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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE VYGON, Plaintiff, v. RYMED TECHNOLOGIES, INC. Defendant. Civil Action No. 08-172-GMS

DECLARATION OF MAXIM H. WALDBAUM IN SUPPORT OF VYGON'S OPPOSITION TO RYMED'S MOTION TO DISMISS OR TRANSFER I, Maxim H. Waldbaum, declare: 1. I am a partner of the firm Schiff Hardin LLP, attorneys for Plaintiff Vygon in the

above-captioned matter. I am admitted pro hac vice in this Court. I have actual knowledge of the facts set forth herein and, if called as a witness would competently testify thereto. 2. Upon information and belief, RyMed Technologies, Inc. ("RyMed") has not to

date advertised, promoted, marketed, sold or offered for sale the product known as the "InVision-Plus® NEUTRAL® with Modified Boot." Neither Vygon nor its counsel has seen a prototype or model of this product or evaluated it to determine whether it infringes upon any Vygon patent. 3. On October 31, 2007, RyMed sued Vygon and Laboratoires Pharmaceutiques

Vygon ("LPV") in the Middle District of Tennessee (the "Tennessee Action") and amended its complaint on March 25, 2008. See Exhibit A, attaching a true and correct copy of the First Amended Complaint in the Tennessee Action, without exhibits; Exhibit B, attaching a true and

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CERTIFICATE OF SERVICE I, Karen E. Keller, Esquire, hereby certify that on May 5, 2008, I caused to be electronically filed a true and correct copy of the foregoing document 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: Richard D. Kirk, Esquire The Bayard Firm 222 Delaware Avenue, Suite 900 Wilmington, DE 19899-5130 I further certify that on May 5, 2008, I caused a true and correct copy of the foregoing document to be served by e-mail and hand delivery on the above-listed counsel of record and on the following non-registered participants in the manner indicated: BY E-MAIL Scott Wales, Esquire Howrey LLP 525 Market Street, Suite 3600 San Francisco, CA 94105 [email protected] YOUNG CONAWAY STARGATT & TAYLOR, LLP

/s/ Karen E. Keller Josy W. Ingersoll (#1088) [email protected] John W. Shaw (#3362) [email protected] Adam W. Poff (#3990) [email protected] Karen E. Keller (#4489) [email protected] The Brandywine Building 1000 West Street, 17th Floor Wilmington, Delaware 19801 (302) 571-6600

DB02:6734752.1

067292.1001

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION ) ) RYMED TECHNOLOGIES, INC. ) ) Plaintiff, ) ) v. ) ) LABORATOIRES ) PHARMACEUTIQUES VYGON, AND ) VYGON ) ) Defendants. _____________________________________ ) )

Case No. 3-07-1077 Judge Trauger JURY TRIAL DEMANDED

FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT REGARDING NON-INFRINGEMENT AND INVALIDITY OF U.S. PATENT NO. 5,380,306

Plaintiff RYMED TECHNOLOGIES, INC. ("RyMed") alleges: PARTIES

1.

Plaintiff RyMed is a corporation duly organized and existing under the

laws of Delaware, having a principal place of business at 137 Third Avenue North, Franklin, Tennessee. 2. Upon information and belief, Defendant Laboratoires Pharmaceutiques

Vygon is a corporation duly organized under the laws of France, having a principal place of business at 5-11, rue Adeline, 95440 Ecouen, France. 3. Upon information and belief, Defendant Vygon ("Vygon"), d/b/a/ VyGon

S.A. and/or Laboratoires Pharmaceutiques Vygon is a corporation duly organized under the laws of France, having a principal place of business at 5-11, rue Adeline, 95440 Ecouen, France. Hereinafter, Defendant Laboratoires Pharmaceutiques Vygon and

Defendant Vygon are referred to jointly as "Defendants."

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JURISDICTION

4.

This is an action arising under the patent laws of the United States.

Subject matter jurisdiction over this action exists pursuant to 28 U.S.C. §§ 1331, 1338, and 2201-2202. 5. Upon information and belief, this Court has personal jurisdiction over

Defendants because they have established minimum contacts with the forum. Upon information and belief, Defendants manufacture products that are and have been used, offered for sale, sold, and purchased in Tennessee, including in this District. Upon information and belief, Defendants, either directly and/or through their distribution networks, place their products within the stream of commerce, which stream is directed at this District. As such, Defendants have purposefully availed themselves of the privileges and benefits of the laws of the State of Tennessee, and the exercise of jurisdiction over Defendants would not offend traditional notions of fair play and substantial justice. VENUE

6.

Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b), (c), and

(d) because upon information and belief, Defendants are aliens, reside in this District, may be found in this District, are subject to personal jurisdiction in this District, and a substantial part of the events, omissions, and injuries giving rise to RyMed's claims occurred in this District. FACTUAL ALLEGATIONS

7.

RyMed specializes in the design, development, and marketing of

innovative safety products in the field of intravenous catheter care management. 8. RyMed created the InVision-Plus® NEUTRAL® I.V. Connector System,

which is designed to prevent blood reflux into a catheter lumen when the InVision-Plus® NEUTRAL® is connected to and disconnected from a syringe and/or I.V. set. This product reduces the possibility of intraluminal thrombotic catheter occlusions, as well as reduces the possibility of intraluminal catheter-related bloodstream infections.
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9.

RyMed has also designed and created a new product, the InVision-Plus®

NEUTRAL® with Modified Boot. RyMed has taken concrete steps with the intent to manufacture, sell, and offer to sell in the United States the InVision-Plus® NEUTRAL® with Modified Boot. These steps include: a. The completion of all engineering design drawings for the new modified boot; b. The completion of all engineering functional testing on the new modified boot; c. The completion of all sterilization testing on the new modified boot; d. The development of a large captivation production mold of the new modified boot design schedule for completion in the late fourth quarter of 2007; and e. The preparation of sales and marketing literature for the new modified boot design; RyMed expects to offer the InVision-Plus® NEUTRAL® with Modified Boot for sale in the first quarter of 2008. 10. Upon information and belief, Vygon and/or Laboratoires Pharmaceutiques

Vygon is the owner of the entire right, title, and interest in and to United States Patent No. 5,380,306 ("the '306 patent") entitled "Unitary Composite Connector For A Liquid Circuit, In Particular For Medical Applications." A true and correct copy of the '306 patent is attached hereto as Exhibit A to this Complaint. 11. On September 17, 2007, Defendants' counsel sent a letter to RyMed,

alleging that RyMed's InVision-Plus® NEUTRAL® I.V. Connector System (incorrectly identified in the letter as the Invision-Plus Neutral Displacement I.V. Connector System), and possibly other products, infringe the '306 patent. Defendants asked RyMed to cease and desist its alleged infringement of the '306 patent, "including, without limitation, the 3

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manufacture, use, offer for sale, and sale of RyMed's [InVision-Plus® NEUTRAL® I.V. Connector System] and all other infringing systems and components." Defendants then informed RyMed that "[r]emedies for patent infringement in an action at law include an award of damages and an injunction. Infringing acts committed after the notice given by this correspondence will be willful and may result in an award of increased damages and attorneys fees." A true and correct copy of the September 17, 2007 letter from

