UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

THEROX, INC., a Delaware corporation, and DYNAMOX, INC., a Delaware corporation, Plaintiffs, v. BLISSFIELD MANUFACTURING COMPANY, a Michigan corporation, VILLAGE OF BLISSFIELD, a Michigan municipality, BIODRI MICHIGAN, LLC, a Michigan limited liability company, GREENER PLANET SOLUTIONS, a Michigan company, LAPIN SEPTIC TANK SERVICE, INC., a Florida corporation, BIODRI, LLC, a Florida limited liability company, E-MEDIA SOLUTIONS, INC., an Ohio corporation, E-MEDIA SOLUTIONS OF CENTRAL FLORIDA, INC., a Florida corporation, DENNIS J. LAPIN, an individual, PAUL JEPSON, an individual, and PATRICK D. FARVER, an individual, Defendants. Case No. _____________

COMPLAINT AND DEMAND FOR JURY TRIAL

Come now Plaintiffs TherOx, Inc. and DynamOx, Inc. for their Complaint against Defendants Blissfield Manufacturing Company, Village of Blissfield, BioDri Michigan, LLC, Greener Planet Solutions, Lapin Septic Tank Service, Inc., BioDri, LLC, E-Media Solutions, Inc., E-Media Solutions of Central Florida, Inc., Dennis J. Lapin, Paul Jepson, and Patrick D. Farver, allege as follows:
Nature of the Action

1.

This action arises under the Patent Laws of the United States, Title 35,

United States Code, particularly Sections 271 and 281-285. 2. This action also arises under the Lanham Trademark Act of 1946, as

amended (the Lanham Act), Title 15, United States Code, particularly Sections 1114 and 1125(a).

Jurisdiction and Venue 3. This Court has jurisdiction over this action under Title 15, United States

Code, Section 1121, and Title 28, United States Code, Sections 1331, 1332, 1338 and 1367. 4. Venue is proper in this Judicial District under Title 28, United States Code,

Sections 1391, 1392 and 1400. 5. Defendants have substantial contacts with the forum as a result of pervasive

business activities conducted within the State of Michigan and within this Judicial District, including but not limited to the selling or offering for sale and advertising the sales of products, or providing or offering to provide and advertising services that use such products, for waste water treatment under the trademark of DynamOx. 6. Defendants have committed acts of patent infringement, directly and/or

through agents and intermediaries, by offering for sale, and/or selling certain infringing

products, or providing or offering to provide services that use such infringing products, in the State of Michigan and particularly within this Judicial District. 7. Defendants have purposefully and voluntarily placed their infringing

products into the stream of commerce with the expectation that they will be purchased by consumers in the State of Michigan and particularly in this Judicial District, who in turn will use the products in an infringing manner in this Judicial District. 8. Defendants have committed acts of federal trademark infringement and

unfair competition, directly and/or through agents and intermediaries, by advertising for sale of certain products, and advertising for providing services that use such products, under an infringing mark, in the State of Michigan and particularly within this Judicial District.

The Parties 9. Plaintiff TherOx, Inc. (TherOx) is a Delaware corporation having its

principal place of business located at 17500 Cartwright Road, Suite 100, Irvine, California 92614-5846. 10. Plaintiff DynamOx, Inc. (DynamOx) (hereafter TherOx and DynamOx

are collectively referred to as Plaintiffs) is a Delaware corporation having its principal place of business located at 17500 Cartwright Road, Suite 100, Irvine, California 926145846. 11. TherOx is a privately held company, and DynamOx is a wholly-owned

subsidiary of Therox. Neither TherOx nor DynamOx is affiliated with any publicly owned entity. 12. On information and belief, Defendant Blissfield Manufacturing Company

(BMC) is a company having its principal place of business located at 626 Depot Street, Blissfield, Michigan 49228, and at all times relevant herein has been doing business within this Judicial District.
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13.

On information and belief, Defendant Village of Blissfield (Village) is a

municipality having its principal place of business located at 408 East Adrian Street, Blissfield, Michigan 49228, and at all times relevant herein has been doing business within this Judicial District. 14. On information and belief, Defendant BioDri Michigan, LLC (BioDri

Michigan) is a limited liability company having its principal place of business located at 30600 Telegraph Road, Suite 2345, Bingham Farms, Michigan 48025, and at all times relevant herein has been doing business within this Judicial District. 15. On information and belief, Defendant Greener Planet Solutions (GPS) is

a company having its principal place of business located at 324 Sherman Street, Blissfield, Michigan 49228, and at all times relevant herein has been doing business within this Judicial District. 16. On information and belief, Defendant Lapin Septic Tank Service, Inc.

