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KAREN I. BOYD (#189808) boyd@turnerboyd.com TURNER BOYD LLP 2570 W. El Camino Real, Suite 380 Mountain View, CA 94040 Telephone: (650) 521-5930 Facsimile: (650) 521-5931 Attorneys for SCIDERA CANINE, LLC

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION

SCIDERA CANINE, LLC., Plaintiff, COMPLAINT FOR DECLARATORY JUDGMENT

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v.

FRED HUTCHINSON CANCER RESEARCH CENTER; ARGUS GENETICS, LLC; and MARS, INC., Defendants.

CIVIL ACTION NO. ________

Plaintiff Scidera Canine, LLC., for its Complaint against Defendants Fred Hutchison Cancer Research Center, Argus Genetics, LLC, and Mars, Inc., through its undersigned counsel alleges and avers as follows: PARTIES 1. Plaintiff Scidera Canine, LLC. (Scidera) is a limited liability corporation organized

and existing under the laws of the State of Delaware, with a principal place of business at 1756 Picasso Avenue, Davis, California 95616. 2. On information and belief, Defendant Mars, Inc. (Mars) is a corporation organized

and existing under the laws of the State of Delaware with a principal place of business at 6885 Elm Street, McLean, Virginia 22101. COMPLAINT FOR DECLARATORY JUDGMENT 1

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3.

On information and belief, Fred Hutchinson Cancer Research Center (hereinafter,

FHCRC) is a private, non-profit corporation organized and existing under the laws of the State of Washington, having a principal place of business at 1100 Fairview Ave. N., Seattle, Washington 98109. 4. On information and belief, Argus Genetics, LLC (hereinafter, Argus) is a company

organized and existing under the laws of the State of Washington, having a principal place of business at 1616 Eastlake Avenue E., Seattle, Washington 98109. NATURE OF THE ACTION 5. Scidera (and its predecessors in interest) is a leader in the science of methods of using

single nucleotide polymorphic (SNP) markers in an individual canines DNA to identify breed contributions to the genome for that canine. 6. This lawsuit seeks a declaration that allegations by Mars, and its licensors, concerning

infringement of U.S. Patent No. 7,729,863 (the 863 Patent) (Exhibit 1) as obtained by FHCRC are unjustified and without merit. 7. Scidera seeks a Declaratory Judgment that it does not infringe any valid claim of U.S.

Patent No. 7,729,863, according to the provisions of 35 U.S.C. 101, 102, 103 or 112. JURISDICTION AND VENUE 8. This is an action under the Patent Laws of the United States, Title 35 of the United

States Code, and the Declaratory Relief Act, 28 U.S.C. 2201-02. 9. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C.

1331, 1338(a) and 2201(a). 10. 11. Venue is proper in this District under 28 U.S.C. 1391 and 1400. This court has personal jurisdiction over Scidera which has a principal place of

business in this District. 12. This Court has personal jurisdiction over Mars, FHCRC and Argus because, on

information and belief, they each have had sufficient minimum contacts with the forum as a result of business conducted within the State of California and within this judicial district. Personal COMPLAINT FOR DECLARATORY JUDGMENT 2

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jurisdiction also exists over Mars, FHCRC and Argus because, upon information and belief, Mars FHCRC and Argus have sold and/or offered to sell services and products in this District or, upon information and belief, have placed such products and services offerings into the stream of commerce and such products and services as a result have been offered for sale or sold in this District. BACKGROUND 13. Scidera is the successor-in-interest to Metamorphix, Inc. (hereinafter jointly referred

to as Scidera), which was formed in 1994 as a research collaboration between the Genetics Institute and The Johns Hopkins School of Medicine. The purpose of the collaboration was to discover and characterize growth differentiation factors. 14. In March of 2002, Scidera obtained genomics technology from Celera Genomics