Defendants to RyMed is attached hereto as Exhibit B to this Complaint. 12. On October 16, 2007, RyMed's counsel contacted Defendants' counsel via

email to further discuss the issue, but in an email dated October 18, 2007, Defendants' counsel reiterated its demand that RyMed cease and desist its alleged patent infringement. In addition, Defendants' counsel stated that "Vygon does not wish to pursue a business arrangement with RyMed or deal with RyMed other than through counsel." A true and correct copy of the October 16, 2007 email from Rymed's counsel to Defendants' counsel and the October 18, 2007 email from Defendants' counsel in response are attached hereto as Exhibit C to this Complaint. 13. Accordingly, RyMed is in the position of either continuing to

manufacture, offer to sell, and sell the InVision-Plus® NEUTRAL® I.V. Connector System in the United States under apprehension of suit by Defendants, or abandoning its efforts. As described above, RyMed has also taken ongoing concrete steps with the intent to manufacture, offer to sell and sell in the United States the InVision-Plus NEUTRAL® with Modified Boot. RyMed intends to begin offering the InVision-Plus NEUTRAL® with Modified Boot for sale in the first quarter of 2008. As such, RyMed is in the position of either continuing to pursue its plans with respect to manufacturing, offering to sell, and selling the InVision-Plus® NEUTRAL® with Modified Boot in the United States under apprehension of suit by Defendants, or abandoning its efforts.

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14.

This is an actual and justiciable controversy of sufficient immediacy and

reality between parties having adverse legal interests to warrant the issuance of a declaratory judgment. COUNT ONE

DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE '306 PATENT 15. RyMed realleges and incorporates herein by reference the matters alleged

in Paragraphs 1 through 14 of this Complaint. 16. An actual and justiciable controversy exists between RyMed and

Defendants as to RyMed's non-infringement of the '306 patent. 17. RyMed has not infringed and does not infringe any valid and enforceable

claim of the '306 patent, either directly, indirectly, literally, or under the doctrine of equivalents. 18. RyMed has no adequate remedy at law. The actions and assertions made

by Defendants regarding the infringement of the '306 patent have caused, and if not enjoined, will continue to cause, irreparable injury to RyMed. COUNT TWO

DECLARATORY JUDGMENT OF INVALIDITY OF THE '306 PATENT 19. RyMed realleges and incorporates herein by reference the matters alleged

in Paragraphs 1 through 18 of this Complaint. 20. An actual and justiciable controversy exists between RyMed and

Defendants as to the invalidity of the '306 patent. 21. The claims of the '306 patent are invalid and unenforceable for failure to

meet one or more of the requirements of patentability specified in Title 35 of the United States Code, including, without limitation, 35 U.S.C. §§ 102, 103 and/or 112.

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22.

RyMed has no adequate remedy at law. The actions and assertions made

by Defendants regarding infringement of the '306 patent have caused, and if not enjoined, will continue to cause, irreparable injury to RyMed. DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38, Plaintiff RyMed hereby demands a trial by jury of this action. REQUESTED RELIEF

WHEREFORE, RyMed prays for judgment and seeks relief against Defendants as follows: a. A judgment declaring that RyMed has not and does not infringe any valid and enforceable claim of the '306 patent, either directly or indirectly, and either literally or under the doctrine of equivalents. b. A judgment declaring that each and every claim of the '306 patent is invalid and/or unenforceable. c. A judgment declaring this case to be an exceptional case within the meaning of 35 U.S.C. § 285, and awarding RyMed its attorneys' fees, costs, and expenses incurred in this action as permitted by law; and d. Such other and further relief as the Court may deem just and proper. Dated: March 25, 2008

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Respectfully submitted, NEAL & HARWELL, PLC By: /s/ W. David Bridgers W. David Bridgers (BPR # 16603) 150 Fourth Avenue North Suite 2000 Nashville, TN 37219 (615) 244-1713

Henry C. Bunsow (California State Bar No. 060707) K. T. Cherian (California State Bar No. 133967) Scott Wales (California State Bar No. 179804) HOWREY LLP 525 Market Street, Suite 3600 San Francisco, California 94105 Telephone: (415) 848-4900 Facsimile: (415) 848-4999 Counsel for Plaintiff RyMed Technologies, Inc.

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been served via e-mail on Edward Ramage, Esq., Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, 211 Commerce Street, Suite 1000, Nashville, TN 37201, [email protected], counsel for

Laboratoires Pharmaceutiques Vygon, this 25th day of March, 2008. /s/ W. David Bridgers

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EXHIBIT B

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION RYMED TECHNOLOGIES, INC., Plaintiff, v. LABORATOIRES PHARMACEUTIQUES VYGON, and VYGON, Defendants. Case No. 3-07-01077 Judge Trauger

ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIM

Defendant Vygon ("Vygon") by its attorneys, answers the First Amended Complaint ("Complaint") of Plaintiff RyMed Technologies, Inc. (hereinafter, "RyMed" or "Plaintiff"), as follows: Vygon denies each and every allegation set forth in the Complaint except those allegations that are explicitly admitted herein. Vygon's responses herein are limited to responses on behalf of Vygon only and are not to be construed as responses for, or on behalf of, Defendant Laboratoires Pharmaceutiques Vygon ("LPV") for any purpose. The term "Vygon" refers to the single corporate entity. Unless otherwise expressly noted herein, "Vygon" shall not be defined in accordance with RyMed's inaccurate and misleading definition of "Vygon" as alleged in Paragraph 3 and as alleged by reference in certain other paragraphs of RyMed's Complaint.

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PARTIES

1.

Plaintiff RyMed is a corporation duly organized and existing under the laws of the

state of Delaware, having a principal place of business at 137 Third Avenue North, Franklin, Tennessee. ANSWER:

Vygon denies the allegations contained in Paragraph 1 except admits that RyMed

asserts that it is incorporated in Delaware and has a place of business in Franklin, Tennessee.

2.

Upon information and belief, Defendant Laboratoires Pharmaceutiques Vygon is

a corporation duly organized under the laws of France, having a principal place of business at 511, rue Adeline, 95440 Ecouen, France. ANSWER:

Vygon admits the allegations in Paragraph 2.

3.

Upon information and belief, Defendant Vygon ("Vygon"), d/b/a/ Vygon S.A.

and/or Laboratoires Pharmaceutiques Vygon is a corporation duly organized under the laws of France, having a principal place of business at 5-11, rue Adeline, 95440 Ecouen, France. Hereinafter, Defendant Laboratoires Pharmaceutiques Vygon and Defendant Vygon are referred to jointly as "Defendants." ANSWER:

Vygon denies the allegations in Paragraph 3 and specifically denies the inaccurate

and misleading allegation in Paragraph 3 that Vygon is "d/b/a Vygon S.A. and/or Laboratoires Pharmaceutiques Vygon" and further states that all responses herein on behalf of Vygon (not Plaintiff's definition of "Vygon") incorporate by reference such denial.

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JURISDICTION

4.

