IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION THE SOULE CO.

, a Florida corporation, Plaintiff, vs XODUS MEDICAL, INC., a Pennsylvania corporation, Defendant. _______________________________/ Case No. __________________

DECLARATORY JUDGMENT ACTION COMES NOW Plaintiff, The Soule Co., Inc., a Florida corporation, by its undersigned attorney, bringing this action against Defendant Xodus Medical Inc., a Pennsylvania corporation, and on the grounds hereinafter alleges: The Parties 1. Plaintiff, The Soule Co. Inc., hereinafter referred to as SOULE, is a Florida corporation having a principal place of business at 4322 Pet Lane, Lutz, Florida 33559. 2. SOULE is engaged in the business of design, development, manufacture, distribution and sale of patient positioning systems namely disposable foam positioners, reusable gel positioners, operating room tables and stretcher pads,

bean bag positioners, patient positioning straps, and a proprietary patient positioning pad. 3. In particular, the SOULE proprietary patient positioning pads are depicted in the brochures attached as Exhibit 1 and Exhibit 2 hereto. 4. Defendant, Xodus Medical Inc., hereinafter referred to as XODUS, is a corporation existing under the laws of the State of Pennsylvania, having a principal place of business at 702 Prominence Drive, New Kensington, Pennsylvania 15068. 5. XODUS is engaged in the business of manufacture and sale of medical devices including patient positioning systems. 6. Among these products, XODUS is the exclusive licensee of one such patient positioning system disclosed, described and defined in US Patent No. 8,464,720 (the 720 Patent) and US Patent No. 8,511,314 (the 314 Patent) attached as Exhibit 3 and Exhibit 4 hereto respectively, marketed by XODUS as The Pink

Pad, depicted in Exhibit 5 attached hereto.

Jurisdiction and Venue 7. This cause of action arises under the Federal Declaratory Judgment Act, Title 28, United States Code, Sections 2201 and 2202 and under the laws of the United States concerning actions relating to patents. Jurisdiction of this Court is based on Title 28, United States Code 1331 and 1338(a). 8. Venue is proper under 28 U.S.C. 1391 and 1400(b).

9.

XODUS has issued aggressive warnings and veiled threats of patent infringement litigation against SOULE if SOULE attempts to market or sell an anti-skid patient support system particularly useful with patients undergoing a medical procedure when in a Trendelenburg position.

10.

Furthermore, XODUS current litigation with other medical device manufacturers over similar patient positioning pads claiming infringement of the 720 Patent and the 314 Patent manifests XODUS aggressive litigious practice. (Xodus

Medical Inc. et al vs Prime Medical LLC and Symmetry Surgical Inc., Case No.
2:13-cv-01372, filed in the Federal District Court for the Western District of Pennsylvania on December 6, 2013.) 11. An actual, substantial and justiciable controversy exists between SOULE and XODUS wherein SOULE requires a declaration by this Court of SOULEs rights to manufacture and sell the proprietary patient pads of Exhibits 1 and 2 hereto. 12. In particular, the controversy relates to the invalidity and non-infringement of the 720 Patent and the 314 Patent. COUNT I Declaration of Non-Infringement of the 720 Patent 13. 14. SOULE hereby incorporates and realleges Paragraphs 1 through 12. XODUS is the exclusive licensee of the 720 Patent issued June 18, 2013 (Exhibit 3 hereto).

15.

The 720 Patent is directed to a patient support system including a viscoelastic foam pad and method of minimizing injury to a patient positioned on the viscoelastic foam pad on an operating table when the patient is in the Trendelenburg position.

16.

The SOULE proprietary patient positioning pads (Exhibits 1 and 2 hereto) lack one or more limitations of the independent claims of the 720 Patent.

17. 18.

Thus, SOULE does not infringe any claim of the 720 Patent. An actual, substantial and justiciable controversy exists between SOULE and XODUS wherein SOULE requires a declaration of SOULEs rights by this Court.

19.

SOULE has been or will be injured and damaged by XODUS allegations that the 720 Patent is or will be infringed by SOULE.

20.

Declaratory relief is both appropriate and necessary to establish that SOULE has neither infringed, induced infringement, nor contributed to the infringement of any claim of the 720 Patent.

21.

Thus, the 720 Patent should not be asserted against SOULE. COUNT II Declaration of Non-Infringement of the 314 Patent

22. 23.

SOULE hereby incorporates and realleges Paragraphs 1 through 12. XODUS is the exclusive licensee of the 314 issued August 20, 2013 (Exhibit 4 hereto).

24.

The 314 Patent is directed to a patient support arrangement including a slow recovery foam pad and method of positioning a patient on the slow recovery

foam pad on an operating table when the patient is in the Trendelenburg position. 25. The SOULE proprietary patient positioning pads (Exhibits 1 and 2 hereto) lack one or more limitations of the independent claims of the 720 Patent. 26. 27. Thus, SOULE does not infringe any claim of the 314 Patent. An actual, substantial and justiciable controversy exists between SOULE and XODUS wherein SOULE requires a declaration of SOULEs rights by this Court. 28. SOULE has been or will be injured and damaged by XODUS allegations that the 314 Patent is or will be infringed by SOULE. 29. Declaratory relief is both appropriate and necessary to establish that SOULE has neither infringed, induced infringement, nor contributed to the infringement of any claim of the 314 Patent. 30. Thus, the 314 Patent should not be asserted against SOULE. COUNT III Declaration of Invalidity of the 720 Patent 31. 32. SOULE hereby incorporates and realleges Paragraphs 1 through 12. Plaintiff SOULE alleges that the 720 Patent is invalid and void: (a) For lack of invention. (b) Because the subject matter thereof represents, at most, the mere expected skill of persons working in the art at the time that the application for said patent was filed, and for many years prior thereto.

