Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 1 of 15 PageID #: 80

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1 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 1 of 15 PageID #: 80 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION ERCHONIA CORPORATION, Plaintiff, v. CHROMOGENEX US, INC.; CHROMOGENEX TECHNOLOGIES, LTD.; JAMES LUNDIN d/b/a BLUE DIAMOND BODY; PREMIER MED SPA, L.L.C. d/b/a PREMIER MED SPA & WEIGHT LOSS; FINER TOUCH AESTHETICS, L.L.C. d/b/a THE FINER TOUCH; JAN BAILEY d/b/a I-LIPO NAC; BIOFIT WEIGHT & HORMONE CLINIC, L.L.C.; ABSOLUTE DERMATOLOGY & MEDI-SPA, P.A.; WELLSPRINGS DERMASPA, L.L.C.; PERSONIQUE ON THE SPOT, L.L.C.; ROBERT FERNANDEZ d/b/a SYNERGY MEDICAL AGE MANAGEMENT & AESTHETICS; ATHENA WELLNESS CENTER, P.A.; J MAYOR d/b/a VOILA OF TOMBALL; AZURE WELLNESS, L.L.C. d/b/a AZURE WELLNESS GROUP; PLAZA OB-GYN ASSOCIATES, P.A. d/b/a BINZ WEIGHT LOSS CENTER; SIMPLY SLENDER, L.L.C.; HOUSTON PLASTIC AND RECONSTRUCTIVE SURGERY, L.L.P.; PERMIAN WOMEN S CENTER, P.A.; THE WOMEN S CENTER OF THE PERMIAN BASIN, P.A.; BODY BENEFITS, INC.; UBILC, L.L.C. d/b/a UNIVERSAL BODY IMAGE AND LASER CENTER; and 2TZ WELLNESS VENTURES, L.L.C. d/b/a SPA ON THE SQUARE, Defendants. CASE NO. 2:15-CV-1652 JURY DEMANDED PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 1

2 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 2 of 15 PageID #: 81 PLAINTIFF S FIRST AMENDED COMPLAINT Plaintiff Erchonia Corporation files its first amended complaint against Defendants Chromogenex US, Inc., Chromogenex Technologies, Ltd., James Lundin d/b/a Blue Diamond Body, Premier Med Spa, L.L.C. d/b/a Premier Med Spa & Weight Loss, Finer Touch Aesthetics, L.L.C. d/b/a The Finer Touch, Jan Bailey d/b/a I-Lipo Nac, Biofit Weight & Hormone Clinic, L.L.C., Absolute Dermatology & Medi-Spa, P.A., Wellsprings Dermaspa, L.L.C., Personique On The Spot, L.L.C., Robert Fernandez d/b/a Synergy Medical Age Management & Aesthetics, Athena Wellness Center, P.A., J Mayor d/b/a Voila Of Tomball, Azure Wellness, L.L.C. d/b/a Azure Wellness Group, Plaza Ob-Gyn Associates, P.A. d/b/a Binz Weight Loss Center, Simply Slender, L.L.C., Houston Plastic and Reconstructive Surgery, L.L.P., Permian Women s Center, P.A., The Women s Center Of The Permian Basin, P.A., Body Benefits, Inc., UBILC, L.L.C. d/b/a Universal Body Image and Laser Center and 2TZ Wellness Ventures, L.L.C. d/b/a Spa on the Square, and would show as follows. I. PARTIES 1. Plaintiff Erchonia Corporation ( Erchonia or Plaintiff ) is a Texas corporation doing business in Texas, with its principal place of business in McKinney, Texas. 2. Defendant Chromogenex US, Inc. ( Chromogenex US ) is a Michigan corporation doing business in Texas, with its principal place of business in Lewisville, Texas. Chromogenex US may be served through its registered agent: John D. Gatti, 500 Woodward Ave., Suite 2500, Detroit, Michigan Defendant Chromogenex Technologies, Ltd. ( Chromogenex Technologies ) is a United Kingdom limited partnership doing business in Texas, with its principal place of business in the United Kingdom. Chromogenex Technologies may be served through the Hague PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 2