This is an action arising under the patent laws of the United States. Subject

matter jurisdiction over this action exists pursuant to 28 U.S.C. §§ 1331, 1338, and 2201-2202. ANSWER:

Vygon denies the allegations contained in Paragraph 4 of the Complaint except

admits that Plaintiff purports to assert claims against Vygon under the patent laws of the United States and certain United States statutes. Vygon further states that, to the extent Paragraph 4 contains legal conclusions, no response is required.

5.

Upon information and belief, this Court has personal jurisdiction over Defendants

because they have established minimum contacts with the forum. Upon information and belief, Defendants manufacture products that are and have been used, offered for sale, sold and purchased in Tennessee, including in this District. Upon information and belief, Defendants, either directly and/or through their distribution networks, place their products within the stream of commerce, which stream is directed at this District. As such, Defendants have purposefully availed themselves of the privileges and benefits of the laws of the state of Tennessee, and the exercise of jurisdiction over Defendants would not offend traditional notions of fair play and substantial justice. ANSWER:

Vygon denies the allegations in Paragraph 5 because RyMed's allegations refer to

RyMed's inaccurate and misleading definition of "Vygon" alleged in Paragraph 3 of the Complaint. Vygon further states that, to the extent Paragraph 5 contains legal conclusions, no response is required.

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VENUE

6.

Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b), (c), and (d)

because upon information and belief, Defendants are aliens, reside in this District, may be found in this District, are subject to personal jurisdiction in this District, and a substantial part of the events, omissions, and injuries giving rise to RyMed's claims occurred in this District. ANSWER:

Vygon denies the allegations in Paragraph 6 because RyMed's allegations refer to

its inaccurate and misleading definition of "Vygon" contained in Paragraph 3 of the Complaint. Vygon further states that, to the extent Paragraph 6 contains legal conclusions, no response is required. Vygon further states that, for the convenience of parties and witnesses and in the interests of justice, this case, if not dismissed, should be transferred with respect to the claims against Vygon, to the United States District Court for the District of Delaware pursuant to 28 U.S.C. § 1404(a) because, inter alia, Vygon, the true owner of the patent-in-suit since the time

the patent was applied for in November 1991, has its United States headquarters in Norristown, Pennsylvania and LPV, a subsidiary of Vygon and an entity separate from Vygon, owns no right, title or interest in the patent-in-suit. Accordingly, Vygon attaches, as Exhibit A to this Answer, a true and correct copy of the Amended Complaint, without exhibits, filed on April 11, 2008 by Vygon against RyMed in the United States District Court for the District of Delaware (hereinafter referred to as the "Delaware Action").

FACTUAL ALLEGATIONS

7.

RyMed specializes in the design, development and marketing of innovative safety

products in the field of intravenous catheter care management.

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ANSWER:

Vygon is without sufficient knowledge or information to form a belief as to the

truth of the allegations contained in Paragraph 7 and therefore denies them.

8.

RyMed created the InVision-Plus® NEUTRAL® I.V. Connector System, which

is designed to prevent blood reflux into a catheter lumen when the InVision-Plus® NEUTRAL® is connected to and disconnected from a syringe and/or I.V. set. This product reduces the possibility of intraluminal thrombotic catheter occlusions, as well as reduces the possibility of intraluminal catheter-related bloodstream infections. ANSWER:

Vygon is without sufficient knowledge or information to form a belief as to the

truth of the allegations contained in Paragraph 8 and therefore denies them.

9.

RyMed has also designed and created a new product, the InVision-Plus® RyMed has taken concrete steps with the intent to

NEUTRAL® with Modified Boot.

manufacture, sell and offer to sell in the United States the InVision-Plus® NEUTRAL® with Modified Boot. These steps include: (a) boot; (b) boot; (c) The completion of all sterilization testing on the new modified boot; The completion of all engineering functional testing on the new modified The completion of all engineering design drawings for the new modified

(d) The development of a large captivation production mold of the new modified boot design schedule for completion in the late fourth quarter of 2007; and (e) boot design; The preparation of sales and marketing literature for the new modified

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RyMed expects to offer the InVision-Plus® NEUTRAL® with Modified Boot for sale in the first quarter of 2008. ANSWER:

Vygon is without sufficient knowledge or information to form a belief as to the

truth of the allegations contained in Paragraph 9 and therefore denies them.

10.

Upon information and belief, Vygon and/or Laboratoires Pharmaceutiques Vygon

is the owner of the entire right, title and interest in and to United States Patent No. 5,380,306 ("the '306 patent") entitled "Unitary Composite Connector For A Liquid Circuit, In Particular For Medical Applications." A true and correct copy of the `306 patent is attached hereto as Exhibit A to this Complaint. ANSWER:

Vygon denies the allegations in Paragraph 10 and states that Vygon owns the

entire right, title and interest in and to the `306 patent.

11.

On September 17, 2007, Defendants' counsel sent a letter to RyMed, alleging that

RyMed's InVision-Plus® NEUTRAL® I.V. Connector System (incorrectly identified in the letter as the Invision-Plus Neutral Displacement I.V. Connector System), and possibly other products, infringe the `306 patent. Defendants asked RyMed to cease and desist its alleged infringement of the `306 patent, "including, without limitation, the manufacture, use, offer for sale, and sale of RyMed's [InVision-Plus® NEUTRAL® I.V. Connector System] and all other infringing systems and components." Defendants then informed RyMed that "[r]emedies for patent infringement in an action at law include an award of damages and an injunction. Infringing acts committed after the notice given by this correspondence will be willful and may
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result in an award of increased damages and attorneys fees." A true and correct copy of the September 17, 2007 letter from Defendants to RyMed is attached hereto as Exhibit B to this Complaint. ANSWER:

Vygon denies the allegations in Paragraph 11 except admits that RyMed refers to

a letter attached as Exhibit B to the Complaint, which was sent with the authorization of Vygon, and refers the Court to the letter attached as said Exhibit B for its contents.

12.

On October 16, 2007, RyMed's counsel contacted Defendants' counsel via email

to further discuss the issue, but in an email dated October 18, 2007, Defendants' counsel reiterated its demand that RyMed cease and desist its alleged patent infringement. In addition, Defendants' counsel stated that "Vygon does not wish to pursue a business arrangement with RyMed or deal with RyMed other than through counsel." A true and correct copy of the October 16, 2007 email from RyMed's counsel to Defendants' counsel and the October 18, 2007 email from Defendants' counsel in response are attached hereto as Exhibit C to this Complaint. ANSWER:

Vygon denies the allegations in Paragraph 12 except admits that RyMed refers to

an e-mail from Vygon's counsel to RyMed's Counsel attached as Exhibit C to the Complaint which was sent with the authorization of Vygon, that RyMed refers to an e-mail sent from RyMed's counsel to Vygon's counsel, and refers the Court to the e-mails attached as said Exhibit C for their contents.

13.