(LSTS) is a corporation having its principal place of business located at 3031 West 40th Street, Orlando, Florida 32839, and at all times relevant herein has been doing business within this Judicial District. 17. On information and belief, Defendant BioDri, LLC (BioDri) is a limited

liability company having its principal place of business located at 3031 West 40th Street, Orlando, Florida 32839, and at all times relevant herein has been doing business within this Judicial District. 18. On information and belief, Defendant E-Media Solutions, Inc. (EMS) is a

corporation having its principal place of business located at 111 Legends Lane, Marblehead, Ohio 43440, and at all times relevant herein has been doing business within this Judicial District. 19. On information and belief, Defendant E-Media Solutions of Central

Florida, Inc. (EMS Florida) is a corporation having its principal place of business

located at 3416 Gulf Breeze Pkwy, Gulf Breeze, Florida 32561, and at all times relevant herein has been doing business within this Judicial District. 20. On information and belief, Defendant Dennis J. Lapin (Lapin) is an

individual having his principal place of business located at 3031 West 40th Street, Orlando, Florida 32839, and at all times relevant herein has been doing business within this Judicial District. 21. On information and belief, Defendant Paul Jepson (Jepson) is an

individual and having his principal place of business located at 3031 West 40th Street, Orlando, Florida 32839, and at all times relevant herein has been doing business within this Judicial District. 22. On information and belief, Defendant Patrick A. Farver (Farver) is an

individual and having his principal place of business located at 626 Depot Street, Blissfield, Michigan 49228, and at all times relevant herein has been doing business within this Judicial District.

Plaintiffs Intellectual Property 23. On October 29, 1996, United States Patent No. 5,569,180 (the 180

Patent) was issued for Method for Delivering a Gas-Supersaturated Fluid to a GasDepleted Site and Use Thereof. A true and correct copy of the 180 Patent is attached hereto as Exhibit A and made a part hereof. 24. On April 7, 1998, United States Patent No. 5,735,934 (the 934 Patent)

was issued for Method for Delivering a Gas-Supersaturated Fluid to a Gas-Depleted Site and Use Thereof. A true and correct copy of the 934 Patent is attached hereto as Exhibit B and made a part hereof. 25. On February 5, 2002, United States Patent No. 6,344,489 (the 489

Patent) was issued for Stabilized Gas-Enriched and Gas-Supersaturated Liquids. A

true and correct copy of the 489 Patent is attached hereto as Exhibit C and made a part hereof. 26. On April 29, 2003, United States Patent No. 6,555,059 (the 059 Patent)

was issued for Method of Forming Gas-Enriched Fluid. A true and correct copy of the 059 Patent is attached hereto as Exhibit D and made a part hereof. 27. On March 7, 2006, United States Patent No. 7,008,535 (the 535 Patent)

was issued for Apparatus and Method for Oxygenating Wastewater. A true and correct copy of the 535 Patent is attached hereto as Exhibit E and made a part hereof. 28. On November 13, 2007, United States Patent No. 7,294,278 (the 278

Patent) was issued for Method for Oxygenating Wastewater. A true and correct copy of the 278 Patent is attached hereto as Exhibit F and made a part hereof. 29. TherOx is an exclusive licensee of the 180, 934 and 489 Patents, with

substantive rights in and to these patents, including the right to prosecute this action and enforce these patents against infringers, and to collect damages for all relevant times. 30. TherOx is the owner of the 059 Patent, with substantive rights in and to the

059 Patent, including the right to prosecute this action and enforce the patent against infringers, and to collect damages for all relevant times. 31. TherOx and DynamOx are two of the three co-owners of the 535 and 728

Patents (hereafter the 180, 934, 489, 059, 535 and 728 Patents are collectively referred to as the Patents-in-suit), with substantive rights in and to the 535 and 728 Patents, including the right to prosecute this action and enforce these patents against infringers, and to collect damages for all relevant times. 32. As it pertains to this lawsuit, the Patents-in-suit generally relate to methods

and apparatuses that are applicable for treating wastewater by oxygenating the wastewater.