(Celera), the biotechnology company that sequenced the human genome and is recognized as one of the largest animal genotyping facilities in the world. Scidera also acquired Celeras AgGen operations. 15. On December 7, 2000 Elaine Ostrander (a listed inventor on the 863 Patent-in-suit)

entered into a Consulting Agreement with PE Corporation (through its business unit, Celera Genomics). See Exhibit 2. The term of the Consulting Agreement was from December 1, 2000 through December 31, 2002. The field of the consultancy was Participation in scientific advisory board for Ralston Purina gene discovery program in canines; . . . . As provided in the Consulting Agreement, All work which results from performance of services under this agreement shall belong exclusively to PE Corporation. Furthermore, any inventions and patentable developments arising out of such work were to be assigned to PE Corporation. 16. Thus, before December of 2003, Scidera was actively involved in the research and

development of animal DNA genotyping, including methods for determining the breed of a canine animal based on a statistical analysis of a genetic profile. 17. Pursuant to those research and development efforts, on October 24, 2003, Scidera

filed U.S. Patent Application Serial No. 60/514,180 entitled Methods and systems for inferring COMPLAINT FOR DECLARATORY JUDGMENT 3

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genetic traits to manage companion animals (the 180 Application). The 180 Application is directed to methods of using single nucleotide polymorphic markers in an individual canines DNA to identify breed contributions to the genome of the canine. 18. On October 8, 2004, Scidera filed U.S. Patent Application Serial No. 60/617,383

(the 383 Application). The 383 Application is also entitled Methods and systems for inferring genetic traits to manage companion animals and, is directed to methods of using single nucleotide polymorphic markers in a individual canines DNA to identify breed contributions to the genome of the canine. On October 25, 2004, Scidera filed U.S. Patent Application Serial No. 10/972,767 (the 767 Application), which claims priority to the 180 Application and the 383 Application. The767 Application is entitled Compositions, Methods and Systems for Inferring Canine Breeds for Genetic Traits and Verifying Parentage of Canine Animals and is directed to methods of using single nucleotide polymorphic markers in an individual canines DNA to identify breed contributions to the genome of the canine. 19. Less than one year after the completion of the Ostrander Consulting Agreement and

approximately two months after Scidera filed its first U.S. Patent Application, Fred Hutchinson Cancer Research Center (FHCRC) filed its U.S. Patent Application serial number 60/530,464 on December 17, 2003. This patent application was entitled Methods and Materials for Canine Breed Identification and named Elaine Ostrander and others as co-inventors. 20. On June 1, 2010, U. S. Patent Application serial number 60/530,464 matured into

U.S. Patent No. 7,729,863 the patent in this suit. 21. On information and belief, FHCRC has granted an exclusive license under the 863

Patent to Argus Genetics, LLC. 22. On information and belief, Argus Genetics, LLC has granted an exclusive sub-license

under the 863 Patent to Mars, Inc. 23. On information and belief Mars began to offer for sale in 2008 a commercial canine

breed identification test kit under the trademark WISDOM PANEL. The Mars WISDOM PANEL test kit uses one or more single nucleotide polymorphic markers in an individual canines COMPLAINT FOR DECLARATORY JUDGMENT 4

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DNA to identify the breed contributions to the genome of the canine. MARS ACCUSATION OF PATENT INFRINGEMENT BY SCIDERA 24. On information and belief, before Mars offered its WISDOM PANEL for sale,

Scidera began the commercial offer for sale and sale of its own DNA canine breed identification test kit. Scidera presently offers a DNA canine breed identification test kit under the trademark CANINE HERITAGE. Scideras test kit is the subject of and is covered by its pending U.S. Patent Application. 25. On April 28, 2011, the U.S. Patent and Trademark Office granted a Request for

Reexamination as to the patentability of the 863 Patent. Currently, the 863 Patent is undergoing reexamination by the U.S. Patent and Trademark Office. 26. Despite the fact that the Scidera canine breed identification test kit is the subject of

and covered by a Scidera patent application with a priority date that pre-dates the filing of the patent application that matured into the 863 patent and despite the fact that the 863 patent is currently in re-examination in the U.S. Patent Office, Mars accused Scidera of infringing the 863 patent by letters dated as early as June 17, 2011 and as recently as September 8, 2011. More particularly, Mars contended that the making, selling and using of Scideras CANINE HERITAGE DNA canine breed identification test kit constituted an infringement of the 863 patent. See Exhibits 3 and 4. 27. Scidera has made, used and sold its CANINE HERITAGE test kit since receiving

the Mars letter of September 8, 2011 and intends to continue doing so. As a result, Scidera has a reasonable apprehension of being sued for patent infringement by Mars and its licensors. Thus, there is a justiciable controversy between Scidera and Mars (and its licensors) regarding infringement of claims in the 863 Patent and validity of claims in the 863 Patent. COUNT I DECLARATORY JUDGMENT OF INVALIDITY 28. 29. Scidera incorporates by reference paragraphs 1 through 27 as if fully set forth herein. The claims of the 863 patent are invalid in view of the prior inventions and 5