Accordingly, RyMed is in the position of either continuing to manufacture, offer

to sell, and sell the InVision-Plus® NEUTRAL® I.V. Connector System in the United States
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under apprehension of suit by Defendants, or abandoning its efforts. As described above, RyMed has also taken ongoing concrete steps with the intent to manufacture, offer to sell and sell in the United States the InVision-Plus® NEUTRAL® with Modified Boot. RyMed intends to begin offering the InVision-Plus® NEUTRAL® with Modified Boot for sale in the first quarter of 2008. As such, RyMed is in the position of either continuing to pursue its plans with respect to manufacturing, offering to sell, and selling the InVision-Plus® NEUTRAL® with Modified Boot in the United States under apprehension of suit by Defendants, or abandoning its efforts. ANSWER:

Vygon is without sufficient knowledge or information to form a belief as to the

truth of the allegations in Paragraph 13 and therefore denies them.

14.

This is an actual and justiciable controversy of sufficient immediacy and reality

between parties having adverse legal interests to warrant the issuance of a declaratory judgment. ANSWER:

Vygon denies the allegations contained in Paragraph 14 of the Complaint and, to

the extent Paragraph 14 contains legal conclusions, states that no responses to such legal conclusions are required. COUNT ONE.

DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE '306 PATENT 15. RyMed realleges and incorporates herein by reference the matters alleged in

Paragraphs 1 through 14 of this Complaint.

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ANSWER:

Vygon realleges and incorporates by reference its responses to Paragraphs 1

through 14 of this Complaint, as if fully set forth herein.

16.

An actual and justiciable controversy exists between RyMed and Defendants as to

RyMed's non-infringement of the `306 patent. ANSWER:

Vygon is without sufficient knowledge or information to form a belief as to the

truth of the allegations contained in Paragraph 16 and therefore denies them, and, to the extent Paragraph 16 contains legal conclusions, states that no response is required to such legal conclusions.

17.

RyMed has not infringed and does not infringe any valid and enforceable claim of

the `306 patent, either directly, indirectly, literally, or under the doctrine of equivalents. ANSWER:

Vygon denies the allegations in Paragraph 17.

18.

RyMed has no adequate remedy at law. The actions and assertions made by

Defendants regarding the infringement of the `306 patent have caused, and if not enjoined, will continue to cause, irreparable injury to RyMed. ANSWER:

Vygon denies the allegations contained in Paragraph 18 of the Complaint. Vygon

further states that, to the extent Paragraph 18 contains legal conclusions, no response is required.

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COUNT TWO.

DECLARATORY JUDGMENT OF INVALIDITY OF THE `306 PATENT 19. RyMed realleges and incorporates herein by reference the matters alleged in

Paragraphs 1 through 18 of this Complaint. ANSWER: Vygon realleges and incorporates by reference its responses to Paragraphs 1 through

18 of this Complaint, as if fully set forth herein.

20.

An actual and justiciable controversy exists between RyMed and Defendants as to

the invalidity of the `306 patent. ANSWER:

Vygon is without sufficient knowledge or information to form a belief as to the

truth of the allegations contained in Paragraph 20 and therefore denies them, and, to the extent Paragraph 20 contains legal conclusions, states that no response is required to such legal conclusions.

21.

The claims of the `306 patent are invalid and unenforceable for failure to meet

one or more of the requirements of patentability specified in Title 35 of the United States Code, including, without limitation, 35 U.S.C. §§ 102, 103 and/or 112. ANSWER:

Vygon denies the allegations contained in Paragraph 21 of the Complaint. Vygon

further states that, to the extent Paragraph 21 contains legal conclusions, no response is required.

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22.

RyMed has no adequate remedy at law. The actions and assertions made by

Defendants regarding infringement of the `306 patent have caused, and if not enjoined, will continue to cause, irreparable injury to RyMed. ANSWER:

Vygon denies the allegations contained in Paragraph 22 of the Complaint. Vygon

further states that, to the extent Paragraph 22 contains legal conclusions, no response is required.

RYMED'S REQUEST FOR RELIEF

WHEREFORE, RyMed prays for judgment and seeks relief against Vygon as follows: a. A judgment declaring that RyMed has not and does not infringe any valid and enforceable claim of the `306 patent, either directly or indirectly, and either literally or under the doctrine of equivalents. b. A judgment declaring that each and every claim of the `306 patent is invalid and/or enforceable. c. A judgment declaring this case to be an exceptional case within the meaning of 35 U.S.C. § 285 and awarding RyMed its attorneys' fees, costs and expenses incurred in this action as permitted by law; and d. Such other and further relief as this Court may deem just and proper. ANSWER:

Vygon states that Plaintiff is entitled to none of the relief requested in the

foregoing "Wherefore" clause.

AFFIRMATIVE AND ADDITIONAL DEFENSES

For its affirmative and additional defenses, Vygon alleges as follows:

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1.

The Complaint in whole or in part fails to state a claim upon which relief

may be granted. 2. 3. This Court lacks subject matter jurisdiction over RyMed's Complaint. This Court should dismiss RyMed's Complaint pursuant to the Court's

discretion under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. 4. The Complaint should be dismissed or, alternatively, transferred, because

Delaware is the more appropriate and convenient venue under 28 U.S.C. § 1404(a). WHEREFORE, Vygon respectfully requests that this Court 1. Dismiss RyMed's Complaint in its entirety and with prejudice; 2. Enter judgment in Vygon's favor and against Plaintiff; 3. Award to Vygon its attorney's fees and costs pursuant to 35 U.S.C. § 285 in connection with Vygon's defense of this Complaint; 4. Abstain from further proceedings with respect to RyMed's Complaint; and 5. Grant such other and further relief as this Court deems just and proper.

COUNTERCLAIM FOR PATENT INFRINGEMENT

Vygon, by its attorneys, as and for its Counterclaim herein against RyMed Technologies, Inc., alleges as follows: NATURE OF THE COUNTERCLAIM

1.

By this counterclaim ("the Counterclaim"), Vygon seeks to preserve its rights in

this Court to redress RyMed Technologies, Inc.'s ("RyMed") infringement of Vygon's patent

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rights despite Vygon's firm conviction that these claims should be adjudicated by the Court in the Delaware Action. 2. In particular, and as described below, RyMed has unlawfully and willfully used

Vygon's patented invention in certain of its intravenous catheter care management products, all in violation of Vygon's rights. THE PARTIES

3.

Vygon is a corporation duly organized under the laws of France, having principal

places of business at 5-11, rue Adeline, 95440, Ecouen, France and at its United States headquarters, located at 2495 General Armistead Ave, Norristown, Pennsylvania. Vygon

specializes in the design, development, manufacture and marketing of medical devices in the field of intravenous connectors. 4. RyMed is a corporation duly organized and existing under the laws of the state of

Delaware, having a place of business at 137 Third Avenue North, Franklin, Tennessee. Upon information and belief, RyMed manufactures, advertises, develops, markets, offers for sale and sells products in the field of intravenous catheter care management. JURISDICTION AND VENUE

5.

This Court has subject matter jurisdiction over this compulsory counterclaim

pursuant to 28 U.S.C. §§ 1331 and 1338.

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6.

Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b)-(c) and 1400(b)

because, upon information and belief, RyMed resides in this District and/or is subject to personal jurisdiction in this District and thus may be found in this District. RYMED'S INFRINGEMENT OF VYGON'S PATENT

7.

