UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

GERALD MOSS, individually, Plaintiff, -againstKATHERINE MOSS, individually, MICHAEL MOSS, individually, and MOSS TUBES, INC., a New York Corporation Defendants.

) ) ) ) ) ) ) )
CIVIL ACTION NO.

1:13-CV-1137 (MAD/RFT)

COMPLAINT

Plaintiff, GERALD MOSS, for his complaint against defendants MICHAEL MOSS, individually, KATHERINE MOSS, individually and Moss Tubes, Inc. (MTI), states as follows:
INTRODUCTION

The Plaintiffbrings this action for declaratory relief against the Defendants

KATHERiNE MOSS, MICHAEL MOSS and MTI, as a result ofthe Defendants declared intent to seek immediate injunctive relief against the Plaintiff GERALD MOSS for alleged material breach of a contract regarding a Divorce Agreement hereto attached as Exhibit A. 2. The Plaintiff also brings this action based upon patent misuse of several expired

patents that were assigned by the Plaintiff in the Divorce Agreement to the Defendants, and used by Defendants to intimidate the Plaintiff GERALD MOSS and unlawfully coerce him to never again engage in any activity in the broad field of gastrointestinal feeding technology.

THE PARTIES

3.

The Plaintiff, GERALD MOSS, is an individual residing at

, White

Plains, New York 10605. 4. The Plaintiff, GERALD MOSS, is a medical doctor, who also earned a Ph.D. in

Biochemistry, with more than forty years of experience designing and directing the manufacture ofproducts for gastrointestinal feeding and decompression and has spent the majority of his professional life focused on enhancing the field of enteral feeding technology, or feeding technology involving the introduction of nutrients directly into the gastrointestinal tract. He has over 1 00 publications in profession journals. For 25 years he was on the full-time faculty of Rensselaer Polytechnic Institute as a tenured Professor of Biomedical Engineering. He also held a professorial appointment in the department of Surgery of Albany Medical College, and was a practicing clinical surgeon. 5. The Defendant, MTI, upon information and belief, is a New York corporation

having its principal place ofbusiness at 749 Columbia Turnpike, East Greenbush, New York, 12061. 6. The Defendant, KATHERiNE MOSS, upon information and belief, is an

individual residing at 84 Climer Circle, West Sand Lake, New York 12196. 7. The Defendant, MICHAEL MOSS, upon information and belief, is an individual

and is the current Chief Executive Officer of MTI, having its principal place of business at 749 Columbia Turnpike, East Greenbush, New York, 12061. 8. The Defendant MTI manufactures enteral feeding devices comprising tubes

provided for gastrointestinal decompression/feeding wherein the devices are designed to aspirate

within the close confines of the distal esophagus and/or proximal duodenum to facilitate high rates ofnutrient absorption and increased rates ofwound healing and resistance to sepsis.
JURISDICTION AND VENUE

9.
U. S .C.

This Court has jurisdiction over the subject matter ofthis action pursuant to 28
1 33 1 1 3 3 8, 220 1 2202 and 1 5 U. S.C
, ,

1 1 2 1 Further, this court has supplemental

.

jurisdiction over the subject matter ofthis action pursuant to 28 U.S.C. 10.

13 67(a).

Under N.Y. C.P.L.R. 302(a)(1), this Court has personaijurisdiction over the

Defendant MTI because the Defendant MTI transacts business in the State ofNew York and/or contracts to supply goods and services in the State ofNew York. 11
.

This Venue properly lies in this district pursuant to 28 U.S.C.

1391(b).

12.

The Plaintiff alleges that this district is proper since a substantial part of the

events giving rise to the claims occurred, or a substantial part ofthe property that is the subject of this action is situated in this district.
BACKGROUND STATEMENT

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The Plaintiff GERALD MOS S s first wife Judith Moss died of a severe

gastrointestinal complication (postoperative paralytic ileus) that made it impossible to nourish her with then current knowledge and techniques. The Plaintiff GERALD MOSS invented and hand-made a crude prototype ofthe Moss Tube in a vain attempt to save her life. In subsequent months he perfected this device and utilized it in September, 1962, to successfully feed a young postoperative cancer patient at Albany Medical Center Hospital who had developed the same complication. 14. Following the death ofhis first wife and the success in using his refined Moss

Tube prototype to save the young patient, the Plaintiff GERALD MOSS utilized his medical

knowledge to design other enteral feeding devices and systems to advance the field of gastrointestinal feeding technology. 1 5. The Plaintiff GERALD MOSS is an expert in the field of enteral feeding and is

passionate about improving gastrointestinal feeding technologies. 16. The PlaintiffGERALD MOSS married his second wife, the Defendant