33.

On July 29, 2003, United States Trademark Registration No. 2,745,068

(the 068 Registration) was issued for DynamOx. A true and correct copy of the 068 Registration is attached hereto as Exhibit G and made a part hereof. 34. DynamOx is the owner of the 068 Registration for DynamOx (hereafter

the 068 Registration is referred to as the Trademark-in-suit), with substantive rights in and to the trademark, including the right to prosecute this action and enforce the 068 Registration against infringers, and to collect damages for all relevant times. 35. DynamOx is also conducting its business of advertising, promoting,

offering for sale and selling its products and services for wastewater treatment on an Internet domain www.dynamox.capitalenergyholdings.com (hereafter Plaintiff

DynamOxs website).

DynamOx has substantive rights in the original design,

appearance and graphic and text contents of the DynamOx website.

Defendants Infringing Activities 36. On information and belief, Defendants BMC, BioDri Michigan, GPS,

LSTS and BioDri are all closely inter-related and affiliated companies acting in concert for a common scheme: Defendant Lapin is both an owner and president of Defendant LSTS, and an owner of Defendants BioDri Michigan and BioDri; Defendant Jepson is also an owner of BioDri Michigan and BioDri; Defendant BioDri Michigan is doing business as Defendant GPS; Defendant GPS is also known as BioDri Michigan; and Defendant BMC is Defendant GPS manufacturing arm. 37. On information and belief, Defendants BMC, BioDri Michigan, GPS,

LSTS and BioDri directly or through intermediaries, and acting as agent for each other, made, had made, used, provided, supplied, distributed, sold, and/or offered for sale wastewater treatment products and/or systems, including but not limited to Defendant LSTS DO Aeration Systems and Defendant GPS PrO2 Series, infringed or, when used together with the wastewater treatment service they provide, infringed one or more
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claims of the Patents-in-suit.

Defendant BioDri Michigan is doing business as

Defendants GPS, and Defendant BMC is manufacturing the hardware and equipment for Defendant GPS. In addition, Defendants BMC, BioDri Michigan, GPS, LSTS and

BioDri induced infringement and/or contributed to the infringement of one or more of the claims of the Patents-in-suit by others. 38. On information and belief, although marketed by different Defendants,

including but not limited to GPS and LSTS, under various names, all Defendants infringing wastewater treatment products and/or systems are manufactured by Defendant BMC and have substantially the same design, construction and/or functionalities that infringe one or more claims of the Patents-in-suit. 39. On information and belief, Defendant Village has used or is using

wastewater treatment products and/or systems, including but not limited to Defendants BMC, BioDri Michigan and GPS Ox 159 System, which infringes one or more claims of the Patents-in-suit. In addition, by ordering, purchasing and using the Ox 159 System, Defendant Village induced infringement and/or contributed to the infringement of one or more of the claims of the Patents-in-suit by Defendants BMC, BioDri Michigan and GPS. 40. On information and belief, Defendants Lapin, Jepson and Farver

personally, and acting as agent for each other, took part in the commission of the patent infringement by Defendants BMC, BioDri Michigan, GPS, LSTS and BioDri and specifically engaged themselves and directed other officers or employees of Defendants BMC, BioDri Michigan, GPS, LSTS and BioDri to commit the infringement act. 41. On information and belief, Defendants Lapin, Jepson and Farver personally

induced patent infringement as they specifically intended to encourage Defendants BMC, BioDri Michigan, GPS, LSTS and BioDris patent infringement and actively and knowingly intended to aid and abet the patent infringement by Defendants BMC, BioDri Michigan, GPS, LSTS and BioDri.

42.