COMPLAINT FOR DECLARATORY JUDGMENT

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discoveries of Scidera as represented in its prior patent application serial numbers 60/514,180 and 60/617,383 and the work of Elaine Ostrander which resulted from the performance of services under her Consulting Agreement with PE Corporation, through its business unit Celera Genomics. Any work resulting from performance of services under the Consulting Agreement was to belong exclusively to PE Corporations and any inventions and patentable developments arising out of such work were to be assigned to PE Corporation. 30. In addition, claims 1, 2, 5,7, 8, 10-14, 16-18, 20-30, 33, 36-40 and 42-44 are invalid

for failure to satisfy the requirement of 35 U.S.C. 101, 102, 103 or 112. 31. The prior art references that form the basis for invalidity under 35 U.S.C. 102 and

103 include the following: Randi et al. Detecting rare introgression of domestic dog genes into wild wolf (Canis lupus) populations by Bayesian admixture analysis of microsatellite variation, Conservation Genetics 3(1): 29-43, March 2002. Vila et al., Combined use of maternal, paternal and bi-parental genetic markers for the identification of wolf-dog hybrids, Heredity 90: 17-24, January 2003. Pritchard et al. Inference of Population Structure Using Multilocus Genotype Data, Genetics 155: 945-959, 2000. Koskinen et al., Individual assignment using microsatellite DNA reveals unambiguous breed identification in the domestic dog, Animal Genetics 34: 297-301, available online July 2003. Information from the American Kennel Club regarding canine breed similarities; and Information regarding health risks associated with canine breeds. 32. In addition the following claims are invalid for failure to provide an enabling

disclosure, an adequate written description of the claimed invention and sufficiently definite claim language as required by 35 U.S.C. 112: claims 1, 2, 7, 8, 12, 14, 15, 20, 33 and 36. COUNT II DECLARATORY JUDGMENT OF NONINFRINGEMENT COMPLAINT FOR DECLARATORY JUDGMENT 6

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33. 34. 35.

Scidera incorporates by reference paragraphs 1 through 32 as if fully stated herein. Scidera does not infringe any valid claim of the 863 patent. More particularly, Scidera does not infringe the following claims of the 863 patent:

Claims 3, 4, 6, 9, 15, 19, 31, 32, 34, 35 and 41. WHEREFORE, Scidera respectfully requests that this Court: A. Enter an Order declaring that the claims of the 863 Patent are invalid in view of the prior inventions and discoveries of Scidera and the work of Elaine Ostrander performed pursuant to the Consulting Agreement with PE Corporation; B. Enter an Order declaring that claims 1, 2, 5,7, 8, 10-14, 16-18, 20-30, 33, 36-40 and 4244 of the 863 patent are invalid for failure to satisfy the requirement of 35 U.S.C. 101, 102, 103 or 112; C. Enter an Order declaring that claims 3, 4, 6, 9, 15, 19, 31, 32, 34, 35 and 41 of the 863 patent are not infringed by the manufacture, use, offer for sale, sale or importation of products or services by Scidera; D. Enter an Order that Scidera has not and does not infringe any valid claim of the 863 patent; E. Enter Order finding this case to be exceptional pursuant to 35 U.S.C. 285, and awarding to Scidera its attorneys fees, costs and expenses; and F. Grant to Scidera such other and further relief as may be just and appropriate.

COMPLAINT FOR DECLARATORY JUDGMENT

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Dated: October 24, 2011

Respectfully submitted, TURNER BOYD LLP By: /s/ Karen I. Boyd Karen I. Boyd, SBN #189808 2570 W. El Camino Real, Ste. 380 Mountain View, CA 94040 Telephone: (650) 521-5930 Attorneys for Plaintiff SCIDERA CANINE LLC Of Counsel: Stephen M. Schaetzel Anthony B. Askew Tina Williams McKeon MCKEON, MEUNIER, CARLIN & CURFMAN, LLC 817 West Peachtree Street Suite 900 Atlanta, Georgia 30308 Phone: 404-645-7700 Fax: 404-645-7707

COMPLAINT FOR DECLARATORY JUDGMENT