Free Motion to Substitute Party - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE IOVATE HEALTH SCIENCES U.S.A., INC., et al., Plaintiffs, v. WELLNX LIFE SCIENCES INC., et al., Defendants. : : : : : : : : : : :

C.A. No. 07-286-JJF

MOTION TO SUBSTITUTE PLAINTIFF PURSUANT TO FED. R. CIV. P. 25(c) 1. Plaintiffs Iovate Health Sciences U.S.A., Inc. and Iovate T&P, Inc. (collectively

"Iovate" or "Plaintiffs"), hereby respectfully move, pursuant to Federal Rule of Civil Procedure 25(c), for leave to substitute "Iovate Health Sciences, Inc." ­ the current owner by assignment of United States Patent No. 5,973,199 ("the '199 patent") ­ for "Iovate Health Sciences U.S.A., Inc." as a party plaintiff in this action. 2. This patent infringement action was filed on May 24, 2007. The original

Complaint accurately alleged that then-plaintiff Flamma S.p.A. ("Flamma") was the owner and assignee of the '199 patent. D.I. 1 at ¶ 19. Flamma subsequently transferred its interest in the `199 patent to "Iovate Health Sciences, Inc." See Exh. A. 3. Plaintiffs intended to include the transfer of interest in the '199 patent as one of

the changes reflected in the First Amended Complaint. See D.I. 35 (Plaintiffs' Unopposed Motion for Leave to File First Amended Complaint).1 However, Plaintiffs inadvertently (and incorrectly) alleged that "Iovate Health Sciences U.S.A., Inc." (instead of "Iovate Health

Plaintiffs removed Slimquick Laboratories as a defendant, removed Flamma S.p.A. and Use Techno Corporation as plaintiffs, removed its allegation of infringement under U.S. Patent No. 6,716,459, and added a count of infringement under U.S. Patent No. 6,277,396.

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Sciences, Inc.") is the owner through assignment of the '199 patent. See First Amended Complaint (D.I. 40) at ¶ 16. 4. Upon discovering this apparent typographical error in the First Amended

Complaint, Plaintiffs informed Defendants and requested their consent to file a Second Amended Complaint which corrected the name of the entity which now owned the '199 patent.2 5. Defendants refused to consent to the proposed amendment unless Plaintiffs

agreed to meet several conditions, including dropping all claims against the Individual Defendants, Bradley and Derek Woodgate. That condition was unacceptable to Plaintiffs, and therefore Plaintiffs seek leave of court to substitute "Iovate Health Sciences, Inc." for "Iovate Health Sciences U.S.A., Inc." as a party plaintiff in this action. 6. lawsuit: Transfer of Interest. If an interest is transferred, the action may be continued by or against the original party, unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party. . . . Fed. R. Civ. P. 25(c). The rule is "designed to allow an action to continue unabated when an interest in a lawsuit changes hands," rather than requiring the initiation of an entirely new lawsuit. General Battery Corp. v. Globe-Union, Inc., 100 F.R.D. 258, 261 (D. Del. 1982). Substitution of parties under Rule 25(c) is generally within the sound discretion of the trial court. Luxliner P.L. Export, Co. v. RDI/Luxliner, Inc., 13 F.3d 69, 72 (3d Cir. 1993). Rule 25(c) permits substitutions when, as here, an interest is transferred during a

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Plaintiffs also wanted to use the opportunity to clean up a less consequential pleading error, by deleting all references to original plaintiff "Iovate Health Sciences International, Inc." The First Amended Complaint removed all allegations of infringement under U.S. Patent No. 6,716,459, and therefore that entity is no longer asserting any claims in the action.

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7.