Defendant BioDri Michigan is also doing business as Defendant GPS,

which in turn is doing business under a trade-name and mark of DynamOx. Defendants BioDri Michigan and GPS have committed acts of federal trademark infringement and unfair competition, directly and/or through agents and intermediaries, by advertising for sale of their infringing products, and advertising for providing services that use such products, under an infringing mark DynamOx. 43. Defendant EMS and/or EMS Florida is the registrant of an Internet web-site

with the domain name of www.dynamoxgps.com, which is used and operated by Defendants BioDri Michigan and GPS for advertising, selling and offering for sale of its products and also advertising and offering its services that use such products on that website and under the infringing mark DynamOx. Defendants EMS and EMS

Floridas activities in connection with the www.dynamoxgps.com has at least contributed to and/or induced the patent infringement by others. 44. Defendants BioDri Michigan and GPS are using the

www.dynamoxgps.com website and Defendant LSTS and BioDri are using another Internet web-site with the domain name of www.lapinservices.com (hereafter the websites www.dynamoxgps.com and www/lapinservices.com are collectively referred to as Defendants websites) to advertise, promote, sell and offer for sale their products and services by using substantially similar design, appearance, graphic and text contents, including verbatim languages, that were copied from Plaintiff DynamOxs website, without Plaintiff DynamOxs consent or authorization. 45. Defendants patent and trademark infringing actions were and are without

the consent or authority of the Plaintiffs. 46. Defendants have been previously put on notice of Plaintiffs Patents-in-suit.

The infringement of the Patents-in-suit by Defendants is willful.

47.

On information and belief, Defendants (or their agents or alter egos) had

prior knowledge of Plaintiff DynamOx Trademark-in-suit. The infringement of the Trademark-in-suit by Defendants is also willful. 48. This is an exceptional case and, accordingly, Plaintiffs are entitled to

enhanced damages and their attorneys fees pursuant to Title 35, United States Code, Sections 284 and 285 and Title 15, United States Code, Section 1117. 49. Plaintiffs, collectively and individually, have suffered irreparable injury for

which there is no adequate remedy at law as a result of Defendants infringement of the Patents-in-suit and Trademark-in-suit. Pursuant to Title 35, United States Code, Section 283 and Title 15, United States Code, Section 1116, Plaintiffs are entitled to an injunction against further infringement by an order preventing Defendants from selling any of Defendants infringing products or providing services that use Defendants infringing product or advertising any products or services under the infringing DynamOx mark. 50. Defendants unauthorized copying of Plaintiff DynamOxs website design,

appearance and contents constitutes willful copyright infringement, which has caused, and unless enjoined will continue to cause, irreparable injury to Plaintiff DynamOx. FIRST CAUSE OF ACTION Infringement of the 180 Patent
[35 U.S.C. 271] (Against All Defendants)

51.

Plaintiffs repeat, reallege and reaver all of their allegations contained in the

above Paragraphs 1 through 50, Inclusive, and incorporate these allegations herein by reference. 52. Plaintiff TherOx is the exclusive licensee of the 180 Patent and has right to

prosecute this action and enforce the 180 Patent against infringers, and to collect damages for all relevant times.

53.

On information and belief, Defendants have infringed and are infringing the

180 Patent by making, using, offering to sell, or selling their infringing products or providing or offering to provide services that use such infringing products within the United States, in violation of Title 35, United States Code, Section 271. 54. On information and belief, Defendants Lapin, Jepson and Farver have

infringed and are infringing the 180 Patent by personally taking part in the commission of the patent infringement by the other defendants and specifically by engaging themselves and directing other officers or employees of the other defendants to commit the patent infringement act, and by personally inducing patent infringement as they specifically intended to encourage the other defendants patent infringement and actively and knowingly intended to aid and abet the patent infringement by the other defendants. 55. On information and belief, unless enjoined, Defendants will continue to

infringe the 180 Patent. SECOND CAUSE OF ACTION Infringement of the 934 Patent
[35 U.S.C. 271] (Against All Defendants)

56.

Plaintiffs repeat, reallege and reaver all of their allegations contained in the

above Paragraphs 1 through 55, Inclusive, and incorporate these allegations herein by reference. 57. Plaintiff TherOx is the exclusive licensee of the 934 Patent and has right to

prosecute this action and enforce the 934 Patent against infringers, and to collect damages for all relevant times. 58. On information and belief, Defendants have infringed and are infringing the

934 Patent by making, using, offering to sell, or selling their infringing products or providing or offering to provide services that use such infringing products within the United States, in violation of Title 35, United States Code, Section 271.
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59.