KATHERiNE MOSS, on November 1 5, 1962. 1 7. On June 1 5, 1 999, the Plaintiff GERALD MOSS and the Defendant KATHERINE

MOSS entered into a Divorce Agreement. (See Exhibit A ofthis Complaint). 1 8. The Divorce Agreement concerned the settling ofproperty rights between the

parties (Gerald Moss and Katherine Moss) and set forth settlement terms pertaining to associated business interests ofthe parties. 1 9. During the marriage of the Plaintiff GERALD MOSS and the Defendant

KATHERiNE MOSS, two (2) corporations were formed, to wit: Moss Tubes, Inc. and Moss Medical Products, Inc. 20. The Divorce Agreement prescribed the conveyance of Moss Tubes, Inc. to the

Defendant KATHERINE MOSS and prescribed the conveyance of Moss Medical Products, Inc. to the PlaintiffGERALD MOSS. 21
.

The Divorce Agreement prescribed the conveyance of specifically listed

trademarks to the Defendant KATHERINE MOSS. 22. The Divorce Agreement prescribed the conveyance of specifically listed patents

invented by PlaintiffGerald Moss to the Defendant KATHERINE MOSS. 23

.

The Divorce Agreement prescribed the conveyance of specifically listed product

molds to the Defendant KATHERINE MOSS. 24. The Divorce Agreement, in Paragraph 6(i) thereof, specifically provides:
4

[Gerald Moss] and Moss Medical Products, Inc. : (1) shall not compete, during [Gerald Mosss] lifetime, with Michael Moss, [Katherine Moss] or Moss Tubes, Inc. with respect to any matters whatsoever concerning the use ofthe aforesaid Trademarks, Patents and Molds conveyed to [Katherine Moss] under this Agreement; (2) shall not interfere with the business affairs of Michael Moss, [Katherine Moss] or Moss Tubes, Inc., including, without limitation, [Gerald Mosss] agreement to have absolutely no contact whatsoever with any agents, customers or suppliers ofMoss Tubes, Inc., (e.g., the sterilizers or manufacturers ofproducts or services sold by Moss Tubes, Inc.); and (3) shall keep all matters concerning all business affairs of Moss Tubes, Inc. [Katherine Moss] and Michael Moss confidential during his lifetime.
,

25.

In the time since the Divorce Agreement was finalized, the Defendants

KATHERINE MOSS, MICHAEL MOSS and MTI, have engaged in a pattern of unlawful intimidation designed to threaten the Plaintiff GERALD MOSS and pressure him to give up his professional pursuits related to the advancement of enteral feeding technology. 26. In a letter on or about October 30, 2002 (attached hereto as Exhibit B),

Defendants, KATHERINE MOSS, MICHAEL and MTI charged the Plaintiff, GERALD MOSS, with breach of the Divorce Agreement and threatened legal action. 27. The October 30, 2002 letter alleged violations of Paragraph 6(i) ofthe Divorce

Agreement not to compete with the business of MTI, as well as violations of related confidentiality provisions of the Divorce Agreement even though the noncompete set forth in Paragraph 6(i) related only specifically with respect to matters whatsoever concerning the use of the aforesaid Trademarks, Patents and Molds. 28. In another letter on or about October 1 5, 2003 (attached hereto as Exhibit C),

Defendants, KATHERiNE MOSS, MICHAEL and MTI again charged the Plaintiff, GERALD MOSS, with breach ofthe Divorce Agreement and again threatened legal action.

29.

The October 1 5, 2003 letter asserted that the Divorce Agreement did not allow the

Plaintiff GERALD MOSS to invent anything related in any way to the Defendants MTIs products, and further alleged that in consideration for effecting the Divorce Agreement the Plaintiff GERALD MOSS was paid NOT to engage in any biomedical engineering activities, and that doing so constituted a material breach ofthe Divorce Agreement, for which the Defendants would seek remuneration. 30. In yet another threatening letter on or about June 5, 2009 (attached hereto as

Exhibit D), the Defendants, KATHERINE MOSS, MICHAEL MOSS and MTI yet again charged the Plaintiff, GERALD MOSS, with breach ofthe Divorce Agreement and again threatened legal action. 31
.