3 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 3 of 15 PageID #: 82 Convention at Unit 1-2 Heol Rhosyn, Dafen Ind. Est., Llanelli, Carmarthenshire, South Wales, United Kingdom SA14 8QG. 4. Defendant James Lundin ( Lundin ) is an individual doing business in McKinney, Texas as Blue Diamond Body. Lundin may be served at 270 N. Redbud Blvd. #100, McKinney, Texas Defendant Premier Med Spa, L.L.C. d/b/a Premier Med Spa & Weight Loss ( Premier Med Spa ) is a Texas limited liability company doing business in Texas, with its principal place of business in Richardson, Texas. Premier Med Spa may be served through its registered agent: Lauren M. Armstrong, 2001 N. Collins Blvd., Suite 105, Richardson, Texas Defendant Finer Touch Aesthetics, L.L.C. d/b/a The Finer Touch ( Finer Touch ) is a Texas limited liability company doing business in Texas, with its principal place of business in Richardson, Texas. Finer Touch may be served through its registered agent: Carol Norton, 2821 E. President George Bush Hwy., Suite 400, Richardson, Texas Defendant Jan Bailey ( Bailey ) is an individual doing business in Lufkin, Texas as i-lipo Nac. Bailey may be served at 4100 S. Medford Dr., Suite 201, Lufkin, Texas Defendant Biofit Weight & Hormone Clinic, L.L.C. ( Biofit ) is a Texas limited liability company doing business in Texas, with its principal place of business in Abilene, Texas. Biofit may be served through its registered agent: Danny P. Osborne, 23 Hospital Dr., Suite 100, Abilene, Texas Defendant Absolute Dermatology & Medi-Spa, P.A. ( Absolute Dermatology ) is a Texas professional association doing business in Texas, with its principal place of business in PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 3

4 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 4 of 15 PageID #: 83 Cedar Park, Texas. Absolute Dermatology may be served through its registered agent: Lori Honeycutt, 1103 Cypress Creek Road, Suite 100, Cedar Park, Texas Defendant Wellsprings DermaSpa, L.L.C. ( Wellsprings ) is a Texas limited liability company doing business in Texas, with its principal place of business in Austin, Texas. Wellsprings may be served through its registered agent: Shannon M. Hicks, Jollyville Road, Suite 104, Austin, Texas Defendant Personique On The Spot, L.L.C. ( Personique ) is a Texas limited liability company doing business in Texas, with its principal place of business in Austin, Texas. Personique may be served through its manager: Mark Salisbury, 630 W. 34th Street, Suite 201, Austin, Texas Defendant Robert Fernandez ( Fernandez ) is an individual doing business in Montgomery, Texas as Synergy Medical Age Management & Aesthetics. Fernandez may be served at Hwy 105 W, Suite 125, Montgomery, Texas Defendant Athena Wellness Center, P.A. ( Athena Wellness ) is a Texas professional association doing business in Texas, with its principal place of business in The Woodlands, Texas. Athena Wellness may be served through its registered agent: Crystal Broussard, 8850 Six Pines Drive, Suite 270, The Woodlands, Texas Defendant J Mayor ( Mayor ) is an individual doing business in Tomball, Texas as Voila of Tomball. Mayor may be served at 401 W. Main Street, Tomball, Texas Defendant Azure Wellness, L.L.C. d/b/a Azure Wellness Group ( Azure Wellness ) is a Texas limited liability company doing business in Texas, with its principal place of business in Houston, Texas. Azure Wellness may be served through its registered agent: Julie Doshi, 929 Gessner, Suite 2450, Houston, Texas PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 4

5 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 5 of 15 PageID #: Defendant Plaza OB-Gyn Associates, P.A. d/b/a Binz Weight Loss Center ( Binz Weight Loss ) is a Texas professional association doing business in Texas, with its principal place of business in Houston, Texas. Binz Weight Loss may be served through its registered agent: Isam Balat, 1801 Binz, Suite 500, Houston, Texas Defendant Simply Slender, L.L.C. ( Simply Slender ) is a Texas limited liability company doing business in Texas, with its principal place of business in San Antonio, Texas. Simply Slender may be served through its registered agent: Michael Henry Martel, Stone Oak Parkway, Suite 106, San Antonio, Texas Defendant Houston Plastic and Reconstructive Surgery, L.L.P. ( Houston Plastic ) is a Texas limited liability partnership doing business in Texas, with its principal place of business in Webster, Texas. Houston Plastic may be served through its partner: Clayton Moliver, 575 E. Medical Center Boulevard, Webster, Texas Defendant Permian Women's Center, P.A. ( Permian Women s ) is a Texas professional association doing business in Texas, with its principal place of business in Odessa, Texas. Permian Women s may be served through its registered agent: Pill G. Raja, 405 N. Tom Green Ave., Odessa, Texas Defendant The Women's Center of the Permian Basin, P.A. ( The Women s Center ) is a Texas professional association doing business in Texas, with its principal place of business in Odessa, Texas. The Women s Center may be served through its registered agent: John R. Molland, 601 N. Tom Green Ave., Odessa, Texas Defendant Body Benefits, Inc. ( Body Benefits ) is a Texas corporation doing business in Texas, with its principal place of business in The Woodlands, Texas. Body Benefits PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 5