On information and belief, Defendants Lapin, Jepson and Farver have

infringed and are infringing the 934 Patent by personally taking part in the commission of the patent infringement by the other defendants and specifically by engaging themselves and directing other officers or employees of the other defendants to commit the patent infringement act, and by personally inducing patent infringement as they specifically intended to encourage the other defendants patent infringement and actively and knowingly intended to aid and abet the patent infringement by the other defendants. 60. On information and belief, unless enjoined, Defendants will continue to

infringe the 934 Patent. THIRD CAUSE OF ACTION Infringement of the 489 Patent
[35 U.S.C. 271] (Against All Defendants)

61.

Plaintiffs repeat, reallege and reaver all of their allegations contained in the

above Paragraphs 1 through 60, Inclusive, and incorporate these allegations herein by reference. 62. Plaintiff TherOx is the exclusive licensee of the 489 Patent and has right to

prosecute this action and enforce the 489 Patent against infringers, and to collect damages for all relevant times. 63. On information and belief, Defendants have infringed and are infringing the

489 Patent by making, using, offering to sell, or selling their infringing products or providing or offering to provide services that use such infringing products within the United States, in violation of Title 35, United States Code, Section 271. 64. On information and belief, Defendants Lapin, Jepson and Farver have

infringed and are infringing the 489 Patent by personally taking part in the commission of the patent infringement by the other defendants and specifically by engaging themselves and directing other officers or employees of the other defendants to commit
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the patent infringement act, and by personally inducing patent infringement as they specifically intended to encourage the other defendants patent infringement and actively and knowingly intended to aid and abet the patent infringement by the other defendants. 65. On information and belief, unless enjoined, Defendants will continue to

infringe the 489 Patent. FOURTH CAUSE OF ACTION Infringement of the 059 Patent
[35 U.S.C. 271] (Against All Defendants)

66.

Plaintiffs repeat, reallege and reaver all of their allegations contained in the

above Paragraphs 1 through 65, Inclusive, and incorporate these allegations herein by reference. 67. Plaintiff TherOx is the owner of the 059 Patent and has right to prosecute

this action and enforce the 059 Patent against infringers, and to collect damages for all relevant times. 68. On information and belief, Defendants have infringed and are infringing the

059 Patent by making, using, offering to sell, or selling their infringing products or providing or offering to provide services that use such infringing products within the United States, in violation of Title 35, United States Code, Section 271. 69. On information and belief, Defendants Lapin, Jepson and Farver have

infringed and are infringing the 059 Patent by personally taking part in the commission of the patent infringement by the other defendants and specifically by engaging themselves and directing other officers or employees of the other defendants to commit the patent infringement act, and by personally inducing patent infringement as they specifically intended to encourage the other defendants patent infringement and actively and knowingly intended to aid and abet the patent infringement by the other defendants.

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70.

On information and belief, unless enjoined, Defendants will continue to

infringe the 059 Patent.

FIFTH CAUSE OF ACTION

Infringement of the 535 Patent

[35 U.S.C. 271] (Against All Defendants)

71.

Plaintiffs repeat, reallege and reaver all of their allegations contained in the

above Paragraphs 1 through 70, Inclusive, and incorporate these allegations herein by reference. 72. Plaintiffs TherOx and DynamOx are co-owners of the 535 Patent and have

right to prosecute this action and enforce the 535 Patent against infringers, and to collect damages for all relevant times. 73. On information and belief, Defendants have infringed and are infringing the

535 Patent by making, using, offering to sell, or selling their infringing products or providing or offering to provide services that use such infringing products within the United States, in violation of Title 35, United States Code, Section 271. 74. On information and belief, Defendants Lapin, Jepson and Farver have

infringed and are infringing the 535 Patent by personally taking part in the commission of the patent infringement by the other defendants and specifically by engaging themselves and directing other officers or employees of the other defendants to commit the patent infringement act, and by personally inducing patent infringement as they specifically intended to encourage the other defendants patent infringement and actively and knowingly intended to aid and abet the patent infringement by the other defendants. 75. On information and belief, unless enjoined, Defendants will continue to

infringe the 535 Patent.

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SIXTH CAUSE OF ACTION Infringement of the 278 Patent

[35 U.S.C. 271] (Against All Defendants)

76.