Under these circumstances, it is clearly a better use of the court's and the parties'

resources to permit the substitution, rather than requiring the initiation of an entirely new lawsuit. The '199 patent has been in the case from its inception. The parties' first sets of interrogatories and document requests (recently served on March 19, 2008 and March 24; 2008; see D.I. 54, 55) cover the '199 patent. Thus, the proposed substitution will not affect the scope of discovery or the case schedule, and there is no prejudice to Defendants. 8. Indeed, Defendants did not object to the proposed substitution on grounds of

prejudice or delay. Defendants simply withheld their consent as a "bargaining chip" to try to force Plaintiffs to dismiss the Individual Defendants from the case. CONCLUSION 10. For all of the reasons set forth herein, Iovate respectfully requests that the Court

enter an order in the form attached hereto, substituting "Iovate Health Sciences, Inc." for "Iovate Health Sciences U.S.A., Inc." as a party plaintiff in this action, and amending the case caption accordingly.3 YOUNG CONAWAY STARGATT & TAYLOR LLP

/s/ Karen L. Pascale
April 8, 2008 __________________________________________ Josy W. Ingersoll (No. 1088) John W. Shaw (No. 3362) Karen L. Pascale (No. 2903) [[email protected]] Karen E. Keller (No. 4489) The Brandywine Building 1000 West St., 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: 302-571-6600 Attorneys for Plaintiffs

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If the Court prefers, Plaintiffs stand ready to file a Second Amended Complaint in the form attached hereto as Exhibit B. A redline copy showing the changes from the First Amended Complaint (by striking through deletions and double-underlining additions) is also attached, as Exhibit C.

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OF COUNSEL: Richard L. DeLucia Howard J. Shire Jerry Canada KENYON & KENYON LLP One Broadway New York, NY 10004 (212) 425-7200

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CERTIFICATE OF SERVICE I, Karen L. Pascale, Esq., hereby certify that on April 8, 2008, the foregoing document was electronically filed with the Clerk of the Court using CM/ECF, which will send notification that such filing is available for viewing and downloading to the following counsel of record: Rodger D. Smith, II, Esq. [[email protected]] James W. Parrett, Jr., Esq. [[email protected]] MORRIS NICHOLS ARSHT & TUNNELL LLP 1201 N. Market Street Wilmington, DE 19899 Additionally, I hereby certify that the foregoing document was served on counsel of record as indicated below: By Hand Delivery and E-Mail Mary B. Graham, Esq. [[email protected]] Rodger D. Smith, II, Esq. [[email protected]] James W. Parrett, Jr., Esq. [[email protected]] MORRIS NICHOLS ARSHT & TUNNELL LLP 1201 N. Market Street Wilmington, DE 19899 By E-Mail Roger Colaizzi, Esq. [[email protected]] Jeffrey A. Dunn, Esq. [[email protected]] VENABLE, LLP 575 7th Street, NW Washington, DC 2004-1601 Tamany Vinson Bentz, Esq. [[email protected]] VENABLE, LLP 2049 Century Park East Suite 2100 Los Angeles, CA 90067

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YOUNG CONAWAY STARGATT & TAYLOR LLP

/s/ Karen L. Pascale
April 8, 2008 __________________________________________ Josy W. Ingersoll (No. 1088) John W. Shaw (No. 3362) Karen L. Pascale (No. 2903) [[email protected]] Karen E. Keller (No. 4489) The Brandywine Building 1000 West St., 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: 302-571-6600 Attorneys for Plaintiffs

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EXHIBIT A

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EXHIBIT B

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE IOVATE HEALTH SCIENCES, INC., and IOVATE T & P, INC., Plaintiffs, v. WELLNX LIFE SCIENCES INC (d/b/a NV Inc.), NXCARE INC., NXLABS INC., BIOGENETIX, DEREK WOODGATE, and BRADLEY WOODGATE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 07-286-JJF JURY TRIAL DEMANDED

SECOND AMENDED COMPLAINT Plaintiffs Iovate Health Sciences, Inc., and Iovate T & P, Inc. (collectively "Iovate" or "Plaintiffs"), hereby allege for their Complaint against WellNx Life Sciences Inc. ("WellNx") (d/b/a NV Inc.), NxCare Inc. ("NxCare"), NxLabs Inc. ("NxLabs"), Biogenetix, Derek Woodgate and Bradley Woodgate (collectively "Defendants"), on personal knowledge as to their own activities and on information and belief as to all other matters, as follows: PARTIES 1. Iovate Health Sciences, Inc. is a corporation organized and existing under the

laws of Ontario, Canada, with its principal place of business at 381 North Service Road West, Oakville, ON, Canada, L6M 0H4. 2. Iovate T & P, Inc. is a corporation organized and existing under the laws of

Ontario, Canada, with its principal place of business at 381 North Service Road West, Oakville, ON, Canada, L6M 0H4.