On January 10, 1995, the United States Patent and Trademark Office duly and

legally issued United States Patent No. 5,380,306 ("the '306 Patent") entitled "Unitary Composite Connector For A Liquid Circuit, In Particular For Medical Applications" to Mr. Thierry Brinon. A true and correct copy of the `306 Patent is attached hereto as Exhibit B. 8. The named inventor on the `306 Patent, Mr. Thierry Brinon, assigned his entire

right, title and interest in the '306 Patent to Vygon, which is listed as the assignee on the `306 Patent. A copy of the assignment is attached hereto as Exhibit C. Accordingly Vygon, as assignee, is the owner of the entire right, title and interest in and to the `306 Patent. 9. Upon information and belief, RyMed has and continues to manufacture, use,

advertise, market, design, offer for sale, and/or sell products, including medical apparatuses, that infringe the '306 Patent. These products include, but are not limited to, RyMed's InVisionPlus® Neutral® IV Connector. 10. On September 17, 2007, Vygon's counsel, in a letter to RyMed ("the September

17 Letter"), alleged that RyMed's InVision-Plus® NEUTRAL® I.V. Connector System and possibly other products, infringe the `306 Patent. A true and correct copy of the September 17 Letter is attached hereto as Exhibit D. Vygon requested that RyMed cease and desist its

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infringing activities with respect to the `306 Patent, including, without limitation, the manufacture, use offer for sale, and sale of RyMed's InVision-Plus® NEUTRAL® I.V. Connector System and all other infringing systems and components. See Ex. D.

11.

RyMed responded to the September 17 Letter by letter dated October 3, 2007 to

Vygon's counsel ("the October 3 Letter"), stating that it would not cease and desist from the alleged infringing activities set forth in the September 17 Letter. A true and correct copy of the October 3 Letter is attached hereto as Exhibit E. 12. In an effort to resolve the dispute, the parties engaged in subsequent electronic

mail correspondence and telephone communication until October 18, 2007 when Vygon, based on RyMed's refusal to cease its infringing activities, terminated such communications by electronic mail dated October 18, 2007. True and correct copies of certain of such correspondence, specifically, an October 16, 2007 e-mail from RyMed's counsel to Vygon's counsel and an October 18, 2007 e-mail from Vygon's counsel in response, are attached hereto as Exhibit F. 13. Vygon asserts this Counterclaim in this Court to preserve its rights in the event

this Court denies Defendants-Counterclaimant's motion to dismiss the Complaint or alternatively to transfer venue to the District of Delaware. This Counterclaim should not be construed as any acknowledgement that this Court is the proper venue in which to adjudicate RyMed's Complaint.

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COUNT ONE

RYMED'S INFRINGEMENT OF VYGON'S PATENT

14.

Vygon realleges and incorporates herein by reference the matters alleged in

Paragraphs 23-35. 15. In violation of Vygon's exclusive rights under the patent laws of the United

States, 35 U.S.C.§ 271, et seq., RyMed has infringed and continues to infringe the `306 Patent by

using, making, offering for sale, and selling products that embody the invention described and shown in the `306 Patent, including without limitation, the InVision-Plus® NEUTRAL® I.V. Connector System. Upon information and belief, RyMed also has contributed to and induced infringement of the `306 Patent, and continues all such infringing activities. 16. Upon information and belief, RyMed's infringement of the `306 Patent has been

and continues to be willful and deliberate. 17. As a direct and proximate consequence of RyMed's infringing activities and

practices, Vygon has suffered, and will continue to suffer, substantial damages, in an amount to be proven at trial, for which it is entitled to relief under 35 U.S.C. § 284. 18. RyMed's conduct also has caused, and will continue to cause Vygon, irreparable

harm, for which there is no adequate remedy at law and for which Vygon is entitled to injunctive relief under 35 U.S.C. § 283. RyMed's infringing conduct is likely to continue unless it is enjoined from such conduct by this Court.

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PRAYER FOR RELIEF

WHEREFORE, as a result of the unlawful and infringing acts of RyMed as set forth herein, Vygon prays for the entry of judgment from this Court: A. Declaring that Vygon is the owner of the `306 Patent and that the `306 Patent was

duly and legally issued, is valid, and is enforceable; B. Declaring that RyMed has directly infringed, contributorily infringed, and/or

induced infringement and continues to so infringe, one or more of the claims of the `306 Patent; C. `306 Patent; D. Preliminarily and permanently enjoining RyMed, and all persons in concert and Declaring that RyMed has willfully infringed one or more of the claims of the

participation with RyMed, including RyMed's subsidiaries, affiliates, successors, assigns, officers, employees and agents, pursuant to 35 U.S.C. § 283, from infringing, contributing to the infringement of, and inducing infringement of the `306 Patent, and specifically from directly or indirectly making, using, selling or offering for sale, any products or services embodying the invention of the `306 Patent during the life of the claims of the `306 Patent; E. Awarding damages to Vygon in an amount adequate to compensate Vygon for

RyMed's infringement of the `306 Patent, including disgorgement of RyMed's profits and an accounting of all such profits or gains derived from RyMed's infringing activities and violations of law; F. Ordering RyMed to deliver to Vygon, for destruction at Vygon's option, all

products that infringe the `306 Patent;

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G.

Awarding to Vygon treble damages pursuant to 35 U.S.C. § 285 by reason of

RyMed's infringement of the `306 Patent; H. Deeming this case to be an "exceptional" case within the meaning of 35 U.S.C.

§ 285, entitling Vygon to an award of its reasonable attorney's fees, expenses and costs, including an assessment of interest in this action; and I. Awarding such other and further relief as the Court may deem just and proper,

including without limitation a ruling that if RyMed's First Amended Complaint is not dismissed, it should be transferred, along with Vygon's Counterclaim, to the District of Delaware. Dated: April 21, 2008

Respectfully submitted, s/W. Edward Ramage/ W. Edward Ramage (TN Bar No. 16261) Baker, Donelson, Bearman, Caldwell & Berkowitz 211 Commerce Street, Suite 1000 Nashville, Tennessee 37201

Maxim H. Waldbaum, Admitted pro hac vice Schiff Hardin LLP 900 Third Avenue New York, New York 10022 Telephone: 212.753.5000 Facsimile: 212.753.5044 Counsel for Defendant Vygon

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been served upon the following counsel of record via the Electronic Case Filing system of the United States District Court for the Middle District of Tennessee to: W. David Bridgers Neal & Harwell, PLC 150 Fourth Avenue North Suite 2000 Nashville, TN 37219 Henry C. Bunsow K.T. Cherian Scott Wales Howrey LLP 525 Market Street, Suite 3600 San Francisco, CA 94105 this 21st day of April, 2008. s/W. Edward Ramage / W. Edward Ramage

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EXHIBIT C

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UNITED STATESDISTRICt COURT FOR THE MIDDLE DISTRICt OF TE~EE
RYMED 1'ECHNOLOGY INC., Civil Action No. 3:07-cv-OIO77

Plaintiff.
-against-

Judge Trauger

LABORATOIRES PHARMACEUTIQUES VYGON, AND VYGON,

Defmdants. DECLARATION OF MICHEL HANANIA lN SUPPORTOF DEFENDANTS'MOTION TO DISMISS

l, Michel Hanania, declare that

1

1 am the manager Laboratoires of Pharmaceutiques Vygon ("LPV"), a French

Corporationheadquartered 5-11, rue Adeline, 95440Ecouen,Franoe. 1have actual knowledge at of the facts setforth herein and.if called as a wi1ness would competentlytestify thereto. 2.

