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LATHAM & WATKINS LLP
Stephen P. Swinton (Bar No. 106398)
steve.swinton@lw.com
Darryl H. Steensma (Bar No. 221073)
darryl.steensma@lw.com
12636 High Bluff Drive, Suite 400
San Diego, CA 92130
Telephone: (858) 523-5400
Facsimile: (858) 523-5450
Attorneys for Plaintiff
CADENCE PHARMACEUTICALS, INC.
SCHWARTZ SEMERDJIAN BALLARD & CAULEY LLP
John S. Moot (Bar No. 106060)
johnm@ssbclaw.com
101 West Broadway, Suite 810
San Diego, CA 92101
Telephone: (619) 236-8821
Facsimile: (619) 236-8827
Attorneys for Plaintiff
SCR PHARMATOP
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CADENCE PHARMACEUTICALS, INC.
and SCR PHARMATOP,
Plaintiffs,
v.
FRESENIUS KABI USA, LLC,
Defendant.
CASE NO.

COMPLAINT FOR PATENT
INFRINGEMENT
'13CV0139 MDD LAB
Case 3:13-cv-00139-LAB-MDD Document 1 Filed 01/17/13 Page 1 of 37
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1
COMPLAINT
Plaintiffs Cadence Pharmaceuticals, Inc. and SCR Pharmatop (collectively,
Plaintiffs) for their Complaint against defendant Fresenius Kabi USA, LLC
(Fresenius), allege as follows:
PARTIES
1. Plaintiff Cadence Pharmaceuticals, Inc. (Cadence) is a corporation
organized and existing under the laws of the State of Delaware, having a principal place
of business at 12481 High Bluff Drive, Suite 200, San Diego, California, 92130. As set
forth herein, Cadence is the exclusive licensee of the Patents-in-Suit.
2. Plaintiff SCR Pharmatop (Pharmatop) is a civil law partnership organized
and existing under the laws of France, having its headquarters at 10, Square St. Florentin,
78150 Le Chesnay, France. As set forth herein, Pharmatop is the assignee of the Patents-
in-Suit.
3. Upon information and belief, defendant Fresenius is a limited liability
company organized and existing under the laws of Delaware, having a principal place of
business at 1501 East Woodfield Road, Suite 300 East, Schaumburg, Illinois, 60173.
Upon information and belief, Fresenius is in the business of manufacturing, distributing,
and selling pharmaceutical products throughout the United States, including in this
judicial district.
NATURE OF THE ACTION
4. This is a civil action for infringement of United States Patent No. 6,028,222
and U.S. Patent No. 6,992,218 (collectively, the Patents-in-Suit). This action is based
upon the Patent Laws of the United States, 35 U.S.C. 100 et seq.
JURISDICTION AND VENUE
5. This Court has jurisdiction over the subject matter of this action pursuant to
28 U.S.C. 1331 and 1338(a).
6. This Court has personal jurisdiction over Fresenius because, inter alia,
Fresenius has committed, or aided, abetted, actively induced, contributed to, or
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participated in the commission of a tortious act of patent infringement that has led to
foreseeable harm and injury to Cadence, a company with its principal place of business in
this forum. This Court has personal jurisdiction over Fresenius for the additional reasons
set forth below and for other reasons that will be presented to the Court if such
jurisdiction is challenged.
7. This Court has personal jurisdiction over Fresenius because, inter alia,
Fresenius has purposefully availed itself of the rights and benefits of California law by
engaging in systematic and continuous contacts with California.
8. Upon information and belief, Fresenius regularly and continuously
transacts business within the State of California, including by selling pharmaceutical
products in California. Upon information and belief, Fresenius derives substantial
revenue from the sale of those products in California and has availed itself of the
privilege of conducting business within the State of California.
9. Venue is proper in this Court pursuant to 28 U.S.C. 1391 and 28 U.S.C.
1400(b).