6 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 6 of 15 PageID #: 85 may be served through its registered agent: Sherry Summers-Ball, 4840 W. Panther Creek, Suite 100, The Woodlands, Texas Defendant UBILC, L.L.C. d/b/a Universal Body Image and Laser Center ( Universal Body ) is a Texas limited liability company doing business in Texas, with its principal place of business in Addison, Texas. Universal Body may be served through its registered agent: Kelsey Sanderson, 4951 Airport Parkway, Suite 535, Addison, Texas Defendant 2TZ Wellness Ventures, L.L.C. d/b/a Spa on the Square ( Spa on the Square ) is a Texas limited liability company doing business in Texas, with its principal place of business in Southlake, Texas. Spa on the Square may be served through its registered agent: Jeffery C. Blue, 1200 Barlow Bend, Southlake, Texas II. JURISDICTION AND VENUE 24. This matter is a claim for patent infringement. The Court has subject matter jurisdiction pursuant to 28 U.S.C The Court possesses personal jurisdiction over Defendants Chromogenex US and Chromogenex Technologies (collectively the Chromogenex Defendants ) because they have minimum contacts within the State of Texas, they have purposefully availed themselves of the privileges of conducting business in the State of Texas, they have sought protection and benefit from the laws of the State of Texas, they regularly conduct business within the State of Texas, Plaintiff s cause of action arises directly from their business contacts and other activities in the State of Texas, and Chromogenex US s principal place of business is in Texas. Upon information and belief, Chromogenex Technologies sells the infringing devices accused herein to or through Chromogenex US s operations in the State of Texas, and these and other activities of PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 6

7 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 7 of 15 PageID #: 86 Chromogenex Technologies constitute contributory and/or inducing infringement within the State of Texas. 26. The Chromogenex Defendants, directly and/or through intermediaries, make, distribute, import, offer for sale, sell, advertise, and/or use, the accused products identified herein in the State of Texas. The Chromogenex Defendants have committed patent infringement in the State of Texas, at least by inducing others to commit acts of patent infringement in the State of Texas. The Chromogenex Defendants solicit customers in the State of Texas. The Chromogenex Defendants have paying customers who are residents of the State of Texas and who purchase and/or use the Chromogenex Defendants products and services in the State of Texas which form the basis of this action. 27. The Court possesses personal jurisdiction over Defendants Lundin, Premier Med Spa, Finer Touch, Bailey, Biofit, Absolute Dermatology, Wellsprings, Personique, Fernandez, Athena Wellness, Mayor, Azure Wellness, Binz Weight Loss, Simply Slender, Houston Plastic, Permian Women s, The Women s Center, Body Benefits, Universal Body and Spa on the Square (collectively the Wellness Defendants ) because they are all residents of Texas and/or have their principal places of business in Texas. 28. Venue is proper in this District pursuant to 28 U.S.C and 1400 because one or more Defendants is a resident of this District or has its principal place of business in this District, one or more Defendants have purposefully availed themselves of the privileges of conducting business in this District, one or more Defendants regularly conduct business within this District, and Plaintiff s causes of action arise directly from Defendants business contacts and other activities in this District. PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 7

8 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 8 of 15 PageID #: More specifically, one or more Defendants, directly and/or through intermediaries, provide services that comprise, in part, performance of the patented methods and have thus committed patent infringement in this District, have induced others to commit infringement in this District, and/or have contributed to patent infringement in this District. Further, one or more Defendants solicit customers in this District and/or have paying customers who are residents of this District and who purchase and/or use Defendants patent infringing services in this District. III. FACTS 30. Erchonia is in the business of manufacturing and selling therapeutic medical devices. Erchonia s best known products are its low level laser products. 31. Erchonia is an innovator in the field of low level laser products and the use of low level laser treatment for therapeutic purposes. Erchonia is the holder of numerous patents related to its low level laser products and for methods of using low level lasers. 32. Among the products manufactured and sold by Erchonia are its low level laser products used for body contouring. Among Erchonia s products is its Zerona device, which was the first device approved by the FDA for non-invasive low level laser body contouring. 33. Erchonia has several patents that relate to its Zerona device and the methods used in treating patients using its Zerona device. Among these patents are U.S. Patent No. 6,605,079 (the 079 Patent ) issued August 12, 2003 for a Method for Performing Lipoplasty Using External Laser Radiation, and U.S. Patent No. 8,932,338 (the 338 Patent ) issued January 13, 2015 for a Non-Invasive Method for Site-Specific Fat Reduction. A true and correct copy of the 079 Patent is attached hereto as Exhibit A, and a true and correct copy of the 338 Patent is attached hereto as Exhibit B. PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 8