LPV is a liceosedpbarmacymder Frmch law (Public Health Departn61t

registrationnmnber826), and is a wholly-owned subsidiaryofVygon.

3.

The main businoes activity of LPV is the sterilizationof Vygon prodOEts. The

customers LPV are mainly French pharmacists, of who elect to work with LPV for its pharmaceutical designatioe.LPV assists Vygon in the saleof Vygoe products obtaining by the
necessary administrativepharmaceutical accreditations. LPV d~ no businessin the United States. LPV doesnot have any offices.

4.

employees, outsidesalesrepresentatives, any other meaningfulcontactwithin the United or States.

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5.

LPV does have,andbasneverhad,anyright, title, or interest UnitedS~ not in

Patmt No. 5,380,306 (the "patoot-in-suit"), was not involved in the developmmtof any and
invention claimed in the patoot or any relatedinvootion. LPV bas similarly not beeninvolved in

thedesign. marketing, manufactme anyproduct or of b~
6.

uponthepatent-in-suit

LPV bashad no contact with RyMed Technologies,Inc. concerningthe patent-in-

suit or any of RyMed's allegationsin dùs case,at any time.

Pursuantto 28 V.S.C. § 1746,1 declaretmder the penalty of perjury that the foregoing is

trueandconect.

2

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EXHIBIT D

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Query

Reports v

PATENT

U.S. District Court District of Delaware (Wilmington) CIVIL DOCKET FOR CASE #: 1:07-cv-00468-JJF
ICU Medical Inc. v. RyMed Technologies Inc. Assigned to: Judge Joseph J. Farnan, Jr. Cause: 35:271 Patent Infringement Plaintiff ICU Medical Inc. represented by Richard L. Horwitz Potter Anderson & Corroon, LLP 1313 N. Market St., Hercules Plaza, 6th Flr. P.O. Box 951 Wilmington, DE 19899-0951 (302) 984-6000 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Diana Luo Pro Hac Vice Email: [email protected] ATTORNEY TO BE NOTICED James H. Pooley Pro Hac Vice Email: [email protected] ATTORNEY TO BE NOTICED Katherine Nolan-Stevaux Pro Hac Vice Email: [email protected]
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Date Filed: 07/27/2007 Jury Demand: Both Nature of Suit: 830 Patent Jurisdiction: Federal Question

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Kenneth Laurence Dorsney Potter Anderson & Corroon, LLP 1313 N. Market St., Hercules Plaza, 6th Flr. P.O. Box 951 Wilmington, DE 19899-0951 302-984-6087 Email: [email protected] TERMINATED: 02/29/2008 ATTORNEY TO BE NOTICED Kimberly N. Van Voorhis Pro Hac Vice Email: [email protected] ATTORNEY TO BE NOTICED Marc D. Peters Pro Hac Vice Email: [email protected] ATTORNEY TO BE NOTICED V. Defendant RyMed Technologies Inc. represented by Richard D. Kirk Bayard, P.A. 222 Delaware Avenue, Suite 900 P.O. Box 25130 Wilmington, DE 19899 (302) 655-5000 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

Counter Claimant

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RyMed Technologies Inc.

represented by Richard D. Kirk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Counter Defendant ICU Medical Inc. represented by Richard L. Horwitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Diana Luo (See above for address) ATTORNEY TO BE NOTICED James H. Pooley (See above for address) ATTORNEY TO BE NOTICED Katherine Nolan-Stevaux (See above for address) ATTORNEY TO BE NOTICED Kenneth Laurence Dorsney (See above for address) TERMINATED: 02/29/2008 ATTORNEY TO BE NOTICED Kimberly N. Van Voorhis (See above for address) ATTORNEY TO BE NOTICED
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Marc D. Peters (See above for address) ATTORNEY TO BE NOTICED Date Filed 07/27/2007 # 1 Docket Text COMPLAINT filed with Jury Demand against RyMed Technologies Inc. - Magistrate Consent Notice to Pltf. ( Filing fee $ 350, receipt number 148322.) - filed by ICU Medical Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Civil Cover Sheet # 6 Acknowledgement of Consent Form)(els) (Entered: 07/30/2007) Notice of Availability of a U.S. Magistrate Judge to Exercise Jurisdiction (els) (Entered: 07/30/2007) Summons Issued as to RyMed Technologies Inc. on 7/27/2007. (els) (Entered: 07/30/2007) 3 Report to the Commissioner of Patents and Trademarks for Patent/Trademark Number(s) 5,685,866; 5,873,862; 5,928,204; 6,572,592; (els) (Entered: 07/30/2007) Return of Service Executed by ICU Medical Inc.. RyMed Technologies Inc. served on 7/27/2007, answer due 8/16/2007. (Horwitz, Richard) (Entered: 07/30/2007) STIPULATION TO EXTEND TIME August 16, 2007 to September 17, 2007 - filed by RyMed Technologies Inc.. (Kirk, Richard) (Entered: 08/01/2007) Case assigned to Judge Joseph J. Farnan, Jr. Please include the initials of the Judge (JJF) after the case number on all documents filed. (rjb) (Entered: 08/08/2007) 6 MOTION for Pro Hac Vice Appearance of Attorney James Pooley, Marc D. Peters, Kimberly N. Van Voorhis, Diana Luo and Katherine Nolan-Stevaux of Morrison & Foerster, LLP filed by ICU Medical Inc.. (Dorsney, Kenneth) (Entered: 08/09/2007)

07/27/2007 07/27/2007 07/30/2007

2

07/30/2007

4

08/01/2007

5

08/08/2007

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08/14/2007

SO ORDERED D.I. 6 MOTION for Pro Hac Vice Appearance of Attorney James Pooley, Marc D. Peters, Kimberly N. Van Voorhis, Diana Luo and Katherine Nolan-Stevaux of Morrison & Foerster, LLP filed by ICU Medical Inc. Signed by Judge Joseph J. Farnan, Jr. on 8/14/2007. (lec) (Entered: 08/15/2007) 7 Second STIPULATION EXTENDING TIME TO RESPOND TO COMPLAINT SEPTEMBER 17, 2007 TO OCTOBER 17, 2007 by RyMed Technologies Inc.. (Kirk, Richard) (Entered: 08/31/2007) SO ORDERED D.I. 7 Stipulation filed by RyMed Technologies Inc. Signed by Judge Joseph J. Farnan, Jr. on 9/5/2007. (lec) (Entered: 09/05/2007) SO ORDERED D.I. 5 STIPULATION TO EXTEND TIME August 16, 2007 to September 17, 2007 filed by RyMed Technologies Inc.. Signed by Judge Joseph J. Farnan, Jr. on 9/5/2007. (lec) (Entered: 09/05/2007) 8 MOTION for Pro Hac Vice Appearance of Attorney Henry C. Bunsow, K.T. Cherian, and Scott Wales - filed by RyMed Technologies Inc.. (Kirk, Richard) (Entered: 09/19/2007) NOTICE of MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. SECTION 1404(a) by RyMed Technologies Inc. (Kirk, Richard) (Entered: 10/11/2007) MOTION to Change Venue / DEFENDANT RYMED TECHNOLOGIES, INC.'S MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. SECTION 1404(a) filed by RyMed Technologies Inc.. (Kirk, Richard) (Entered: 10/11/2007)