THE PATENTS-IN-SUIT
10. United States Patent No. 6,028,222 (the 222 patent), titled Stable
Liquid Paracetamol Compositions, and Method for Preparing the Same, was duly and
legally issued by the United States Patent and Trademark Office (PTO) on
February 22, 2000, to Pharmatop, the assignee of the named inventors. Pharmatop has
been, and continues to be, the sole assignee of the 222 patent.
11. Pharmatop granted an exclusive license to the 222 patent to Bristol-Myers
Squibb Company (BMS), with a right to sublicense. BMS in turn granted Cadence an
exclusive sublicense, exclusive even to itself, to the 222 patent with regard to all rights
pertinent to this action. A true and correct copy of the 222 patent is attached as
Exhibit A.
12. United States Patent No. 6,992,218 (the 218 patent), titled Method for
Obtaining Aqueous Formulations of Oxidation-Sensitive Active Principles, was duly
Case 3:13-cv-00139-LAB-MDD Document 1 Filed 01/17/13 Page 3 of 37
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and legally issued by the PTO on January 31, 2006, to Pharmatop, the assignee of the
named inventors. Pharmatop has been, and continues to be, the sole assignee of the 218
patent.
13. Pharmatop granted an exclusive license to the 218 patent to BMS, with a
right to sublicense. BMS in turn granted Cadence an exclusive sublicense, exclusive
even to itself, to the 218 patent with regard to all rights pertinent to this action. A true
and correct copy of the 218 patent is attached as Exhibit B.
OFIRMEV
14. Cadence holds approved New Drug Application (NDA) No. 022450 for
OFIRMEV, the first and only intravenous (IV) formulation of acetaminophen available
in the United States. OFIRMEV was approved by the Food and Drug Administration
(the FDA) on November 2, 2010. OFIRMEV is indicated for the treatment of mild to
moderate pain, management of moderate to severe pain with adjunctive opioid
analgesics, and reduction of fever.
15. The publication Approved Drug Products with Therapeutic Equivalence
Evaluations (the Orange Book) identifies drug products approved on the basis of
safety and effectiveness by the FDA under the Federal Food, Drug, and Cosmetic Act.
Pursuant to 21 U.S.C. 355(b)(1) and attendant FDA regulations, the 222 patent and the
218 patent were listed in the Orange Book with respect to OFIRMEV.
FRESENIUSS INFRINGEMENT OF THE PATENTS-IN-SUIT
16. Upon information and belief, Fresenius submitted New Drug Application
(NDA) No. 20-4767 to the FDA, under the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 355(b)), seeking approval to engage in the commercial manufacture, use, sale or
offer for sale, and/or importation of Acetaminophen Injection, 10 mg/mL, 100 mL vials
(Freseniuss Generic Product), as a generic version of the OFIRMEV product, prior
to the expiration of the Patents-in-Suit.
17. By a letter dated December 5, 2012 (the Fresenius Letter), Fresenius
stated that it had submitted NDA No. 20-4767 seeking approval to engage in the
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commercial manufacture, use, sale or offer for sale, and/or importation of Freseniuss
Generic Product prior to the expiration of the Patents-in-Suit.
18. The Fresenius Letter also stated that NDA No. 20-4767 contains a
Paragraph IV certification that alleges the 222 patent and 218 patent are invalid,
unenforceable, and that Freseniuss Generic Product purportedly will not infringe any
valid claim of the 222 patent and the 218 patent.
19. Upon information and belief, Fresenius has represented to the FDA that
Freseniuss Generic Product will have the same active ingredient as OFIRMEV, have
the same route of administration, dosage form, and strength as OFIRMEV, and is
bioequivalent to OFIRMEV.
20. Freseniuss submission of NDA No. 20-4767 to the FDA, including its
section 355(b)(2)(A)(iv) allegations, constitutes infringement of the Patents-in-Suit under
35 USC 271(e)(2)(A). Moreover, in the event that Fresenius commercially
manufactures, imports, uses, offers for sale, or sells Freseniuss Generic Product or
induces or contributes to such conduct, said actions would constitute infringement of the
Patents-in-Suit under 35 USC 271(a), (b) and/or (c).