Plaintiffs repeat, reallege and reaver all of their allegations contained in the

above Paragraphs 1 through 75, Inclusive, and incorporate these allegations herein by reference. 77. Plaintiffs TherOx and DynamOx are co-owners of the 278 Patent and have

right to prosecute this action and enforce the 278 Patent against infringers, and to collect damages for all relevant times. 78. On information and belief, Defendants have infringed and are infringing the

278 Patent by making, using, offering to sell, or selling their infringing products or providing or offering to provide services that use such infringing products within the United States, in violation of Title 35, United States Code, Section 271. 79. On information and belief, Defendants Lapin, Jepson and Farver have

infringed and are infringing the 278 Patent by personally taking part in the commission of the patent infringement by the other defendants and specifically by engaging themselves and directing other officers or employees of the other defendants to commit the patent infringement act, and by personally inducing patent infringement as they specifically intended to encourage the other defendants patent infringement and actively and knowingly intended to aid and abet the patent infringement by the other defendants. 80. On information and belief, unless enjoined, Defendants will continue to

infringe the 278 Patent.

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SEVENTH CAUSE OF ACTION

Infringement of the 068 Registration [ 34 of the Lanham Act, 15 U.S.C. 1116] (Against All Defendants except Village)

81.

Plaintiffs repeat, reallege and reaver all of their allegations contained in the

above Paragraphs 1 through 80, Inclusive, and incorporate these allegations herein by reference. 82. Plaintiff DynamOx is the owner of the 068 Registration and have right to

prosecute this action and enforce the 068 Registration against infringers, and to collect damages for all relevant times. 83. On information and belief, Defendants have infringed and are infringing the

068 Registration by advertising and selling their products, or advertising and offering their services that use such products, within the United States, in violation of Title 15, United States Code, Section 1114. 84. On information and belief, Defendants Lapin and Jepson have infringed

and are infringing the 068 Registration by personally taking part in the commission of the trademark infringement by the other defendants and specifically by engaging themselves and directing other officers or employees of the other defendants to commit the trademark infringement act, and by personally inducing trademark infringement as they specifically intended to encourage the other defendants trademark infringement and actively and knowingly intended to aid and abet the trademark infringement by Defendants. 85. On information and belief, unless enjoined, Defendants will continue to

infringe the 068 Registration.

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EIGHTH CAUSE OF ACTION

Federal Unfair Competition [ 43(a) of the Lanham Act, 15 U.S.C. 1125(a)] (Against All Defendants except Village)

86.

Plaintiffs repeat, reallege and reaver all of their allegations contained in the

above Paragraphs 1 through 85, Inclusive, and incorporate these allegations herein by reference. 87. On information and belief, defendants have used Plaintiff DynamOx DynamOx trademark protected by the 068 Registration in Defendants advertising in connection with Defendants competing wastewater treatment products and services, which is likely to cause confusion, mistake or deception in the public as to the affiliation, connection or association of Defendants with Plaintiff DynamOx, and/or as to the origin, sponsorship, or approval of Defendants products or services by Plaintiff DynamOx. 88. On information and belief, Defendants had actual knowledge of Plaintiff

DynamOx extensive and continuous use of, and the federal registration for, Plaintiffs DynamOx trademark, but nevertheless willfully and deliberately used Plaintiff DynamOx trademark in interstate commerce in connection with Defendants competing wastewater treatment products and services, for the express purpose of engaging in unfair competition with the Plaintiffs. 89. On information and belief, Defendants above alleged conduct of unfair

competition is malicious and oppressive, and Defendants have willfully and deliberately committed such malicious and oppressive conduct. 90. As a result of Defendants willful unfair competition with Plaintiffs,

Plaintiffs have suffered great and irreparable harm and are therefore entitled to receive maximum damages allowable under the Lanham Act from and against the Defendants. 91. On information and belief, unless enjoined, Defendants will continue to

commit the above alleged malicious and oppressive acts of unfair competition.

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NINTH CAUSE OF ACTION

Common Law Copyright Infringement (Against All Defendants except Village)

92.