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3.

Upon information and belief, Defendant WellNx is a corporation organized and

existing under the laws of Ontario, Canada, with a place of business at 1680 Tech Avenue, Unit 1, Mississauga, ON, Canada, L4W 5S9, and/or 218 Silvercreek Parkway, Guelph, ON, Canada. 4. Upon information and belief, Defendant NxCare is a corporation organized and

existing under the laws of Ontario, Canada, with a place of business at 1680 Tech Avenue, Unit 1, Mississauga, ON, Canada, L4W 5S9. 5. Upon information and belief, Defendant NxLabs is a corporation organized and

existing under the laws of Ontario, Canada, with a place of business at 1680 Tech Avenue, Unit 1, Mississauga, ON, Canada, L4W 5S9. 6. Upon information and belief, Defendant Biogenetix is a corporation organized

and existing under the laws of Ontario, Canada, with a place of business at 1680 Tech Avenue, Unit 1, Mississauga, ON, Canada, L4W 5S9. 7. Upon information and belief, Defendants Derek Woodgate and Bradley Woodgate

are individuals and the founders of WellNx, (and its predecessor entities) NxCare, NxLabs, Biogenetix, and are officers, shareholders, and/or directors of WellNx, NxCare, NxLabs, Biogenetix, and personally direct and control the activities herein complained. 8. Upon information and belief, Defendant Derek Woodgate resides at 1594 Waldie

Avenue, Milton, ON, Canada, L9T 5K8. 9. Upon information and belief, Defendant Bradley Woodgate resides at 803-373

Front Street West, Toronto, ON, Canada, M5V-3R7.

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JURISDICTION AND VENUE 10. This is an action for patent infringement arising under the patent laws of the

United States, Title 35 of the United States Code. Accordingly, this Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338. 11. and 1400. 12. Upon information and belief, Defendant WellNx maintains an office at 1201 N. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1331, 1391(b), 1391(d)

Orange Street, Suite 741, Wilmington, DE, 19801. 13. Upon information and belief, Defendant NxCare maintains an office at 874

Walker Rd., Dover, DE 19904. GENERAL ALLEGATIONS 14. On October 26, 1999, United States Patent No. 5,973,199 ("the '199 patent"), titled "Hydrosoluble Organic Salts of Creatine," was duly and legally issued by the United States Patent and Trademark Office. A true and correct copy of the '199 patent is attached as Exhibit A of this Complaint. 15. Iovate Health Sciences, Inc. is the owner through assignment of the '199 patent. 16. On October 19, 1999, United States Patent No. 5,968,900 ("the '900 patent"), titled "Increasing Creatine and Glycogen Concentration in Muscle," was duly issued by the United States Patent and Trademark Office. A true and correct copy of the '900 patent is attached as Exhibit B of this Complaint. 17. Iovate T & P is the owner of all rights, title and interest in and to the '900 patent. 18. On August 21, 2001, United States Patent No. 6,277,396 ("the '396 patent"), titled "Dietary Supplement Containing a Thermogenic Substance and an Adrenal Support Substance,"

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was duly and legally issued by the United States Patent and Trademark Office. A true and correct copy of the '396 patent is attached as Exhibit C of this Complaint. 19. Iovate T & P is the owner through assignment of the '396 patent. 20. Upon information and belief, Defendants have made, used, offered for sale, sold and/or imported nutritional supplements, including, Vaso, Vaso XP, Hyper Growth, Lean Hyper Growth, Muscle Expansion Pack, Pump System, Creatine-D2T, REVxp Hardcore, Methyl Ripped, Ripped System and/or NV throughout the U.S. and in this judicial district. 21. The supplement information for Vaso lists "Tri-creatine malate." 22. The supplement information for Vaso XP lists "Tri-creatine malate." 23. The supplement information for Hypergrowth lists 10 grams of creatine derivatives (micronized creatine monohydrate, tricreatine malate and buffered creatine), and "InsuTech." "Each serving of Hypergrowth delivers 10g of CreaPlex3 . . . for maximum creatine absorbtion and retention." 24. The supplement information for Lean Hypergrowth lists 10 grams of creatine derivatives (micronized creatine monohydrate, tricreatine malate and buffered creatine) and "InsuTech." 25. The supplement information for Muscle Expansion Pack (Anavol, Vaso) lists "Tricreatine malate." 26. The supplement information for Pump System (Vaso, Plasmavol, NO Surge) lists "Tri-creatine malate." 27. The product label for Creatine-D2T lists 4000 mg of Creatine derivatives (Creatine Ethyl Ester, Creatine AKG, and Creatine Decanoate) per serving, and an "Insulin Signaling Complex".

