Aoki et al v. Gilbert et al
Filing
187
STIPULATION, CONSENT JUDGMENT, PERMANENT INJUNCTION and ORDER signed by District Judge Troy L. Nunley on 8/25/14. (Manzer, C)
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JOANNA R. MENDOZA (SBN 148320)
LAW OFFICES OF JOANNA R. MENDOZA, P.C.
P.O. Box 2593
Granite Bay, CA 95746
(916) 781-7600
(916) 781-7601 FAX
jmendoza@theiplawfirm.com
Attorneys for Plaintiffs THOMAS T. AOKI, M.D.,
and AOKI DIABETES RESEARCH INSTITUTE
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MARCUS DANIEL MERCHASIN (SBN 55927)
Attorney and Counselor at Law
582 Market Street, Suite 1400
San Francisco, CA 94104
(415) 678-2700
(415) 520-0426 FAX
marcusmerchasin@att.net
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Attorney for Defendants HEALTH INNOVATIONS, LP,
ACSRC, LLC, SHUYUAN “SHERRY” TANG, and
CHENG SHAO
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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THOMAS T. AOKI, M.D., an individual, and )
AOKI DIABETES RESEARCH INSTITUTE, )
a California Non-Profit Corporation,
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Plaintiffs,
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vs.
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GREGORY FORD GILBERT, an individual; )
BIONICA, INC., a Nevada corporation, et al. )
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Defendants.
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______________________________________ )
CASE NO. 2:11-CV-02797-TLN-CKD
STIPULATION, CONSENT
JUDGMENT, PERMANENT
INJUNCTION, AND ORDER
This Stipulation, Consent Judgment and Permanent Injunction (“Consent Judgment”) is
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entered into by and between Plaintiffs THOMAS T. AOKI, M.D., and AOKI DIABETES
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RESEARCH INSTITUTE (hereinafter collectively referred to as “Plaintiffs”) and Defendants
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HEALTH INNOVATIONS, LP, ACSRC, LLC, SHUYUAN “SHERRY” TANG, and CHENG
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SHAO (hereinafter collectively referred to as “Hayward Clinic Defendants”), subject to approval
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by the Court.
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STIPULATION, CONSENT JUDGMENT, PERMANENT INJUNCTION AND ORDER
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WHEREAS, on October 24, 2011, Plaintiffs initiated this action against the Hayward
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Clinic Defendants and others alleging claims for Patent Infringement, Copyright Infringement,
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Trade Secret Misappropriation, False and Misleading Advertising under the Lanham Act (15
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U.S.C. §1125(a)(1)) and Cal. Bus. & Prof. Code §17500, and Unfair Competition under the
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Lanham Act (15 U.S.C. §1125(a)) and Cal. Bus. & Prof. Code §17200.
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WHEREAS, the basis of Plaintiffs’ claims against the Hayward Clinic Defendants arise
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from the operation of a clinic at 22455 Maple Court, #304, Hayward, California 94541 (the
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"Hayward Clinic"), from which the Hayward Clinic Defendants provided treatment to patients
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known as Metabolic Activation Therapy (“MAT® Treatment”), later referred to by the Hayward
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Clinic Defendants as “Artificial Pancreas Therapy,” which the Hayward Clinic Defendants
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acknowledge involved the use of the following U.S. Patents: No. 6,579,531 (the “531 patent”);
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No. 6,582,716 (the “716 patent”); No. 6,613,342 (the “342 patent”); No. 6,613,736 (the “736
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patent”); No. 6,821,527 (the “527 patent”); No. 6,967,191 (the “191 patent”); and No. 7,692,351
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(the “351 patent”).
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WHEREAS, the Hayward Clinic Defendants wish to conclude this litigation with
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Plaintiffs at the initial pleading stage without contesting the action, nor the validity or
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enforceability of any claims of the patents at issue in this proceeding; and
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WHEREAS, Plaintiffs and the Hayward Clinic Defendants, through their respective
counsel, hereby agree to entry of this Consent Judgment;
NOW, THEREFORE, IT IS HEREBY STIPULATED, ORDERED AND ADJUDGED,
AS TO THE HAYWARD CLINIC DEFENDANTS:
1. This is an action for Patent Infringement, Copyright Infringement, Trade Secret
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Misappropriation, False and Misleading Advertising under the Lanham Act (15 U.S.C.
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§1125(a)(1)) and Cal. Bus. & Prof. Code §17500, and Unfair Competition under the Lanham Act
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(15 U.S.C. §1125(a)) and Cal. Bus. & Prof. Code §17200.
