45. M&G is further entitled to recover from Invista the damages sustained by M&G

as a result of Invistas acts. M&G is at present unable to ascertain the full extent of the monetary damages it has sustained by reason of Invistas acts. 46. M&G is further entitled to recover from Invista the gains, profits and advantages

that Invista has obtained as a result of Invistas acts. M&G is at present unable to ascertain the full extent of the gains, profits and advantages Invista has obtained by reason of Invistas acts. 47. M&G is further entitled to recover the costs of this action. Moreover, M&G is

informed and believes, and on that basis alleges, that Invistas conduct was undertaken willfully and with the intention of causing confusion, mistake or deception, making this an exceptional case entitling M&G to recover additional damages and reasonable attorneys fees.

PRAYER FOR RELIEF Wherefore, M&G hereby requests that this Court enter a judgment in its favor as follows:

A.

That Invista be adjudged to have violated 35 U.S.C. 292 by falsely stating in

advertising that its PolyShield product is a commercial embodiment of the 216 Patent; B. That Invista be adjudged to have violated 15 U.S.C. 1125(a) by publishing false

and/or misleading representations and descriptions about its PolyShield resin product and/or M&Gs Poliprotect resin products; C. That Invista be adjudged to have engaged in common law false advertising and

unfairly competing against M&G by using false, deceptive or misleading statements of fact that misrepresent its PolyShield resin product and/or M&Gs PoliprotectTM resin products; D. That Invista be adjudged to have violated O.R.C. 4165.02 by engaging in

deceptive trade practices through publication of false, deceptive or misleading statements of fact about the PolyShield resin product and/or Poliprotect resin products; E. For injunctive relief prohibiting Invista, its agents, or anyone working for, in

concert with or on behalf of Invista from engaging in false or misleading advertising with respect to its PolyShield resin product, which relief includes but is not limited to, removal of all false or misleading advertisements and corrective advertising to remedy the effects of Invistas false advertising; F. For an order requiring Invista to correct any erroneous impression persons may

have derived concerning PolyShield resin product, including without limitation, the placement of corrective advertising and providing written notice to the public; G. That the Court enter an order for judgment against Invista for damages suffered

by M&G in an amount to be proven at trial; H. its conduct; 10 That M&G be awarded Invistas profits obtained by Invista has a consequence of

I.

That M&G be awarded all of the costs and attorneys' fees it has incurred in

connection with this action; J. That all of Invistas misleading and deceptive materials be removed and destroyed

pursuant to 15 U.S.C. 1118 and other equitable relief; K. L. That M&G be granted prejudgment and post-judgment interest; and Such other and further relief as this Court deems is just and proper.

Respectfully submitted,

/s/ Megan D. Dortenzo Megan Dortenzo (0079047) Megan.Dortenzo@ThompsonHine.com Arthur P. Licygiewicz (0068458) Art.Licygiewicz@ThompsonHine.com THOMPSON HINE LLP 3900 Key Center, 127 Public Square Cleveland, Ohio 44114 Telephone: (216) 566-5500 Fax: (216) 566-5800 Attorneys for Plaintiff M&G Polymers USA, LLC

JURY DEMAND Pursuant to Rule 38 of the Federal Rules of Civil Procedure, plaintiff hereby requests a trial by jury as to all issues so triable.

An Attorney for Plaintiff M&G Polymers USA, LLC 11

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