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28. The supplement information for REVxp Hardcore lists caffeine anhydrous, 70 % total catechins, ginsing, and 4-hydroxyisoleusine (from fenugreek)(seed). 29. The supplement information for Methyl Ripped lists di-caffeine alpha ketoglutarate, di-caffeine malate, esterified green tea extract (standardized for 45% 45% Epigallocatechin Gallate (EGCG) Ester, 2% Epicatechin Gallate (ECG) Ester, 2% Gallocatechin Gallate (GCG) Ester, 1% Catechin Gallate (CG) Ester), Gugglesterones E&Z HCl, and Ashwagandha. 30. The supplement information for Ripped System (Methyl Ripped, Methyl Dry) lists di-caffeine alpha ketoglutarate, di-caffeine malate, esterified green tea extract (standardized for 45% 45% Epigallocatechin Gallate (EGCG) Ester, 2% Epicatechin Gallate (ECG) Ester, 2% Gallocatechin Gallate (GCG) Ester, 1% Catechin Gallate (CG) Ester), Gugglesterones E&Z HCl, and Ashwagandha. 31. The supplement information for NV lists Green Tea Extract (Leaf)(Standardized for polyphenols and Epigallocatechin Gallate (EGCG)), Panax Ginseng Extract, and Alpha-Lipoic Acid. FIRST CAUSE OF ACTION (Infringement of the '199 Patent) 32. Plaintiffs repeat and re-allege the allegations of paragraphs 1-31 of the Complaint

as if set forth herein. 33. 34. By their actions, Defendants have infringed and are infringing the '199 patent. Upon information and belief, the infringement by Defendants has been and

continues to be willful. 35. As a result of Defendants' acts of infringement, Plaintiffs have suffered and will

continue to suffer damages in an amount to be proved at trial.

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SECOND CAUSE OF ACTION (Infringement of the '900 Patent) 36. Plaintiffs repeat and re-allege the allegations of paragraphs 1-35 of the Complaint

as if set forth herein. 37. 38. By their actions, Defendants infringed and are infringing the '900 patent. Upon information and belief, the infringement by Defendants has been and

continues to be willful. 39. As a result of Defendants' acts of infringement, Plaintiffs have suffered and will

continue to suffer damages in an amount to be proved at trial. THIRD CAUSE OF ACTION (Infringement of the '396 Patent) 40. Plaintiffs repeat and re-allege the allegations of paragraphs 1-39 of the Complaint

as if set forth herein. 41. 42. By their actions, Defendants infringed and are infringing the '396 patent. Upon information and belief, the infringement by Defendants has been and

continues to be willful. 43. As a result of Defendants' acts of infringement, Plaintiffs have suffered and will

continue to suffer damages in an amount to be proved at trial. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for entry of judgment against each Defendant as follows: A. The Defendants infringe the '199, '900 and '396 patents by their making, using,

offering for sale, selling and/or importing nutritional supplements, including Vaso and/or Vaso XP, Hyper Growth, Lean Hyper Growth, Muscle Expansion Pack, Pump System, Creatine-D2T, REVxp Hardcore, Methyl Ripped, Ripped System and NV;

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B. C.

That Defendants' infringement of the '199, '900 and '396 patents is willful; That Defendants, their officers, directors, affiliates, agents, servants, employees

and attorneys, and all those persons acting in privity or in concert with any of them, be preliminarily and permanently enjoining from infringement of the '199, '900 and '396 patents; D. That Plaintiffs be awarded their damages for infringement of the '199, '900 and

'396 patents, and that the damages be trebled; E. That this case be declared to be exceptional in favor of Plaintiffs under 35 U.S.C.