9 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 9 of 15 PageID #: Chromogenex Technologies manufactures and sells a product known as the i-lipo device. The i-lipo device uses low level lasers for body contouring and fat reduction. The i- Lipo device is a competitor to Erchonia s Zerona device. 35. Chromogenex Technologies currently offers various models of the i-lipo device. These models include: i-lipo Touch; i-lipo Ultra; and the i-lipoxcell. Each of these devices is specifically designed and configured to emit red laser energy for external application to a patient for reduction of targeted body fat in accordance with patented methods of Erchonia s patents. 36. Chromogenex Technologies advertises its products directly to potential purchasers in the United States, including through its websites located at and On these websites, Chromogenex Technologies advertises for clinics where patients can get treated using its devices in the United States. One or both of the websites specifically show clinics using its devices, including clinics throughout Texas, as well as many other locations in the United States. 37. In May 2011, Chromogenex Technologies submitted a Traditional 510(k) Application with the FDA for its i-lipo System. The filing listed the Erchonia ML Scanner - K as a Predicate Device and stated The i-lipo TM is substantially equivalent to the predicates with respect to intended use and technological characteristics. 38. In April 2103, at the 2013 South Beach Symposium in Miami, Florida, an officer of Erchonia met a manager of Chromogenex Technologies and personally advised him that Erchonia had a patent and another patent pending for the methods for which Chromogenex Technologies was selling its device. 39. Nevertheless, in September 2014, Chromogenex Technologies launched the sale of its latest version of the i-lipo laser, the i-lipoxcell, in Ft. Lauderdale, Florida. PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 9

10 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 10 of 15 PageID #: On June 22, 2015, Erchonia sent a letter to Chromogenex Technologies, advising Chromogenex Technologies that it was infringing Erchonia s 338 Patent. 41. Upon information and belief, Chromogenex US is a subsidiary or affiliate of Chromogenex Technologies, is located in Texas, and is a distributor of the i-lipo devices in the United States, and particularly including Texas. 42. As described on the and websites, the use of the i-lipo device causes fat reduction in a patient. The i-lipo device does this by using low level red lasers. In addition, the device does this without causing any effect upon any neighboring cells. 43. The Wellness Defendants all operate clinics or spas in the State of Texas where they offer various health related services, including body contouring and fat reduction services. Upon information and belief, including advertising on their own websites, all of the Wellness Defendants use one or more of the Chromogenex i-lipo devices at their locations in the State of Texas to provide body contouring for patients. 44. Erchonia is the owner of the 079 Patent and the 338 Patent, and has never licensed or authorized the Chromogenex Defendants or the Wellness Defendants to use the methods covered by the 079 Patent and the 338 Patent. 45. The i-lipo devices are specifically designed and configured for use in reduction of targeted fat by the patented methods of the 079 Patent and the 338 Patent. The i-lipo devices have not been marketed or sold for any other purpose. PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 10

11 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 11 of 15 PageID #: 90 IV. CAUSES OF ACTION COUNT ONE Contributory Patent Infringement of the 338 Patent (against the Chromogenex Defendants) 46. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 45, inclusive, of this Complaint as fully set forth herein. 47. The required method of use of an i-lipo device for its intended purpose of external application of laser energy in association with the reduction of fat infringes one or more of the claims of the 338 Patent. 48. The i-lipo devices have no non-infringing commercial use, and have not been marketed or sold for any other purpose. 49. The Chromogenex Defendants have had actual notice of the published application for the 338 Patent at least since being personally informed of it covering the use of their product at the 11 th Annual South Beach Symposium in April of The Chromogenex Defendants have had actual notice of their infringement of the 338 Patent at least since being advised by letter dated June 22, The Chromogenex Defendants have infringed the 338 Patent by intentionally and knowingly selling and/or distributing the i-lipo devices to doctors and clinics for use in accordance with the patented methods of the 338 Patent, which was known to the Chromogenex Defendants. 52. Doctors and clinics have performed the patented methods of the 338 Patent using the i-lipo devices purchased from Chromogenex. 53. Such actions by the Chromogenex Defendants have caused, and unless enjoined, will continue to cause harm and damage to Erchonia. Accordingly, Erchonia is entitled to damages and injunctive relief. PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 11