08/31/2007

09/05/2007

09/05/2007

09/19/2007

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9

10/11/2007

10

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10/11/2007

11

OPENING BRIEF in Support re 10 MOTION to Change Venue /DEFENDANT RYMED TECHNOLOGIES, INC.'S MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. SECTION 1404 (a) /RYMED TECHNOLOGIES, INC.'S OPENING BRIEF IN SUPPORT OF ITS MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. SECTION 1404(a) filed by RyMed Technologies Inc..Answering Brief/Response due date per Local Rules is 10/29/2007. (Kirk, Richard) (Entered: 10/11/2007) DECLARATION re 10 MOTION to Change Venue / DEFENDANT RYMED TECHNOLOGIES, INC.'S MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. SECTION 1404 /DECLARATION (a) OF DANA WILLIAM RYAN IN SUPPORT OF RYMED TECHNOLOGIES, INC.'S MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. by RyMed Technologies Inc.. 1404(a) (Kirk, Richard) (Entered: 10/11/2007)

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DECLARATION re 10 MOTION to Change Venue / DEFENDANT RYMED TECHNOLOGIES, INC.'S MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. SECTION 1404 /DECLARATION (a) OF KATHARINE L. ALTEMUS IN SUPPORT OF RYMED TECHNOLOGIES, INC.'S MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. SECTION 1404(a) by RyMed Technologies Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L)(Kirk, Richard) (Entered: 10/11/2007) ANSWER to Complaint with Jury Demand, COUNTERCLAIM against ICU Medical Inc. by RyMed Technologies Inc.. (Attachments: # 1 certificate of service)(Kirk, Richard) (Entered: 10/12/2007) STIPULATION extending time for responsive briefing regarding defendant's Motion to Transfer Venue by ICU Medical Inc.. (Horwitz, Richard) (Entered: 10/24/2007)

10/12/2007

14

10/24/2007

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10/29/2007

16

ANSWERING BRIEF in Opposition re 10 MOTION to Change Venue /DEFENDANT RYMED TECHNOLOGIES, INC.'S MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. SECTION 1404(a) filed by ICU Medical Inc..Reply Brief due date per Local Rules is 11/8/2007. (Dorsney, Kenneth) (Entered: 10/29/2007) DECLARATION re 16 Answering Brief in Opposition, to Rymed's Motion to Transfer Venue (Declaration of Katherine NolanStevaux) by ICU Medical Inc.. (Attachments: # 1 Exhibit A-H)(Dorsney, Kenneth) (Entered: 10/29/2007) DECLARATION re 16 Answering Brief in Opposition, to Rymed's Motion to Transfer Venue (Declaration of Matthew Gingo) by ICU Medical Inc.. (Attachments: # 1 Exhibit A-B)(Dorsney, Kenneth) (Entered: 10/29/2007) DECLARATION re 16 Answering Brief in Opposition, to Rymed's Motion to Transfer Venue (Declaration of Alison Burcar) by ICU Medical Inc.. (Attachments: # 1 Exhibit A-I# 2 Certificate of Compliance J-L# 3 Exhibit M# 4 Exhibit N)(Dorsney, Kenneth) (Entered: 10/29/2007)

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10/30/2007

SO ORDERED, re 15 Stipulation filed by ICU Medical Inc., Set Briefing Schedule: re 10 MOTION to Change Venue / DEFENDANT RYMED TECHNOLOGIES, INC.'S MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. . SECTION 1404(a) Answering Brief due 10/29/2007.Reply Brief due 11/5/2007.. Signed by Judge Joseph J. Farnan, Jr. on 10/30/07. (dab) (Entered: 10/30/2007) 20 ANSWER to Counterclaim [PLAINTIFF ICU MEDICAL, INC.'S REPLY TO RYMED'S COUNTERCLAIMS WITH DEFENSES] by ICU Medical Inc..(Dorsney, Kenneth) (Entered: 11/01/2007) REPLY BRIEF re 10 MOTION to Change Venue / DEFENDANT RYMED TECHNOLOGIES, INC.'S MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. SECTION 1404(a) filed by RyMed Technologies Inc.. (Kirk, Richard) (Entered: 11/05/2007) ORAL ORDER that the November 9, 2007 Motion Day Hearing regarding D.I. 10 MOTION to Change Venue / DEFENDANT RYMED TECHNOLOGIES, INC.'S MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. SECTION 1404(a) filed by RyMed Technologies Inc. is CANCELLED. The motion will be decided on the papers submitted. Ordered by Judge

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11/14/2007

SO ORDERED, re 8 MOTION for Pro Hac Vice Appearance of Attorney Henry C. Bunsow, K.T. Cherian, and Scott Wales filed by RyMed Technologies Inc.. Signed by Judge Joseph J. Farnan, Jr. on 11/14/07. (bkb) (Entered: 11/14/2007) 22 Letter to The Honorable Joseph J. Farnan, Jr. from Richard D. Kirk, Esquire regarding Recently issued order in related case that bears on RyMed's Motion to Transfer (D.I.10). (Kirk, Richard) (Entered: 12/14/2007) Letter to The Honorable Joseph J. Farnan, Jr. from Richard L. Horwitz regarding December 14, 2007 letter from Richard D. Kirk - re 22 Letter. (Horwitz, Richard) (Entered: 12/14/2007) MEMORANDUM ORDER - denying re 10 MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. SECTION 1404 (a). Signed by Judge Joseph J. Farnan, Jr. on 1/23/08. (rwc) (Entered: 01/23/2008) MOTION for Reconsideration / Defendant RyMed Technologies, Inc.'s Motion for Reargument of Memorandum Order Denying Motion to Transfer Venue - filed by RyMed Technologies Inc.. (Attachments: # 1 Certificate of Service)(Kirk, Richard) (Entered: 02/06/2008)

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MEMORANDUM in Support re 25 MOTION for Reconsideration /Defendant RyMed Technologies, Inc.'s Motion for Reargument of Memorandum Order Denying Motion to Transfer Venue filed by RyMed Technologies Inc..Answering Brief/Response due date per Local Rules is 2/25/2008. (Attachments: # 1 Appendix A# 2 Certificate of Service)(Kirk, Richard) (Entered: 02/06/2008) NOTICE of Motion by RyMed Technologies Inc. re 25 MOTION for Reconsideration /Defendant RyMed Technologies, Inc.'s Motion for Reargument of Memorandum Order Denying Motion to Transfer Venue (Attachments: # 1 Certificate of Service)(Kirk, Richard) (Entered: 02/06/2008) DECLARATION re 25 MOTION for Reconsideration / Defendant RyMed Technologies, Inc.'s Motion for Reargument of Memorandum Order Denying Motion to by Transfer Venue RyMed Technologies Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Certificate of Service)(Kirk, Richard) (Entered: 02/06/2008)