(c) Because the subject matter thereof was known or used by others in this country, or patented or described in a printed publication in this or a foreign country before the alleged invention thereof, or in public use or on sale in this country more than one year prior to the filing date of the application on which said patent issued. (d) Because the subject matter thereof was or would have been obvious at the time that the alleged invention was allegedly made, to a person having ordinary skill in the art to which the subject matter of said patent pertains. (e) Because the subject matter thereof was clearly disclosed in and lacks any element of invention over the prior art references considered by the United States Patent and Trademark Office during the prosecution of the application on which the patent issued. (f) Because the alleged invention or improvements described and claimed therein are not inventions or improvements but involve no more than the mere exercise of mechanical skill in view of the state of the art at the time of and long prior to the alleged intention, thereof, or more than one year prior to the filing of the application on which said patent issued, all of which prior art SOULE reserves the right to specify in accordance with the provisions of Title 35, United States Code, Section 282, for the purpose of relying upon same at the time of trial. (g) Because the description contained therein and the disclosure of the alleged invention or improvements, and the claims thereof, and each of

them, are vague, indefinite, incomplete and not in such full, clear, concise and exact terms as to enable persons skilled in the art to use and practice the alleged invention or improvements. (h) Because the claims thereof do not cover valid and patentable combinations of elements. 33. An actual, substantial and justiciable controversy exists between SOULE and XODUS wherein SOULE requires a declaration of SOULEs rights by this Court. 34. SOULE has been or will be injured and damaged by XODUS allegations that the 720 Patent is infringed by SOULE. 35. Declaratory relief is both appropriate and necessary to establish that the claims of the 720 Patent, are invalid. 36. Thus, the 720 Patent cannot be asserted against SOULE. COUNT IV Declaration of Invalidity of the 314 Patent 37. 38. SOULE hereby incorporates and realleges Paragraphs 1 through 12. SOULE alleges that the 314 Patent is invalid and void: (a) For lack of invention. (b) Because the subject matter thereof represents, at most, the mere expected skill of persons working in the art at the time that the application for said patent was filed, and for many years prior thereto. (c) Because the subject matter thereof was known or used by others in this country, or patented or described in a printed publication in this or a foreign

country before the alleged invention thereof, or in public use or on sale in this country more than one year prior to the filing date of the application on which said patent issued. (d) Because the subject matter thereof was or would have been obvious at the time that the alleged invention was allegedly made, to a person having ordinary skill in the art to which the subject matter of said patent pertains. (e) Because the subject matter thereof was clearly disclosed in and lacks any element of invention over the prior art references considered by the United States Patent and Trademark Office during the prosecution of the application on which the patent issued. (f) Because the alleged invention or improvements described and claimed therein are not inventions or improvements but involve no more than the mere exercise of mechanical skill in view of the state of the art at the time of and long prior to the alleged intention, thereof, or more than one year prior to the filing of the application on which said patent issued, all of which prior art SOULE reserves the right to specify in accordance with the provisions of Title 35, United States Code, Section 282, for the purpose of relying upon same at the time of trial. (g) Because the description contained therein and the disclosure of the alleged invention or improvements, and the claims thereof, and each of them, are vague, indefinite, incomplete and not in such full, clear, concise

and exact terms as to enable persons skilled in the art to use and practice the alleged invention or improvements. (h) Because the claims thereof do not cover valid and patentable combinations of elements. 39. An actual, substantial and justiciable controversy exists between SOULE and XODUS wherein SOULE requires a declaration of its rights by this Court. 40. SOULE has been or will be injured and damaged by XODUS allegations that the 314 Patent is infringed by SOULE. 41. Declaratory relief is both appropriate and necessary to establish that the claims of the 314 Patent are invalid. 42. Thus, the 314 Patent cannot be asserted against SOULE. WHEREFORE, SOULE prays for judgment as follows: 1. Entry of judgment that XODUS is without right or authority to threaten or to maintain suit against SOULE, or SOULEs customers for alleged infringement of US Patent No. 8,464,720 or US Patent No. 8,511,314; that said patents are invalid, unenforceable, and void in law; and that said patents are not infringed by SOULE, because of the making, offering for sale, selling, or using the patient positioning pads depicted in Exhibits 1 and 2 hereto. 2. Entry of a preliminary injunction enjoining XODUS its officers, agents, servants, employees, and attorneys, and those persons in active concert or

participation with either of them who receive actual notice thereof from initiating infringement litigation and from threatening SOULE, or any of SOULE's customers, dealers, agents, servants, or employees, or any prospective or present sellers, dealers or users of SOULE's patient positioning pads depicted in Exhibits 1 and 2 hereto, with infringement litigation or charging any of them either verbally or in writing with infringement of US Patent No. 8,464,720 and US Patent No. 8,511,314 because of the manufacture, use, or sell or offer for sale of disposable patient positioning systems made by SOULE, to be made permanent following trial. 3. That SOULE recover SOULE's costs and reasonable attorneys fees incurred in this action. 4. That SOULE have such other and further relief as the Court may deem just and proper.

Arthur W. Fisher, III Florida Bar No. 133689 ARTHUR W. FISHER, III P.A. 5555 West Waters Avenue, Ste 609 Tampa, Florida 33634 (813) 885-2006 Phone (813) 888-6275 Fasimile mail@tampaiplaw.com
Attorney for Plaintiff THE SOULE CO.

10