21. Fresenius was aware of the Patents-in-Suit prior to filing NDA No.
20-4767, and its actions render this an exceptional case under 35 U.S.C. 285.
22. The acts of infringement by the Fresenius set forth above will cause
Plaintiffs irreparable harm for which they have no adequate remedy at law, and will
continue unless enjoined by this Court.
COUNT I
(Infringement of the 222 Patent by Fresenius)
23. Plaintiffs incorporate each of the preceding paragraphs 1 to 22 as if fully
set forth herein.
24. Freseniuss submission of NDA No. 20-4767, including its
355(b)(2)(A)(iv) allegations, constitutes infringement of the 222 patent pursuant to 35
U.S.C. 271(e)(2) by Fresenius.
Case 3:13-cv-00139-LAB-MDD Document 1 Filed 01/17/13 Page 5 of 37
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25. On information and belief, upon FDA approval of NDA No. 20-4767,
Fresenius will infringe the 222 patent by making, using, offering to sell, or selling
Freseniuss Generic Product in the United States and/or importing Freseniuss Generic
Product into the United States, and by actively inducing and/or contributing to
infringement by others, in violation of 35 U.S.C. 271(a), (b) and/or (c).
26. Upon information and belief, Fresenius had actual and constructive
knowledge of the 222 patent prior to filing NDA No. 20-4767 and acted without a
reasonable basis for a good faith belief that it would not be liable for infringing the 222
patent.
COUNT II
(Declaratory Judgment of Infringement of the 222 Patent by Fresenius)
27. Plaintiffs incorporate each of the preceding paragraphs 1 to 22 as if fully
set forth herein.
28. This claim arises under the Declaratory Judgment Act, 28 U.S.C. 2201
and 2202.
29. Plaintiffs are further entitled to a declaration that, if Fresenius, prior to
patent expiry, commercially manufactures, uses, offers for sale, or sells Freseniuss
Generic Product within the United States, imports Freseniuss Generic Product into the
United States, or induces or contributes to such conduct, Fresenius would infringe the
222 patent under 35 U.S.C. 271(a), (b) and/or (c).
30. Plaintiffs will be irreparably harmed by Freseniuss infringing activities
unless those activities are enjoined by this Court. Plaintiffs do not have an adequate
remedy at law.
COUNT III
(Infringement of the 218 Patent by Fresenius)
31. Plaintiffs incorporate each of the preceding paragraphs 1 to 22 as if fully
set forth herein.
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32. Freseniuss submission of NDA No. 20-4767, including its section
355(b)(2)(A)(iv) allegations, constitutes infringement of the 218 patent pursuant to
35 U.S.C. 271(e)(2) by Fresenius.
33. On information and belief, upon FDA approval of NDA No. 20-4767,
Fresenius will infringe the 218 patent by making, using, offering to sell, or selling
Freseniuss Generic Product in the United States and/or importing Freseniuss Generic
Product into the United States, and by actively inducing and/or contributing to
infringement by others, in violation of 35 U.S.C. 271(a), (b) and/or (c).
34. Upon information and belief, Fresenius had actual and constructive
knowledge of the 218 patent prior to filing NDA No. 20-4767 and acted without a
reasonable basis for a good faith belief that it would not be liable for infringing the 218
patent.
COUNT IV
(Declaratory Judgment of Infringement of the 218 Patent by Fresenius)
35. Plaintiffs incorporate each of the preceding paragraphs 1 to 22 as if fully
set forth herein.
36. This claim arises under the Declaratory Judgment Act, 28 U.S.C. 2201
and 2202.
37. Plaintiffs are further entitled to a declaration that, if Fresenius, prior to
patent expiry, commercially manufactures, uses, offers for sale, or sells Freseniuss
Generic Product within the United States, imports Freseniuss Generic Product into the
United States, or induces or contributes to such conduct, Fresenius would infringe the
218 patent under 35 U.S.C. 271(a), (b) and/or (c).