12 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 12 of 15 PageID #: 91 COUNT TWO Induced Patent Infringement of the 338 Patent (against the Chromogenex Defendants) 54. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 53, inclusive, of this Complaint as fully set forth herein. 55. The Chromogenex Defendants have had actual notice of the published application for the 338 Patent at least since being personally informed of it covering the use of their product at the 11 th Annual South Beach Symposium in April of The Chromogenex Defendants have had actual notice of their infringement of the 338 Patent at least since being advised by letter dated June 22, The Chromogenex Defendants have induced the infringement of the 338 Patent by knowingly encouraging and instructing doctors and clinics to use, and to continue to use the i- Lipo devices in accordance with the patented methods of the 338 Patent, which was known to the Chromogenex Defendants. 58. Such actions by the Chromogenex Defendants have caused, and unless enjoined, will continue to cause harm and damage to Erchonia. Accordingly, Erchonia is entitled to damages and injunctive relief. COUNT THREE Patent Infringement of the 338 Patent (against the Wellness Defendants) 59. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 58, inclusive, of this Complaint as fully set forth herein. 60. Upon information and belief, the Wellness Defendants provide various services to their patients including fat reduction services using the i-lipo devices by non-invasive methods. PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 12

13 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 13 of 15 PageID #: The non-invasive fat reduction services using the i-lipo devices provided by the Wellness Defendants have been performed, and continue to be performed, by one of more of the patented methods of the 338 Patent, and thus constitute infringement of the 338 Patent. 62. Such actions by the Wellness Defendants have caused, and unless enjoined, will continue to cause harm and damage to Erchonia. Accordingly, Erchonia is entitled to damages and injunctive relief. COUNT FOUR Patent Infringement of the 079 Patent (against Finer Touch, Personique, Houston Plastic and Permian Women s) 63. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 62, inclusive, of this Complaint as fully set forth herein. 64. Upon information and belief, certain of the Wellness Defendants, namely Finer Touch, Personique, Houston Plastic and Permian Women s, provide various services to their patients including fat reduction services using the i-lipo devices in conjunction with lipoplasty. 65. The fat reduction services using the i-lipo devices in conjunction with lipoplasty provided by Finer Touch, Personique, Houston Plastic and Permian Women s have been performed, and continue to be performed, by one of more of the patented methods of the 079 Patent, and thus constitute infringement of the 079 Patent. 66. Such actions by Finer Touch, Personique, Houston Plastic and Permian Women s have caused, and unless enjoined, will continue to cause harm and damage to Erchonia. Accordingly, Erchonia is entitled to damages and injunctive relief. V. JURY DEMAND 67. Erchonia requests a trial by jury of all claims. PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 13

14 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 14 of 15 PageID #: 93 VI. PRAYER FOR RELIEF Erchonia prays that the Court finds in its favor and against Defendants and that the Court grants Erchonia the following relief: A. An adjudication that one or more claims of the 338 Patent and/or the 079 Patent has been directly or indirectly infringed, either literally or under the doctrine of equivalents, by some or all of the Defendants; B. A preliminary and permanent injunction under 35 U.S.C. 283 enjoining and restraining Defendants, their respective officers, directors, members, managers, employees, agents, representatives and all persons in active concert with them from infringing upon any claims of the 338 Patent and/or the 079 Patent or from inducing or assisting any third party to infringe upon the 338 Patent and/or the 079 Patent; C. Erchonia be awarded damages in the amount to be proven at trial, but in no event less than a reasonable royalty, together with pre-judgment and post-judgment interest; D. The Court finds Defendants infringement to be willful, including that Defendants acted to infringe the 338 Patent and/or the 079 Patent despite an objectively high likelihood that its actions constitute infringement of a valid patent and, accordingly, aware enhanced damages, including treble damages, under 35 U.S.C E. The Court finds this to be an exceptional case, and awards Erchonia its attorneys fees incurred in this matter, pursuant to 35 U.S.C. 284; F. The Court awards Erchonia is costs incurred in this action; and PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 14

15 Case 2:15-cv RWS Document 6 Filed 10/21/15 Page 15 of 15 PageID #: 94 G. The Court awards such other relief as it deems just and proper. Dated: October 21, Respectfully submitted, SCHEEF & STONE, L.L.P. \s\ Eric C. Wood John G. Fischer Texas Bar No john.fischer@solidcounsel.com Bryan Haynes Texas Bar No bryan.haynes@solidcounsel.com 500 N. Akard, Suite 2700 Dallas, Texas Phone: (214) Fax: (214) Eric C. Wood Texas Bar No eric.wood@solidcounsel.com 2600 Network Blvd., Suite 400 Frisco, TX Phone: (214) Fax: (214) ATTORNEYS FOR PLAINTIFF ERCHONIA CORPORATION PLAINTIFF S FIRST AMENDED COMPLAINT PAGE 15