§ 285, and that Plaintiffs be awarded their costs, attorneys' fees, and other expenses incurred in connection with this action; F. That Plaintiffs be awarded such other and further relief as may be appropriate. DEMAND FOR JURY TRIAL Plaintiffs demand a trial by jury. YOUNG CONAWAY STARGATT & TAYLOR LLP Dated: Mayl ____, 2008 __________________________________________ Josy W. Ingersoll (No. 1088) John W. Shaw (No. 3362) Karen L. Pascale (No. 2903) Karen E. Keller (No. 4489) The Brandywine Building 1000 West St., 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: 302-571-6600 Attorneys for Plaintiffs

OF COUNSEL: Richard L. DeLucia Howard J. Shire Jerry Canada KENYON & KENYON LLP One Broadway New York, NY 10004 (212) 425-7200 7

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EXHIBIT C

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE IOVATE HEALTH SCIENCES, INC., IOVATE HEALTH SCIENCES INTERNATIONAL, INC., and IOVATE T & P, INC., Plaintiffs, v. WELLNX LIFE SCIENCES INC (d/b/a NV Inc.), NXCARE INC., NXLABS INC., BIOGENETIX, DEREK WOODGATE, and BRADLEY WOODGATE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 07-286-JJF JURY TRIAL DEMANDED

FIRSTSECOND AMENDED COMPLAINT Plaintiffs Iovate Health Sciences U.S.A., Inc. ("Iovate U.S.A."), Iovate Health Sciences International, Inc. ("Iovate International"), Inc., and Iovate T & P, Inc. ("Iovate T & P") (collectively "Iovate" or "Plaintiffs"), hereby allege for their Complaint against WellNx Life Sciences Inc. ("WellNx") (d/b/a NV Inc.), NxCare Inc. ("NxCare"), NxLabs Inc. ("NxLabs"), Biogenetix, Derek Woodgate and Bradley Woodgate (collectively "Defendants"), on personal knowledge as to their own activities and on information and belief as to all other matters, as follows: PARTIES 1. Iovate U.S.A. is a corporation organized and existing under the laws of the State

of Delaware, with its principal place of business at 3880 Jeffrey Boulevard, Blasdell, New York, NY, 14129.

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1.

2. Iovate InternationalHealth Sciences, Inc. is a corporation organized and

existing under the laws of Ontario, Canada, with its principal place of business at 381 North Service Road West, Oakville, ON, Canada, L6M 0H4. 2. 3. Iovate T & P, Inc. is a corporation organized and existing under the laws of

Ontario, Canada, with its principal place of business at 381 North Service Road West, Oakville, ON, Canada, L6M 0H4. 3. 4. Upon information and belief, Defendant WellNx is a corporation organized and

existing under the laws of Ontario, Canada, with a place of business at 1680 Tech Avenue, Unit 1, Mississauga, ON, Canada, L4W 5S9, and/or 218 Silvercreek Parkway, Guelph, ON, Canada. 4. 5. Upon information and belief, Defendant NxCare is a corporation organized and

existing under the laws of Ontario, Canada, with a place of business at 1680 Tech Avenue, Unit 1, Mississauga, ON, Canada, L4W 5S9. 5. 6. Upon information and belief, Defendant NxLabs is a corporation organized and

existing under the laws of Ontario, Canada, with a place of business at 1680 Tech Avenue, Unit 1, Mississauga, ON, Canada, L4W 5S9. 6. 7. Upon information and belief, Defendant Biogenetix is a corporation organized

and existing under the laws of Ontario, Canada, with a place of business at 1680 Tech Avenue, Unit 1, Mississauga, ON, Canada, L4W 5S9. 7. 8. Upon information and belief, Defendants Derek Woodgate and Bradley

Woodgate are individuals and the founders of WellNx, (and its predecessor entities) NxCare, NxLabs, Biogenetix, and are officers, shareholders, and/or directors of WellNx, NxCare, NxLabs, Biogenetix, and personally direct and control the activities herein complained.

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8.