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2. With respect to the patent, copyright and Lanham Act claims this Court has original
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and/or exclusive subject matter jurisdiction over the subject matter of this action and the
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Hayward Clinic Defendants under 28 U.S.C. §§ 1331 and 1338(a) and (b). The Court has
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STIPULATION, CONSENT JUDGMENT, PERMANENT INJUNCTION AND ORDER
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supplemental jurisdiction with respect to the California Business & Professions Code based
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claims pursuant to 28 U.S.C. § 1367(a). Venue is proper in this Court pursuant to 28 U.S.C.
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§1391(b).
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3. The Hayward Clinic Defendants admit that Plaintiff Dr. Aoki is the owner of all right,
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title and interest in and to the 531 patent, the 716 patent, the 342 patent, the 736 patent, the 527
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patent, the 191 patent, and the 351 patent.
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4. The Hayward Clinic Defendants do not contest that all of the claims of the 531 patent,
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the 716 patent, the 342 patent, the 736 patent, the 527 patent, the 191 patent, and the 351 patent
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are valid and enforceable.
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5. During the operation of their Hayward Clinic, the Hayward Clinic Defendants admit
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that they made, used, sold, or offered for sale the MAT® Treatment technology described in the
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531 patent, the 716 patent, the 342 patent, the 736 patent, the 527 patent, the 191 patent, and the
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351 patent.
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6. The Hayward Clinic Defendants have ceased all operations and permanently closed
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the Hayward Clinic, ceased all MAT® Treatments, whether directly or indirectly, and ceased all
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other day-to-day operations of the Hayward Clinic.
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7. Effective as of the date this Consent Judgment is entered by the Court, the Hayward
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Clinic Defendants and any and all of their agents, representatives, subsidiaries, directors,
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principals, officers, successors, assigns, and all others acting in concert or participation with
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them and not named separately in the Action (in other words, this does not apply to any other
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named defendant in this action), are hereby permanently enjoined and restrained from engaging
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in any of the following activities:
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(a) making, using, offering to sell, or selling within the United States, or importing into
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the United States (either directly, indirectly) any of the MAT® Treatment technology described
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within the 531 patent, the 716 patent, the 342 patent, the 736 patent, the 527 patent, the 191
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patent, or the 351 patent.
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(b) teaching others how to perform the MAT® Treatment;
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(c) sharing information, copyrighted material or trade secrets with any third-parties
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STIPULATION, CONSENT JUDGMENT, PERMANENT INJUNCTION AND ORDER
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regarding the MAT® Treatment technology;
(d) providing medical data, patient/medical records, or other information kept at the
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Hayward Clinic to any third-parties or any other defendant named in this action (except as
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required by law);
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(e) billing insurance companies and Medicare for MAT® Treatments performed by the
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Hayward Clinic Defendants at any of their facilities and making any further attempts to collect
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payment from insurance or Medicare for those treatments;
(f) writing any books, articles, letters, blogs, social media posts, or any other writing
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about the MAT® Treatment;
(g) making media presentations, participating in speaking engagements, presenting
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lectures or educational sessions on the subject of the MAT® Treatment;
(h) acting as an advisor or consultant to investors, patients or any member of the public
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on the subject of the MAT® Treatment;
(i) visiting senior citizens’ groups or senior housing facilities to discuss the MAT®
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Treatment;
(j) engaging in any form of fundraising to provide the MAT® Treatment or to open
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clinics that will provide the MAT® Treatment; and
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(k) profiting in any manner with respect to the MAT® Treatment.
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(l) assisting, aiding or abetting any other person or business entity in engaging in or
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performing any of the activities referred to in subparagraphs (a) through (k) above.
8. Plaintiffs and the Hayward Clinic Defendants shall bear their own costs and attorneys
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fees.
9. This Consent Judgment constitutes a final judgment concerning the subject matter of
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this action as between the Plaintiffs and the Hayward Clinic Defendants identified on page 1.
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10. Plaintiffs and the Hayward Clinic Defendants waive any right to appeal from this
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Consent Judgment.
11. Upon entry of this Consent Judgment, this case is closed as to the Hayward Clinic
Defendants only; provided, however, that this Court shall retain jurisdiction to enforce the terms
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STIPULATION, CONSENT JUDGMENT, PERMANENT INJUNCTION AND ORDER
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and provisions of this Consent Judgment and the permanent injunction stipulated to herein.
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SO STIPULATED AND CONSENTED:
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DATED: August 19, 2014
___/s/ Joanna R. Mendoza________
JOANNA R. MENDOZA
Attorney for Plaintiffs
DATED: August 19, 2014
___/s/ Marcus D. Merchasin_______
MARCUS D. MERCHASIN
Attorney for the Hayward Clinic Defendants
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IT IS SO ORDERED.
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Dated: August 25, 2014
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Troy L. Nunley
United States District Judge
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STIPULATION, CONSENT JUDGMENT, PERMANENT INJUNCTION AND ORDER
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