Brenna Legaard, OSB No. 001659 [email protected] Jay Smith-Hill, OSB No. 096079 smithhillj@lanepowell.

com LANE POWELL PC 601 SW Second Avenue, Suite 2100 Portland, Oregon 97204-3158 Telephone: 503.778.2100 Facsimile: 503.778.2200 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

STEMILT GROWERS, LLC, A WASHINGTON LIMITED LIABILITY COMPANY, and OKANAGAN PLANT IMPROVEMENT CORPORATION, Plaintiff, v. HUGO OSWALD, an individual, Defendant.

Case No. __________ COMPLAINT FOR PATENT INFRINGEMENT JURY TRIAL DEMANDED

The plaintiffs, STEMILT GROWERS, LLC, a Washington limited liability company, and the OKANAGAN PLANT IMPROVEMENT CORPORATION, a corporation organized under the laws of British Columbia, Canada, (collectively plaintiffs) claim and allege against the defendant, HUGO OSWALD as follows: I. PARTIES

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Plaintiff Stemilt Growers, LLC (Stemilt) is a corporation organized and existing

under the laws of the State of Washington and having a principal place of business at 123 Ohme Garden Road, Wenatchee, Washington 98801. 2. Plaintiff Okanagan Plant Improvement Corporation (PICO) is a corporation

organized and existing under the laws of the province of British Columbia, Canada and having a principal place of business at 105 - 13677 Rosedale Avenue, Summerland, British Columbia, Canada V0H 1Z5. 3. Defendant Hugo Oswald (Oswald) is, upon information and belief, an

individual residing within this judicial district. II. JURISDICTION AND VENUE 4. This complaint involves claims for patent infringement arising under the patent

laws of the United States relating to plant patents. 35 U.S.C.A. 101 et seq. and 35 U.S.C.A. 161 et seq. This Court has original jurisdiction over the claim of patent infringement under 28 U.S.C.A. 1331, 1338(a), and 1338 (b). 5. This Court has supplemental jurisdiction over the claims of trespass and

conversion under 28 U.S.C.A. 1367. 6. This Court has personal jurisdiction over defendant by reason of defendants

residence within this judicial district, defendants transaction of business within this judicial district, and defendants commission of acts of infringement within this judicial district. 7. 1400(b). III. FACTS 8. Plaintiff PICO is a plant variety rights management company representing the Venue is proper in this district pursuant to 28 U.S.C.A. 1391 (b), (d) and

interests of Her Majesty the Queen in Right of Canada through the Minister of Agriculture and Agri-Food Canada (AAFC) in the development of apple, cherry, berry and soft fruit breeding programs. PAGE 2 - COMPLAINT FOR PATENT INFRINGEMENT
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On December 15, 2009, the United States Patent and Trademark Office issued

U.S. Patent No. PP20,551 (the 551 patent), directed to a variety of the species Prumus Avium, officially known as Cherry Tree 13S2009 and sometimes marketed under the name Staccato (the Variety), to W. David Lane of Summerland, British Columbia, Canada, a copy of which is attached as Exhibit A. 10. Mr. Lane assigned his rights in the 551 patent to Her Majesty the Queen in right

of Canada, as represented by the Minister of Agriculture and Agri-Food Canada (Canada) on March 27, 2002, making PICO the effective assignee due to pre-existing intellectual property development agreements between Canada and PICO. 11. Stemilt is a family owned tree fruit growing, packing, and shipping company

based in Wenatchee, Washington. Stemilt is the nations largest supplier of sweet cherries and organic tree fruits. 12. On September 5, 2002, PICO and Stemilt Growers, Inc., executed a Variety

License Agreement, subsequently amended by a letter dated May 11, 2004 and an addendum signed by the parties in March 2005, (collectively, the License Agreement). 13. The License Agreement grants Stemilt Growers, Inc., the exclusive right to the

ownership, production, and distribution of the Variety in the United States and the nonexclusive right to sell the fruit of the Variety in the United States, Japan and Australia. 14. 15. Stemilt is the successor in interest by operation of merger to Stemilt Growers, Inc. Oswald is the former owner of certain real property located in Hood River