9. Upon information and belief, Defendant Derek Woodgate resides at 1594

Waldie Avenue, Milton, ON, Canada, L9T 5K8. 9. 10. Upon information and belief, Defendant Bradley Woodgate resides at 803-373

Front Street West, Toronto, ON, Canada, M5V-3R7. JURISDICTION AND VENUE 10. 11. This is an action for patent infringement arising under the patent laws of the

United States, Title 35 of the United States Code. Accordingly, this Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338. 11. and 1400. 12. 13. Upon information and belief, Defendant WellNx maintains an office at 1201 12. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1331, 1391(b), 1391(d)

N. Orange Street, Suite 741, Wilmington, DE, 19801. 13. 14. Upon information and belief, Defendant NxCare maintains an office at 874

Walker Rd., Dover, DE, 19904. GENERAL ALLEGATIONS 14. 15. On October 26, 1999, United States Patent No. 5,973,199 ("the '199 patent"), titled "Hydrosoluble Organic Salts of Creatine," was duly and legally issued by the United States Patent and Trademark Office. A true and correct copy of the '199 patent is attached as Exhibit A of this Complaint. 15. 16. Iovate Health Sciences U.S.A., Inc. is the owner through assignment of the '199 patent. 16. 17. On October 19, 1999, United States Patent No. 5,968,900 ("the '900 patent"), titled "Increasing Creatine and Glycogen Concentration in Muscle," was duly issued by the

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United States Patent and Trademark Office. A true and correct copy of the '900 patent is attached as Exhibit B of this Complaint. 17. 18. Iovate T & P is the owner of all rights, title and interest in and to the '900 patent.. 18. 19. On August 21, 2001, United States Patent No. 6,277,396 ("the '396 patent"), titled "Dietary Supplement Containing a Thermogenic Substance and an Adrenal Support Substance," was duly and legally issued by the United States Patent and Trademark Office. A true and correct copy of the '396 patent is attached as Exhibit C of this Complaint. 19. 20. Iovate T & P is the owner through assignment of the '396 patent. 20. 21. Upon information and belief, Defendants have made, used, offered for sale, sold and/or imported nutritional supplements, including, Vaso, Vaso XP, Hyper Growth, Lean Hyper Growth, Muscle Expansion Pack, Pump System, Creatine-D2T, REVxp Hardcore, Methyl Ripped, Ripped System and/or NV throughout the U.S. and in this judicial district. 21. 22. The supplement information for Vaso lists "Tri-creatine malate." 22. 23. The supplement information for Vaso XP lists "Tri-creatine malate." 23. 24. The supplement information for Hypergrowth lists 10 grams of creatine derivatives (micronized creatine monohydrate, tricreatine malate and buffered creatine), and "InsuTech." "Each serving of Hypergrowth delivers 10g of CreaPlex3 . . . for maximum creatine absorbtion and retention." 24. 25. The supplement information for Lean Hypergrowth lists 10 grams of creatine derivatives (micronized creatine monohydrate, tricreatine malate and buffered creatine) and "InsuTech."

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25. 26. The supplement information for Muscle Expansion Pack (Anavol, Vaso) lists "Tri-creatine malate." 26. 27. The supplement information for Pump System (Vaso, Plasmavol, NO Surge) lists "Tri-creatine malate." 27. 28. The product label for Creatine-D2T lists 4000 mg of Creatine derivatives (Creatine Ethyl Ester, Creatine AKG, and Creatine Decanoate) per serving, and an "Insulin Signaling Complex". 28. 29. The supplement information for REVxp Hardcore lists caffeine anhydrous, 70 % total catechins, ginsing, and 4-hydroxyisoleusine (from fenugreek)(seed). 29. 30. The supplement information for Methyl Ripped lists di-caffeine alpha ketoglutarate, di-caffeine malate, esterified green tea extract (standardized for 45% 45% Epigallocatechin Gallate (EGCG) Ester, 2% Epicatechin Gallate (ECG) Ester, 2% Gallocatechin Gallate (GCG) Ester, 1% Catechin Gallate (CG) Ester), Gugglesterones E&Z HCl, and Ashwagandha. 30. 31. The supplement information for Ripped System (Methyl Ripped, Methyl Dry) lists di-caffeine alpha ketoglutarate, di-caffeine malate, esterified green tea extract (standardized for 45% 45% Epigallocatechin Gallate (EGCG) Ester, 2% Epicatechin Gallate (ECG) Ester, 2% Gallocatechin Gallate (GCG) Ester, 1% Catechin Gallate (CG) Ester), Gugglesterones E&Z HCl, and Ashwagandha. 31. 32. The supplement information for NV lists Green Tea Extract (Leaf)(Standardized for polyphenols and Epigallocatechin Gallate (EGCG)), Panax Ginseng Extract, and AlphaLipoic Acid. FIRST CAUSE OF ACTION (Infringement of the '199 Patent)

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32.