The June 5, 2009 letter asserted that the Divorce Agreement obligated the

Plaintiff GERALD MOS S not to compete in any way with the Defendant MTI, and further alleged that the Divorce Agreement required the Plaintiff GERALD MOSS to stay out of the entire medical equipment business for gastrointestinal feeding technology because the Divorce Agreement supposedly established a prohibited technology area even though the noncompete set forth in Paragraph 6(i) related only specifically with respect to matters whatsoever concerning the use of the aforesaid Trademarks, Patents and Molds. 32. The June 5, 2009 letter threatened in the most serious ofterms that any activity by

the Plaintiff in the broad field of gastro feeding technology would invoke cause for contempt of court resulting in punishment or fine, or imprisonment or both and would place all consideration paid under the terms ofthe Divorce Agreement in jeopardy. 33. The June 5, 2009 letter further warned that ifthe Plaintiff GERALD MOSS did

not take down the informational website www.mossmed.com pertaining to the business

conveyed to him under the terms ofthe Divorce Agreement (Moss Medical Products, Inc.), within ten (1 0) days, legal action would be taken to bring it down and pursue collection of alleged damages. 34. The website www.mossmed.com pertaining to Moss Medical Products, Inc. (the

business that was conveyed to the Plaintiff GERALD MOSS under the terms of the Divorce Agreement) was not taken down. The website, which is informational only offering no products or services for sale, has been active and accessible from the date of its inception on the web in 2002 to the present day of the filing of this Complaint. A printed copy of the contents of the website, as of August 29, 2013 is hereto attached as Exhibit E.
,

35.

Continuing the same pattern ofunlawful intimidation, the Defendants

KATHERiNE MOSS, MICHAEL MOSS and MTI again threatened the Plaintiff GERALD MOSS in a recent letter dated August 30, 2013 (attached hereto as Exhibit F), declaring an intent to seek immediate injunctive relief against the Plaintiff GERALD MOSS, in an attempt to intimidate the Plaintiff GERALD MOSS to stay out of the medical equipment business for gastro feeding technology. 36. The recent August 30, 2013 letter asserts that the Plaintiff GERALD MOSS has

disregarded his legal obligations under the Divorce Agreement by inventing a new and improved enteral feeding system and planning to market the same, which activities allegedly entitle the Defendants to immediate injunctive relief with penalties assessed against the Plaintiff GERALD MOSS. 37. The recent August 30, 2013 letter also portends that the Divorce Agreement

allegedly prohibits any competition by the Plaintiff GERALD MOSS with any technology merely identified by the Trademarks, Patents (even the expired patents) and Molds listed in the

Divorce Agreement, or in other words, the Divorce Agreement supposedly prohibits the Plaintiff GERALD MOSS from inventing and introducing new and/or improved medical equipment, such as stomach and gastric tubes, and naso-gastric feeding devices, etc., thereby effectively precluding the Plaintiff GERALD MOSS from ever again engaging in any activity in the broad field of medical feeding technology. 38
.

The recent August 30, 201 3 letter reaches still further and asserts that the Plaintiff

GERALD MOSSs new inventions pertaining to feeding catheters and enteral feeding, as set forth in several patents and pending applications owned by the PlaintiffGERALD MOSS, violate the Divorce Agreement even when the Plaintiffs new inventions and corresponding patents and patent applications were developed and protected under patent rights long after the provisions ofthe Divorce Agreement were settled, because supposedly the mere filing of patent applications in the broad field of enteral feeding somehow violates the Divorce Agreement by ostensibly limiting the possibility of future innovation and exclusivity by the Defendant MTJ. 39. The Defendants, in the recent August 30, 2013 letter, threaten that any attempts

by the Plaintiff GERALD MOSS to commercialize his patented innovations would constitute a breach of the Divorce Agreement, as well as a violation of the corresponding Court Order

( attached hereto as Exhibit G) which incorporates the Divorce Agreement by reference.

40. The August 30, 201 3 letter also alleges that the Plaintiff GERALD MOSSs

conduct violates a plethora of state and federal laws, namely, unjust enrichment and unfair competition in violation ofNew York State common law, deceptive trade practices and false advertising in violation ofsections 349-350 ofNew York States General Business Law, trademark infringement in violation of sections 32 and 43 ofthe Lanham Act, 15 U.S.C. l 114

and 1 125, unfair competition and false advertising in violation of section 43 of the Lanham Act, 1 5 U.S.C. 1 125, and constitutes a material breach of your Agreement and contempt of Court. 41
.

Again, in the recent August 3 0, 2013 letter, the Defendants brazenly charge that

the Divorce Agreement prohibits the PlaintiffGERALD MOSS from engaging in any activity related to the medical equipment business for gastro feeding technology. 42. The August 30, 2013 letter also purports that the Plaintiff GERALD MOSSs

conduct is so willfully flagrant it undermines the legal system and invokes cause for punitive damages, and the Defendants threaten to pursue any and all remedies available for contempt, including fine or imprisonment, or both. 43
.