County, Oregon (parcels 1N-9-12-800, 1N-10-7-600, 1N-9-12-2500, 1N-9-12-2600, 1N-10-7800, 1N-9-12-900, 1N-9-12-1000, 1N-9-12-1001, 1N-9-12-1003, 1N-9-12-1002, 1N-9-12-2801) (the Hood River County Property) and Wasco County, Oregon (parcels 1N-13E05-300, 1N13E06-100, 1N-13E06-200, 1N-13E06A-1600 and 1N-13E06A1500) (the Wasco County Property), which is more particularly described in the attached Exhibit B (collectively, the Property). PAGE 3 - COMPLAINT FOR PATENT INFRINGEMENT
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From January 23, 2004 to March 30, 2010, Oswald was the fee simple owner of

and in possession of the Hood River County Property. 17. From January 15, 2003 to March 30, 2010, Oswald was the fee simple owner of

and in possession of the Wasco County Property. 18. On information and belief, between late 2003 and early 2005, Oswald entered the

real property of Stemilt and/or its licensees without permission and stole scion wood (a cutting from a tree for the purpose of grafting onto another tree or rootstock) of the Variety for the purpose of engaging in the propagation, commercial use, offer for sale, or sale of the patented Variety. 19. On information and belief, Oswald delivered the stolen scion wood to Columbia

Basin Nurseries in Quincy, Washington in early 2004, misrepresented the stolen scion wood as being a new variety developed by Oswald, and requested that the nursery graft the scion wood to rootstock. 20. On information and belief, Oswald delivered the stolen scion wood to Pro Tree

Nurseries in Brentwood, California, in early 2005, misrepresented the variety as a new variety, referring to it as Oswald Special, and requested the nursery graft the scion wood to rootstock. 21. On information and belief, at least one of the nurseries referred to in paragraphs

19 and 20 provided Oswald with rootstock grafted to the stolen scion wood of the Variety, which Oswald proceeded to plant on the Property. 22. This activity of Oswald described in paragraphs 18-21 was without permission,

license, or authorization from Stemilt or from PICO. 23. Trees of the Variety were planted by Oswald in the ground of the Property, and

are now attached by their roots and have become so enmeshed with the Property as to become
fixtures to the Property.

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On information and belief, during the period from December 15, 2009 through

March 30, 2010, Oswald performed, and/or caused others to perform, acts of care and maintenance on the trees of the Variety located on the Property. 25. On March 30, 2010, Prudential Agricultural Property Holding Company, LLC

(Prudential) came into possession and ownership of the Property via Deeds in Lieu of Foreclosure. 26. The Deeds in Lieu of Foreclosure for the Hood River County Property were dated

March 30, 2010, and recorded April 12, 2010, under Hood River County Recording Number 2010-01187. 27. The Deeds in Lieu of Foreclosure for the Wasco County Property were dated

March 30, 2010, and recorded April 13, 2010, under Wasco County Recording Number 2010001338. 28. On April 13, 2010, Prudential sold the Hood River County Property to Timothy

A. Dahle and Colleen A. Dahle, via Bargain and Sale Deed dated April 13, 2010, and recorded April 29, 2010, under Hood River County Recording Number 2010-001574, the current owners. 29. On April 27, 2010, Prudential sold the Wasco County Property to Richard H. Fox

and Ellana M. Fox, via Bargain and Sale Deed dated April 27, 2010, and recorded April 29, 2010, under Hood River County Recording Number 2010-01390, the current owners. 30. It is estimated that the Hood River County property contains approximately

eleven thousand nine hundred thirty-six (11,936) trees that are the asexual progeny of a tree of the Variety on forty (40) acres. 31. It is estimated that the Wasco County Property contains approximately twenty-

three thousand nine hundred eighty-one (23,981) trees that are the asexual progeny of a tree of the Variety on sixty-five (65) acres. IV. FIRST CAUSE OF ACTION: INFRINGEMENT OF THE 551 PATENT