33. Plaintiffs repeat and re-allege the allegations of paragraphs 1-3231 of the

Complaint as if set forth herein. 33. 34. 34. By their actions, Defendants have infringed and are infringing the '199 patent. 35. Upon information and belief, the infringement by Defendants has been and

continues to be willful. 35. 36. As a result of Defendants' acts of infringement, Plaintiffs have suffered and

will continue to suffer damages in an amount to be proved at trial. SECOND CAUSE OF ACTION (Infringement of the '900 Patent) 36. 37. Plaintiffs repeat and re-allege the allegations of paragraphs 1-3635 of the

Complaint as if set forth herein. 37. 38. 38. By their actions, Defendants infringed and are infringing the '900 patent. 39. Upon information and belief, the infringement by Defendants has been and

continues to be willful. 39. 40. As a result of Defendants' acts of infringement, Plaintiffs have suffered and

will continue to suffer damages in an amount to be proved at trial. THIRD CAUSE OF ACTION (Infringement of the '396 Patent) 40. 41. Plaintiffs repeat and re-allege the allegations of paragraphs 1-4039 of the

Complaint as if set forth herein. 41. 42. 42. By their actions, Defendants infringed and are infringing the '396 patent. 43. Upon information and belief, the infringement by Defendants has been and

continues to be willful.

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43.

44. As a result of Defendants' acts of infringement, Plaintiffs have suffered and

will continue to suffer damages in an amount to be proved at trial. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for entry of judgment against each Defendant as follows: A. The Defendants infringe the '199, '900 and '396 patents by their making, using,

offering for sale, selling and/or importing nutritional supplements, including Vaso and/or Vaso XP, Hyper Growth, Lean Hyper Growth, Muscle Expansion Pack, Pump System, Creatine-D2T, REVxp Hardcore, Methyl Ripped, Ripped System and NV; B. C. That Defendants' infringement of the '199, '900 and '396 patents is willful; That Defendants, their officers, directors, affiliates, agents, servants, employees

and attorneys, and all those persons acting in privity or in concert with any of them, be preliminarily and permanently enjoining from infringement of the '199, '900 and '396 patents; D. That Plaintiffs be awarded their damages for infringement of the '199, '900 and

'396 patents, and that the damages be trebled; E. That this case be declared to be exceptional in favor of Plaintiffs under 35 U.S.C.

§ 285, and that Plaintiffs be awarded their costs, attorneys' fees, and other expenses incurred in connection with this action; F. That Plaintiffs be awarded such other and further relief as may be appropriate. DEMAND FOR JURY TRIAL Plaintiffs demand a trial by jury.

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YOUNG CONAWAY STARGATT & TAYLOR LLP Dated: January 25,May ____, 2008 __________________________________________ Josy W. Ingersoll (No. 1088) John W. Shaw (No. 3362) Karen L. Pascale (No. 2903) Karen E. Keller (No. 4489) The Brandywine Building 1000 West St., 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: 302-571-6600 Attorneys for Plaintiffs

OF COUNSEL: Richard L. DeLucia Howard J. Shire Jerry Canada KENYON & KENYON LLP One Broadway New York, NY 10004 (212) 425-7200

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Document comparison done by Workshare DeltaView on Thursday, April 03, 2008 3:25:52 PM Input: Document 1 Document 2 Rendering set Legend: Insertion Deletion Moved from Moved to Style change Format change Moved deletion Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics: Count Insertions Deletions Moved from Moved to Style change Format changed Total changes 14 59 0 0 0 0 73 interwovenSite://WSDMS/DB02/6715971/1 interwovenSite://WSDMS/DB02/6715470/1 standard