The Defendants, in the recent August 3 0, 2013 letter, impermissibly extended the

scope of their patent claims and use their expired patents which are free for the whole world to use to shamelessly require the Plaintiff GERALD MOSS to take no action whatsoever to commercialize, sell, license or transfer any ofthe PlaintiffGERALD MOSSs patents or patent applications related to the entire field of enteral feeding, and further required the Plaintiff GERALD MOSS and his attorneys to refrain from filing any new patent applications and prosecuting any existing applications that are likewise related to the broad field of enteral feeding.
44.

The Defendants further threaten in the recent August 3 0, 201 3 letter, that if the

www.mossmed.com website is not taken down by September 9, 2013, action will be taken to bring it down and seek costs against the Plaintiff GERALD MOSS even though the site has been continually active for over ten (1 0) years.
45
.

Similar to the previous threatening letters of October 3 0, 2002, October 13 2003,

,

and June 5, 2009, the recent August 3 0, 201 3 letter proclaims that the conduct of the Plaintiff

GERALD MOSS constitutes a material breach of the Divorce Agreement, and the Defendants threaten to bring action for the alleged violation. 46. For the reasons set out below and in view of the above, the Plaintiff GERALD

MOSS respectfully requests a Declaratory Judgment from the Court rejecting any attempts by the Defendants KATHERiNE MOSS, MICHAEL MOSS or MTI to impose an injunction and holding that the Plaintiff GERALD MOSSs activities do not violate the Divorce Agreement nor do they violate any provisions of state or federal law.

ACTUAL CASE OR CONTROVERSY

47.

There is an actual case or controversy between the parties because the Plaintiff,

GERALD MOSS, has a reasonable apprehension that the Defendants, KATHERINE MOSS, MICHAEL MOSS, and MTI, will take the threatened action against Plaintiffregarding his website, and will also bring suit against Plaintiff for the alleged violations of the Divorce Agreement.
COUNT I THE PLAINTIFF IS NOT IN VIOLATION OF THE 1999 DIVORCE AGREEMENT

48.

The Plaintiffrepeats and realleges the statements and allegations set forth in

Paragraphs 1-47 above. 49. The Defendants have repeatedly threatened legal action against the Plaintiff based

upon their interpretive allegation that the Divorce Agreement imposes a lifetime ban preventing the Plaintiff from ever conducting any business in the entire field of gastro enteral medicine.
50.

This interpretation is contrary to the parties intents when they drafted the Divorce

Agreement.

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51

Such an interpretation is also overly broad and unconscionably restricts the

Plaintiff in his business and livelihood.

52.

Such an interpretation ignores the fact that the Plaintiffretained control over Moss

Medical Products, Inc., under the terms ofthe Divorce Agreement.

53.

Such an interpretation also ignores the express conditions ofParagraph 6(i) of the

Divorce Agreement, conditions which limited themselves to the rights residing in specifically listed trademarks, patents and product molds conveyed by the Plaintiff to the Defendant, rather than the expansive, and entirely unlimited injunction over an entire field of technology which the Defendant had repeatedly threatened to impose.
54.

Such an interpretation disregards the important scientific advances made by the

Plaintiffand denies the public the benefit ofhis discoveries and inventions.

COUNT!! PATENT MISUSE BY THE DEFENDANTS 55.

The Plaintiffrepeats and realleges the statements and allegations set forth in

Paragraphs 1 -54 above.

56.

The Defendants have sought to impermissibly broaden the physical and temporal

scope of the patents conveyed under the Divorce Agreement, by repeatedly threatening the Plaintiff that any technology merely identified, let alone physically claimed, by the patents listed in the Divorce Agreement, is offlimits for the Plaintiff to invent and/or introduce any new or improved medical equipment, such as stomach and gastric tubes, and naso-gastric feeding devices, etc., thereby seeking to broaden the temporal scope ofthe patent claims beyond their term of expiration via threatening attempts to effectively preclude the Plaintiff GERALD MOSS

11

from ever again engaging in any activity competitive or otherwise, in the broad field of medical feeding technology.
57.

The Defendants intimidating threats that the mere filing ofpatent applications in

the broad field of enteral feeding somehow violates the Divorce Agreement by ostensibly limiting the possibility of future innovation and exclusivity by the Defendant MTI further provoke significant and anticompetitive effect upon the Plaintiff.
58.