38. Plaintiffs will be irreparably harmed by Freseniuss infringing activities
unless those activities are enjoined by this Court. Plaintiffs do not have an adequate
remedy at law.
Case 3:13-cv-00139-LAB-MDD Document 1 Filed 01/17/13 Page 7 of 37
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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request the following relief:
A. A judgment that Fresenius infringed each of the Patents-In-Suit;
B. An order issued pursuant to 35 U.S.C. 271(e)(4) that the effective date of
any approval of Freseniuss NDA No. 20-4767 shall not be earlier than the expiration
dates of the Patents-in-Suit, including any extensions and/or additional periods of
exclusivity to which Plaintiffs are or become entitled;
C. A preliminary and permanent injunction restraining and enjoining Fresenius
and its officers, agents, attorneys and employees, and those acting in privity or concert
with them, from engaging in the commercial manufacture, use, offer to sell or sale within
the United States, or importation into the United States of any of Freseniuss Generic
Product until the expiration of the Patents-in-Suit, including any extensions and/or
additional periods of exclusivity to which Plaintiffs are or become entitled;
D. That Plaintiffs be awarded monetary relief if Fresenius commercially
manufactures, uses, offers for sale, or sells its generic version of Cadences OFIRMEV
brand product, or any other product that infringes or induces or contributes to the
infringement of the Patents-in-Suit, within the United States before the latest expiration
date of any of the Patents-In-Suit, including any extensions and/or additional periods of
exclusivity to which Plaintiffs are or become entitled;
E. A declaration that this is an exceptional case and an award of attorneys
fees pursuant to 35 U.S.C. 285;
F. An award of costs and expenses in this action; and
G. Such other and further relief as the Court may deem just and proper.
/ / /
/ / /
/ / /
/ / /
/ / /
Case 3:13-cv-00139-LAB-MDD Document 1 Filed 01/17/13 Page 8 of 37
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Dated: January 17, 2013 LATHAM & WATKINS LLP
By: s/ Stephen P. Swinton
Stephen P. Swinton
Darryl H. Steensma

Attorneys for Plaintiff
Cadence Pharmaceuticals, Inc.
SCHWARTZ SEMERDJIAN BALLARD &
CAULEY LLP
By: s/John S. Moot (w/permission)
John S. Moot

Attorneys for Plaintiff
SCR PHARMATOP

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JS 44 (Rev. 12/12)
CIVIL COVER SHEET
The JS 44 civil cover sheet and the inIormation contained herein neither replace nor supplement the Iiling and service oI pleadings or other papers as required by law, except as
provided by local rules oI court. This Iorm, approved by the Judicial ConIerence oI the United States in September 1974, is required Ior the use oI the Clerk oI Court Ior the
purpose oI initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
(b) County oI Residence oI First Listed PlaintiII County oI Residence oI First Listed DeIendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
u 1 U.S. Government u 3 Federal Question PTF DEF PTF DEF
PlaintiII (U.S. Government Not a Party) Citizen oI This State u 1 u 1 Incorporated or Principal Place u 4 u 4
oI Business In This State
u 2 U.S. Government u 4 Diversity Citizen oI Another State u 2 u 2 Incorporated and Principal Place u 5 u 5
DeIendant (Indicate Citizenship of Parties in Item III) oI Business In Another State
Citizen or Subject oI a u 3 u 3 Foreign Nation u 6 u 6
Foreign Country
IV. NATURE OF SUIT (Place an X in One Box Only)
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
u 110 Insurance PERSONAL INJURY PERSONAL INJURY u 625 Drug Related Seizure u 422 Appeal 28 USC 158 u 375 False Claims Act
