IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

DMMEN GMBH & CO., Plaintiff v.

Civil Action No. 2:11-CV-686

JURY TRIAL DEMANDED SYNGENTA FLOWERS, INC., Defendant.

COMPLAINT Plaintiff Dmmen GmbH & Co. (hereinafter Dmmen), by and through their undersigned counsel, hereby alleges the following against Defendant Syngenta Flowers, Inc. (hereinafter Syngenta): 1. Syngenta has been and continues to manufacture, sell, import and/or offer for sale

growth cells having at least two cuttings from different plant species rooted together therein under the trademark Kwik Kombos (Kwik Kombos), thereby infringing Dmmens United States Patent Number 7,891,134 (the 134 Patent). Therefore, Syngenta is liable to Dmmen for damages because of this infringement, and should be permanently enjoined from manufacturing, selling, importing or offering to sell the Kwik Kombos or any other such product that infringes the 134 Patent. PARTIES 2. Upon information and belief, Syngenta is a Florida corporation having its

principal place of business at 6899 Winchester Circle, Suite 102, Boulder, Colorado. Page 1 of 8

3.

Dmmen is a foreign corporation having its principal place of business in

Rheinberg, Germany. JURISDICTION AND VENUE 4. Dmmen brings this action under 28 U.S.C. 2201, et seq., and the Patent Laws

of the United States, Title 35 of the United States Code. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331 and 1338. 5. Syngenta has and continues to manufacture, sell, import and/or offer for sale

Kwik Kombos. 6. 7. 8. Kwik Kombos infringes the 134 Patent. An actual controversy between the parties exists. Upon information and belief, Syngenta is a corporation authorized to transact

business in the State of Ohio. 9. Dmmen U.S.A., Inc. is a corporation organized under the laws of the State of

Ohio and has a principal place of business at 5544 Hilliard Rome Office Park, Hilliard, Ohio. 10. Dmmen U.S.A., Inc. is the United States operating company and sister company

of Dmmen, both being wholly owned subsidiaries of Capitol Green Europe GmbH. 11. Venue is appropriate pursuant to 28 U.S.C. 1391(b).

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SUMMARY OF FACTS 12. Syngenta manufactures, sells, offers for sale and/or imports into the United States

growth cells that contain two or more different species of plant rooted together in a single growth cell. 13. Syngenta manufactures, sells, offers for sale and/or imports into the United States

Kwik Kombos, which contain growth cells that contain two or more different species of plant rooted together in a single growth cell. 14. United States Patent Application Number 12/265,958 (the 958 Application)

was filed in the United States Patent and Trademark Office on November 6, 2008. 15. The United States Patent and Trademark Office examined the 958 Application

and issued the 134 Patent. 16. Exhibit A. 17. 18. 19. 20. A true and accurate copy of the 134 Patent is attached hereto as Exhibit B. Dmmen was the owner of the 958 Application. Dmmen is the owner of the 134 Patent. Dmmen manufactures, sells, offers for sale and/or imports into the United States A true and accurate copy of the 958 Application as published is attached as

growth cells that contain two or more different species of plant rooted together in a single growth cell under the trademark CONFETTI GARDEN.

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COUNT I: INFRINGEMENT OF THE 134 PATENT 21. Dmmen repeats and re-alleges each and every averment contained in paragraphs

1-20 hereof as though fully set forth herein. 22. 23. 24. The above-mentioned Syngenta growth cells infringe the 134 Patent. Dmmen has been and is being damaged by Syngentas infringement. Dmmen has suffered and will continue to suffer irreparable harm unless

Syngenta is enjoined from its infringing activity. 25. Syngenta willfully infringed and continues to infringe the 134 Patent. COUNT II: INFRINGEMENT OF THE 958 APPLICATION 26. Dmmen repeats and re-alleges each and every averment contained in paragraphs

1-20 hereof as though fully set forth herein. 27. During the pendency of the 958 Application, Syngenta manufactured, sold,

offered for sale or imported into the United States the above-described Syngenta growth cells. 28. The above-described Syngenta growth cells infringe the claims that were pending

in the 958 Application. 29. The claims in the 958 Application are substantially identical to the claims in the

134 Patent within the meaning of 35 U.S.C. 154(d)(2).

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30.

Upon information and belief, Syngenta had actual notice of the published 958

Application at the time it infringed the 958 Application. 31. Syngenta received a letter dated May 11, 2009 from The Webb Law Firm,

attorneys for Dmmen. 32. Application. COUNT III: SYNGENTA INDUCED THE INFRINGEMENT OF THE 134 PATENT 33. Dmmen repeats and re-alleges each and every averment contained in paragraphs In the letter dated May 11, 2009, Syngenta was advised about the 958

1-20 hereof as though fully set forth herein. 34. 35. Syngenta had knowledge of the 134 Patent. With the knowledge of the 134 Patent, Syngenta induced others to infringe the

134 Patent by providing the above-described growth cells to others, who incorporated the Syngenta growth cells into other products that were sold, offered for sale or imported in the United States. 36. The incorporation of the Syngenta growth cells into the above-described products

were the only reasonable end use of the above-described growth cells. 37. Syngenta knew or should have known that the growth cells it provided would

have been incorporated into these other products.

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COUNT IV: CONTRIBUTORY INFRINGEMENT 38. Dmmen repeats and re-alleges each and every averment contained in paragraphs

1-20 hereof as though fully set forth herein. 39. 40. 41. 42. Syngenta offered for sale and sold the Syngenta growth cells to others. These growth cells were made to be incorporated into horticultural products. There is no other suitable use for these growth cells. These growth cells were incorporated into horticultural products by others. WHEREFORE, Dmmen respectfully requests that this Court: A. Enjoin Syngenta, its officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise, from making, using, selling, offering to sell, importing, infringing growth cells, or otherwise engaging in acts of infringement of the 134 Patent; B. Award to Dmmen the actual damages suffered by Dmmen as the result of infringement by Syngenta of the 134 Patent but not less than a reasonable royalty; C. Award to Dmmen a reasonable royalty for Syngentas infringement of the 958 Application. D. Declare that Syngentas infringement is willful and award to Dmmen increased damages up to three times the actual damages, pursuant to 35 U.S.C. 284;

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E. Declare this action to be an exceptional case pursuant to 35 U.S.C. 285 and award to Dmmen its attorneys fees; F. Award to Dmmen its costs; and G. Grant to Dmmen such other and further relief as may be just and proper. JURY DEMAND Plaintiff demands trial by jury of all issues triable by jury.

Respectfully Submitted,

Dated: July 29, 2011

By:

/s/ Kirk M. Wall Kirk M. Wall (0061642) kirk.wall@dinslaw.com DINSMORE & SHOHL LLP 191 W. Nationwide Blvd., Suite 300 Columbus, OH 43215 Telephone: (614) 628-6880 Facsimile: (614) 628-6890 David A. Black david.black@dinslaw.com DINSMORE & SHOHL LLP 255 East Fifth Street, Suite 1900 Cincinnati, OH 45202 Telephone: (513) 977-8200 Facsimile: (513) 977-8141

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Of Counsel: Kent E. Baldauf, Jr., P.A. ID No. 70793 kbaldaufjr@webblaw.com Thomas C. Wolski, P.A. ID No. 203072 twolski@webblaw.com THE WEBB LAW FIRM, P.C. One Gateway Center 420 Ft. Duquesne Blvd, Suite 1200 Pittsburgh, PA 15222 Telephone: (412) 471-8815 Facsimile: (412) 471-4094 Attorneys for Plaintiff, Dmmen GmbH & Co.

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