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE IOVATE HEALTH SCIENCES U.S.A., INC., et al., Plaintiffs, v. WELLNX LIFE SCIENCES INC., et al., Defendants. : : : : : : : : : : :

C.A. No. 07-286-JJF

RULE 7.1.1 STATEMENT Pursuant to 7.1.1 of the Local Rules of the United States District Court for the District of Delaware, I hereby certify that counsel for Plaintiffs has made a reasonable effort to reach agreement with counsel for Defendants on the matters set forth in Plaintiffs' "Motion to Substitute Plaintiff Pursuant to Fed. R. Civ. P. 25(c)," and that the parties have not been able to reach agreement. YOUNG CONAWAY STARGATT & TAYLOR LLP

/s/ Karen L. Pascale
April 8, 2008 __________________________________________ Josy W. Ingersoll (No. 1088) John W. Shaw (No. 3362) Karen L. Pascale (No. 2903) [[email protected]] Karen E. Keller (No. 4489) The Brandywine Building 1000 West St., 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: 302-571-6600 Attorneys for Plaintiffs

OF COUNSEL: Richard L. DeLucia Howard J. Shire Jerry Canada KENYON & KENYON LLP One Broadway New York, NY 10004 (212) 425-7200
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE IOVATE HEALTH SCIENCES U.S.A., INC., et al., Plaintiffs, v. WELLNX LIFE SCIENCES INC., et al., Defendants. : : : : : : : : : : :

C.A. No. 07-286-JJF

NOTICE OF MOTION TO: Mary B. Graham, Esq. Rodger D. Smith, Esq. James W. Parrett, Jr., Esq. MORRIS, NICHOLS, ARSHT & TUNNELL LLP 1201 North Market Street P.O. Box 1347 Wilmington, DE 19899 (302) 658-9200 Roger A. Colaizzi, Esq. Jeffrey A. Dunn, Esq. VENABLE LLP 575 7th Street, NW Washington, DC 20004-1601 Tamany Vinson Bentz, Esq. VENABLE LLP 2049 Century Park East Suite 2100 Los Angeles, CA 90067

PLEASE TAKE NOTICE that Plaintiffs Iovate Health Sciences U.S.A., Inc. and Iovate T&P, Inc., will present their "Motion to Substitute Plaintiff Pursuant to Fed. R. Civ. P. 25(c)" to the Court on Friday, May 9, 2008 at 10:00 a.m., or as soon thereafter as is convenient to the Court.

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YOUNG CONAWAY STARGATT & TAYLOR LLP

/s/ Karen L. Pascale
April 8, 2008 __________________________________________ Josy W. Ingersoll (No. 1088) John W. Shaw (No. 3362) Karen L. Pascale (No. 2903) [[email protected]] Karen E. Keller (No. 4489) The Brandywine Building 1000 West St., 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: 302-571-6600 Attorneys for Plaintiffs

OF COUNSEL: Richard L. DeLucia Howard J. Shire Jerry Canada KENYON & KENYON LLP One Broadway New York, NY 10004 (212) 425-7200

2
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : : : : : : : : : :

IOVATE HEALTH SCIENCES U.S.A., INC., et al., Plaintiffs, v. WELLNX LIFE SCIENCES INC., et al., Defendants. ORDER

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At Wilmington this _____ day of _________________, 2008, having reviewed Plaintiffs' "Motion to Substitute Plaintiff Pursuant to Fed. R. Civ. P. 25(c)," and the papers submitted in connection therewith; and the oral argument (if any) of counsel for the respective parties; IT IS HEREBY ORDERED that: 1) Plaintiffs' Motion (D.I. ____) is GRANTED. "Iovate Health Sciences, Inc" is

hereby substituted for "Iovate Health Sciences, U.S.A., Inc." as a plaintiff in this action. 2) The full caption in this action shall now be as follows: ) ) ) ) ) ) ) ) ) ) ) )

IOVATE HEALTH SCIENCES, INC., and IOVATE T & P, INC., Plaintiffs, v. WELLNX LIFE SCIENCES INC (d/b/a NV Inc.), NXCARE INC., NXLABS INC., BIOGENETIX, DEREK WOODGATE, and BRADLEY WOODGATE, Defendants.

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________________________________ UNITED STATES DISTRICT JUDGE

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