u 120 Marine u 310 Airplane u 365 Personal Injury - oI Property 21 USC 881 u 423 Withdrawal u 400 State Reapportionment
u 130 Miller Act u 315 Airplane Product Product Liability u 690 Other 28 USC 157 u 410 Antitrust
u 140 Negotiable Instrument Liability u 367 Health Care/ u 430 Banks and Banking
u 150 Recovery oI Overpayment u 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS u 450 Commerce
& EnIorcement oI Judgment Slander Personal Injury u 820 Copyrights u 460 Deportation
u 151 Medicare Act u 330 Federal Employers` Product Liability u 830 Patent u 470 Racketeer InIluenced and
u 152 Recovery oI DeIaulted Liability u 368 Asbestos Personal u 840 Trademark Corrupt Organizations
Student Loans u 340 Marine Injury Product u 480 Consumer Credit
(Excludes Veterans) u 345 Marine Product Liability LABOR SOCIAL SECURITY u 490 Cable/Sat TV
u 153 Recovery oI Overpayment Liability PERSONAL PROPERTY u 710 Fair Labor Standards u 861 HIA (1395II) u 850 Securities/Commodities/
oI Veteran`s BeneIits u 350 Motor Vehicle u 370 Other Fraud Act u 862 Black Lung (923) Exchange
u 160 Stockholders` Suits u 355 Motor Vehicle u 371 Truth in Lending u 720 Labor/Management u 863 DIWC/DIWW (405(g)) u 890 Other Statutory Actions
u 190 Other Contract Product Liability u 380 Other Personal Relations u 864 SSID Title XVI u 891 Agricultural Acts
u 195 Contract Product Liability u 360 Other Personal Property Damage u 740 Railway Labor Act u 865 RSI (405(g)) u 893 Environmental Matters
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u 210 Land Condemnation u 440 Other Civil Rights Habeas Corpus: Income Security Act u 870 Taxes (U.S. PlaintiII Act/Review or Appeal oI
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u 245 Tort Product Liability Accommodations u 530 General
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Employment Other: u 462 Naturalization Application
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Other u 550 Civil Rights Actions
u 448 Education u 555 Prison Condition
u 560 Civil Detainee -
Conditions oI
ConIinement
V. ORIGIN (Place an X in One Box Only)
u 1 Original
Proceeding
u 2 Removed Irom
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Appellate Court
u 4 Reinstated or
Reopened
u 5 TransIerred Irom
Another District
(specify)
u 6 Multidistrict
Litigation
VI. CAUSE OF ACTION
Cite the U.S. Civil Statute under which you are Iiling (Do not cite jurisdictional statutes unless diversity):

BrieI description oI cause:
VII. REQUESTED IN
COMPLAINT:
u CHECK IF THIS IS A CLASS ACTION
UNDER RULE 23, F.R.Cv.P.
DEMAND $ CHECK YES only iI demanded in complaint:
JURY DEMAND: u Yes u No
VIII. RELATED CASE(S)
IF ANY
(See instructions):
JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
CADENCE PHARMACEUTICALS, INC.
SCR PHARMATOP
San Diego, CA
See attachment hereto
FRESENIUS KABI USA, LLC
35 U.S.C. 100, et seq
Civil action for infringement of U.S. Patent No. 6,028,222 and U.S. Patent No. 6,992,218
01/17/2013 s/ Stephen P. Swinton
'13CV0139 MDD LAB
; 35:145
Case 3:13-cv-00139-LAB-MDD Document 1 Filed 01/17/13 Page 36 of 37
CIVIL COVER SHEET
ATTACHMENT



I. (c) ATTORNEYS FOR PLAINTIFFS

LATHAM & WATKINS LLP
Stephen P. Swinton (Bar No. 106398)
steve.swinton@lw.com
Darryl H. Steensma (Bar No. 221073)
darryl.steensma@lw.com
12636 High Bluff Drive, Suite 400
San Diego, CA 92130
Telephone: (858) 523-5400
Facsimile: (858) 523-5450
Attorneys for Plaintiff
Cadence Pharmaceuticals, Inc.
SCHWARTZ SEMERDJIAN BALLARD & CAULEY LLP
John S. Moot (Bar No. 106060)
johnm@ssbclaw.com
101 West Broadway, Suite 810
San Diego, CA 92101
Telephone: (619) 236-8821
Facsimile: (619) 236-8827
Attorneys for Plaintiff
SCR PHARMATOP

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