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DECLARATION re 25 MOTION for Reconsideration / Defendant RyMed Technologies, Inc.'s Motion for Reargument of Memorandum Order Denying Motion to by Transfer Venue RyMed Technologies Inc.. (Attachments: # 1 Certificate of Service)(Kirk, Richard) (Entered: 02/06/2008) ANSWERING BRIEF in Opposition re 25 MOTION for Reconsideration /Defendant RyMed Technologies, Inc.'s Motion for Reargument of Memorandum Order Denying Motion to Transfer Venue filed by ICU Medical Inc..Reply Brief due date per Local Rules is 3/6/2008. (Dorsney, Kenneth) (Entered: 02/25/2008) DECLARATION re 30 Answering Brief in Opposition, [DECLARATION OF KIMBERLY VAN VOORHIS IN SUPPORT OF ICU'S OPPOSITION TO RYMED'S MOTION by ICU FOR REARGUMENT] Medical Inc.. (Attachments: # 1 Exhibit A-F)(Dorsney, Kenneth) (Entered: 02/25/2008)

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DECLARATION re 30 Answering Brief in Opposition, [DECLARATION OF ALISON D. BURCAR IN SUPPORT OF ICU'S OPPOSITION TO RYMED'S MOTION by ICU FOR REARGUMENT] Medical Inc.. (Attachments: # 1 Exhibit A)(Dorsney, Kenneth) (Entered: 02/25/2008) DECLARATION re 30 Answering Brief in Opposition, [DECLARATION OF GREG PRATT IN SUPPORT OF ICU'S OPPOSITION TO RYMED'S MOTION FOR REARGUMENT] by ICU Medical Inc.. (Attachments: # 1 Exhibit A-C)(Dorsney, Kenneth) (Entered: 02/25/2008) NOTICE of [Notice of Withdrawal of Attorney] by ICU Medical Inc. (Dorsney, Kenneth) (Entered: 02/29/2008) CORRECTING ENTRY: Attorney Kenneth L. Dorsney terminated per DIN #34. (nms) (Entered: 03/03/2008) ORAL ORDER: The March 7, 2008 Motion Day Hearing in this matter is CANCELLED. The Court will decide the Motion on the papers submitted. Ordered by Judge Joseph J. Farnan, Jr. on 03/05/2008. (dlk) (Entered: 03/05/2008)

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Letter to Honorable Joseph J. Farnan, Jr. from Richard L. Horwitz regarding requesting a date for a scheduling conference. (Horwitz, Richard) (Entered: 03/26/2008) Letter to The Honorable Joseph J. Farnan, Jr. from Richard D. Kirk, Esquire regarding Response to Mr. Horwitz's March 26, 2008 letter (D.I. 35) - re 35 Letter. (Kirk, Richard) (Entered: 03/28/2008)

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MEMORANDUM ORDER DENYING 25 MOTION for Reconsideration of Defendant RyMed Technologies, Inc.'s Motion for Reargument of Memorandum Order Denying Motion to Transfer Venue filed by RyMed Technologies Inc.. Signed by Judge Joseph J. Farnan, Jr. on 4/18/2008. (nms) (Entered: 04/22/2008) Letter to The Honorable Joseph J. Farnan, Jr. from Richard L. Horwitz, Esquire regarding the hearing on ICU's motion to stay or dismiss the second filed California litigation. (Horwitz, Richard) (Entered: 04/21/2008) MOTION for Pro Hac Vice Appearance of Attorney Laura L. Kohut of Kohut & Kohut LLP - filed by ICU Medical Inc.. (Horwitz, Richard) (Entered: 04/30/2008)

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PACER Service Center
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EXHIBIT I

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) ) ) ) ) ) )

ICU MEDICAL, INC., Plaintiff, v. RYMED TECHNOLOGIES, INC., Defendant.

Civil Action No. 07-468-JJF

DEFENDANT RYMED TECHNOLOGIES, INC.'S REPLY IN SUPPORT OF ITS MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. § 1404(a)

Richard D. Kirk Stephen B. Brauerman THE BAYARD FIRM 222 Delaware Avenue, Suite 900 P.O. Box 25130 Wilmington, DE 19899-5130 [email protected] (302) 655-5000 Attorneys for Defendant RYMED TECHNOLOGIES, INC. OF COUNSEL: Henry C. Bunsow K.T. Cherian Scott Wales HOWREY LLP 525 Market Street, Suite 3600 San Francisco, CA 94105 (415) 848-4900

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TABLE OF CONTENTS I. THE PRIVATE INTEREST FACTORS STRONGLY FAVOR TRANSFER TO THE CENTRAL DISTRICT OF CALIFORNIA BECAUSE THAT FORUM IS MORE CONVENIENT FOR RYMED, ICU, AND POTENTIAL WITNESSES. ..................................................................................... 2 THE PUBLIC INTEREST FACTORS STRONGLY FAVOR TRANSFER TO THE CENTRAL DISTRICT OF CALIFORNIA BECAUSE THERE IS BOTH PRIOR AND PENDING LITIGATION IN THAT FORUM INVOLVING THE PATENTS AT ISSUE IN THIS CASE.................................................................................................................................. 6 A. B. The Central District of California's Extensive Prior Analysis of the Patents Favors Transfer. ............................................................................................. 6 It Would Be Inefficient To Litigate This Dispute Separately From the Comprehensive Dispute Between the Parties Currently Pending in the Central District of California. .................................................. 8

II.

III.

CONCLUSION. ......................................................................................................................... 10

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TABLE OF AUTHORITIES CASES Bank of America v. S.I.P. Assets, LLC, Case No. CIVA 07-159 GMS, 2007 WL 2698192, at *3 (D. Del. Sept. 11, 2007).................................................................................................................................10 Brunswick Corp. v. Precor Inc., No. 00-691-GMS, 2000 WL 1876477, at * 2 (D. Del. Dec. 12, 2000)....................................3 Cashedge, Inc. v. Yodlee, Inc., No. Civ.A.06-170-JJF, 2006 WL 2038504, at * 2 (D. Del. July 19, 2006).......................................................................................................................................10 ICU Med., Inc. v. Alaris Med. Sys., Inc., Case No. CV-04-00689-MRP (C.D. Cal.) ...............................................................................8 IKOS Systems, Inc. v. Cadence Design Systems, Inc., No. Civ. A.02-1335-GMS, 2002 WL 31414136 (D. Del. 2002) .............................................3 In re Volkswagen of America, Inc., Case No. 07-40058, 2007 WL 3088142 (5th Cir. Oct. 24, 2007) ........................................6, 7 Jumara v. State Farm Ins. Co., 55 F. 3d 873, 879 (3d Cir. 1995) ..............................................................................................4 MedImmune, Inc. v. Genentech, Inc., 127 S. Ct. 764, 771 (1997) .......................................................................................................9 RyMed Tech., Inc. v. ICU Med., Inc., Case No. SACV07-1199 DOC MLGx (C.D. Cal.) ..................................................................9 S