Plaintiffs repeat, reallege and reaver all of their allegations contained in the

above Paragraphs 1 through 91, Inclusive, and incorporate these allegations herein by reference. 93. On information and belief, defendants have copied the original design,

appearance, graphic and text content of Plaintiff DynamOxs website and used the same and/or substantially similar design, appearance, graphic and text content on Defendants websites, without Plaintiffs consent and authorization, in connection with Defendants infringing wastewater treatment products and services. For example,

Defendants websites, www.dynamoxgps.com and www.lapinservices.com, copy a significant amount of protected works from Plaintiff DynamOxs website,

www.dynamox.capitalenergyholdings.com, including the following language regarding Defendants aeration systems: New Patented DO Aeration Systems[:] We achieve this by delivering extremely large amounts of dissolved oxygen into waste streams without loss through bubbles; the oxygen rich water remains stable, odor-free and biologically available with virtually no off gassing. 94. On information and belief, Defendants had actual knowledge of Plaintiff

DynamOx original creation, authentic authorship and extensive prior use of the design, appearance, graphic and text contents on Plaintiff DynamOxs website, but nevertheless willfully and deliberately copied Plaintiff DynamOxs design, appearance, graphic and text contents and used the same or substantially similar design, appearance, graphic and text contents on Defendants websites in connection with advertising, promoting, offering for sale and selling Defendants infringing wastewater treatment products and services.

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95.

On information and belief, Defendants above alleged conduct of copyright

infringement is malicious and oppressive, and Defendants have willfully and deliberately committed such malicious and oppressive conduct. 96. As a result of Defendants willful copyright infringement, Plaintiffs have

suffered great and irreparable harm and are therefore entitled to receive all damages allowable under the common law from and against the Defendants. 97. On information and belief, unless enjoined, Defendants will continue to

commit the above alleged malicious and oppressive acts of copyright infringement. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment in their favor against the Defendants as follows: 1. Adjudging, finding, and declaring that Defendants infringed, have infringed

and are infringing the Patents-in-suit; 2. Adjudging, finding, and declaring that Defendants (except Village)

infringed, have infringed and are infringing the Trademark-in-suit; 3. Adjudging, finding, and declaring that Defendants (except Village)

competed, have competed and are competing unfairly with the Plaintiffs; 4. Adjudging, finding, and declaring that Defendants (except Village)

infringed, have infringed and are infringing Plaintiffs copyrights; 5. Permanently enjoining Defendants, their officers, agents, servants,

employees, and attorneys, and those persons in active concert or participation with them, from infringing the Patents-in-suit; 6. Permanently enjoining Defendants, their officers, agents, servants,

employees, and attorneys, and those persons in active concert or participation with them, from infringing the Trademark-in-suit;
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7.

Permanently enjoining Defendants, their officers, agents, servants,

employees, and attorneys, and those persons in active concert or participation with them, from unfairly competing with the Plaintiffs by using Plaintiff DynamOx trademark or any confusingly similar mark in connection with distributing and selling Defendants products and devices; 8. Awarding the www.dynamoxgps.com Internet web-site and domain

name to Plaintiff DynamOx; 9. Permanently enjoining Defendants, their officers, agents, servants,

employees, and attorneys, and those persons in active concert or participation with them, from infringing Plaintiffs copyrights by using any design, appearance, graphic or text contents on Defendants websites or any other websites that are the same or substantially similar to the design, appearance, graphic or text contents of Plaintiff DynamOx website; 10. Awarding Plaintiffs an accounting and damages against Defendants for

their patent and trademark infringement in a sum to be determined at trial, together with interest and costs as fixed by the Court; all of these damages to be enhanced in amount up to treble the amount of compensatory damages; 11. Awarding Plaintiffs an accounting and damages against Defendants for

their unfair competition in a sum to be determined at trial, together with interest and costs as fixed by the Court; all of these damages to be enhanced to the maximum amount available under the Lanham Act; 12. Awarding Plaintiffs an accounting and damages against Defendants for

their copyright infringement in a sum to be determined at trial, together with interest and costs as fixed by the Court; all of these damages to be enhanced to the maximum amount available under the common law; 13. Awarding Plaintiffs their reasonable attorneys fees, costs, and

disbursements in this action; and 14. Granting Plaintiffs such other and further relief as is just and proper.
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DEMAND FOR JURY TRIAL

Plaintiffs TherOx, Inc. and DynamOx, Inc. hereby demand a jury trial with respect to all claims triable by a jury in this action.

Respectfully submitted, BROOKS KUSHMAN P.C.

/s/ Christopher C. Smith Mark A. Cantor (P32661) Christopher C. Smith (P73936) 1000 Town Center, 22nd Floor Southfield, MI 48075 Tel: (248) 358-4400 Fax: (248) 358-3351 Email: mcantor@brookskushman.com csmith@brookskushman.com Dated: November 8, 2011

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