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Plaintiffs repeat and reallege each of the allegations contained in Paragraphs 1

through 31 of this complaint as if full set forth herein. 33. Defendant Oswald has willfully infringed claim 1 of the 551 patent in violation

of 35 U.S.C. 271(a) through (c). 34. Because of defendant Oswalds acts of infringement, plaintiffs PICO and Stemilt

have suffered, are suffering, and will continue to suffer irreparable injury unless defendant is preliminary and permanently enjoined from continuing his unlawful infringing conduct. 35. Defendant Oswald has infringed the 551 patent, directly and by inducing others

to infringe in this judicial District and will continue to do so unless enjoined therefrom by this Court. 36. Upon information and belief, defendant Oswald has had knowledge of the

proprietary nature and patent pending status of the Variety, and his infringement of the 551 patent was willful, wanton and in deliberate disregard of plaintiffs Stemilts and PICOs rights under the 551 patent. 37. Plaintiffs Stemilt and PICO have been irreparably harmed to an extent not yet

determined by defendant Oswalds infringement, and will continue to be irreparably harmed in the future unless defendant is enjoined from his infringing activities by this Court. V. SECOND CAUSE OF ACTION: TRESPASS 38. Plaintiffs repeat and reallege each of the allegations contained in Paragraphs 1

through 37 of this complaint. 39. Oswald intentionally entered real property owned by Stemilt and/or its licensees

and caused damage to such property when Oswald removed scion wood from trees of the Variety on the property. 40. Oswald knew and/or had reason to know that Oswald lacked authorization to

enter such property and to remove such scion wood from trees of the Variety on the property.

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Stemilt and/or its licensees suffered damages as a result of Oswalds trespass in

an amount to be proven at trial. 42. Stemilt is entitled to treble damages as a result of Oswalds trespass because

Oswalds actions violated ORS 105.810, which prohibits the wrongful removal or injury of timber or trees on the land of another person. VI. THIRD CAUSE OF ACTION: CONVERSION 43. Plaintiffs repeat and reallege each of the allegations contained in Paragraphs 1

through 42 of this complaint. 44. Oswald willfully converted and interfered with Stemilts and/or its licensees

rightful possession of trees of the Variety when Oswald knowingly removed scion wood from trees of the Variety without authorization to do so. 45. proven at trial. VII. JURY TRIAL DEMAND 46. Plaintiffs hereby demand a trial by jury on all issues so triable. VIII. PRAYER FOR RELIEF WHEREAS, plaintiffs Stemilt and PICO request that a judgment be granted in its favor as follows: A. That defendant Oswald has infringed claim 1 of the 551 patent in violation of 35 Stemilt suffered damages as a result of Oswalds conversion in an amount to be

U.S.C. 271(a) through (c); B. That defendant Oswald and all related parties (as defined in Fed.R.Civ.P. 65(d))

are preliminarily and permanently enjoined from further infringement of the 551 patent pursuant to 35 U.S.C. 283; C. That defendant Oswald be ordered to account for and pay plaintiffs actual and

exemplary damages to compensate plaintiffs for defendants acts of willful infringement pursuant to 35 U.S.C. 284; PAGE 7 - COMPLAINT FOR PATENT INFRINGEMENT
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That defendant Oswald be ordered to pay treble plaintiff Stemilts actual damages

resulting from the trespass on and removal of scion wood from the property of Stemilt or its licensees; E. That defendant Oswald be ordered to pay plaintiff Stemilts actual damages

resulting from the conversion of the Variety scion wood taken from the property of Stemilt or its licensees; F. That an order be entered directing the destruction of any infringing trees of the

variety located on any real property controlled by Oswald; G. That this court award plaintiffs Stemilt and Okanagan their costs in action,

together with reasonable attorneys fees and pre-judgment and post-judgment interest; H. That this case be deemed exceptional and that plaintiffs be awarded their costs

and reasonable attorneys fees pursuant to 35 U.S.C. 285 and other applicable statutes; and I. That this court grants plaintiffs Stemilt and Okanagan such other relief as it may

deem is just and proper.

DATED: August 6, 2012 LANE POWELL PC

By /s/ (Brenna K. Legaard) Brenna Legaard, OSB No. 001659 Telephone: 503.778.2100 Attorneys for Plaintiffs

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