The Defendants impermissibly extended the scope oftheir patent claims and

required the Plaintiff to take no action whatsoever to commercialize, sell, license or transfer any of the Plaintiff s patents or patent applications related to the entire field of enteral feeding, and further required the Plaintiff and his attorneys to refrain from filing any new patent applications and prosecuting any existing applications that are likewise related to the broad field of enteral feeding.
59.

Even though many of the patents conveyed in 1 999, by the Plaintiff to the

Defendants in compliance with the Divorce Agreement are now expired, the Defendants have brazenly sought to skirt federal law and extend the effectual monopoly ofpatent rights beyond statutory term limits by asserting that the Plaintiff GERALD MOSSs new inventions pertaining to feeding catheters and enteral feeding, as set forth in several patents and pending applications owned by the PlaintiffGERALD MOSS, violate the Divorce Agreement even when the Plaintiffs new inventions and corresponding patents and patent applications were developed and protected under patent rights long after the provisions of the Divorce Agreement were settled and subsequent to the expiration of the statutory terms corresponding to patents conveyed under the Divorce Agreement.

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COUNT III DEFENDANTS CLAIMS NOW BARRED BY THE STATUTE OF LIMITATIONS

60.

The Plaintiffrepeats and realleges the statements and allegations set forth in

Paragraphs 1 -59 above. 61

.

As shown by the threatening letters dating back to 2002 and 2003 the Defendants
,

have been aware of alleged material breaches for almost eleven years. 62. The statute of limitations for breach of contract claims in New York is six years,

as established by N.Y. C.P.L.R. 63.

2 13(2). 203(a), this term begins to run as soon as the

Further, as stated in N.Y. C.P.L.R.

cause of action accrues- in this case beginning at least as early as the original 2002 letter alleging material breaches. 64. Any actions brought by the Defendant based upon these claims are thus untimely.

PRAYER

WHEREFORE, the Plaintiff GERALD MOSS, prays: 1

.

For declaratoryjudgment from the Court that Plaintiff GERALD MOSS is not in

breach of the Divorce Agreement. 2. For declaratoryjudgment from the Court that the Divorce Agreement does not

impose a lifetime ban preventing the Plaintiff GERALD MOSS from ever conducting any business in the field of gastro enteral medicine. 3. For declaratoryjudgment from the Court rejecting any attempts by the Defendants

KATHERINE MOSS, MICHAEL MOSS or MTI to impose an injunction on the Plaintiff GERALD MOSSs lawful and permissible activities within the field of enteral feeding technology
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4.

For declaratoryjudgment that Defendants efforts to impermissibly broaden the

physical and temporal scope of the patents conveyed under the Divorce Agreement, by repeatedly threatening the Plaintiff that any technology merely identified, let alone physically claimed, by the patents listed in the Divorce Agreement, is off limits for the Plaintiff GERALD MOSS, thereby prohibiting his rightful operation in the field of gastro enteral medicine, and, as such, constitutes patent misuse.
5.

For declaratoryjudgment that the Plaintiff GERALD MOSS s patents and

pending patent applications covering new inventions and/or improvements to technologies associated with gastro enteral medicine are properly enjoyed and the mere filing of patent applications in the broad field of enteral feeding does not violate the Divorce Agreement. 6. Fore declaratory judgment that the Plaintiff GERALD MOSS can invent new

technical advances and/or improvements related to the Defendants MTIs products, where such new inventions and/or improvements do not violate the Defendants patent rights, particularly where the statutory term of Defendants applicable patents has expired. 7. For declaratoryjudgment that the Plaintiff GERALD MOSS s engagement in

biomedical engineering activities does not constitute a material breach of the Divorce Agreement. 8
.

Fore declaratoryjudgment that the Divorce Agreement does not establish a

prohibited technology area preventing the Plaintiff GERALD MOSS from operating in any way within the entire medical equipment business for gastrointestinal feeding technology.
9.

For declaratoryjudgment that any activity at all by the Plaintiff GERALD MOSS

in the broad field of gastro feeding technology will not invoke cause for contempt of court

14

resulting in punishment or fine, or imprisonment or both and would not place all consideration paid under the terms ofthe Divorce Agreement in jeopardy. 10. For declaratoryjudgment that the Plaintiffs website www.mossmed.com

pertaining to Moss Medical Products, Inc. (the business that was conveyed to the Plaintiff GERALD MOSS under the terms of the Divorce Agreement) does not violate the Divorce Agreement. 11
.

For declaratory judgment that all attempts by the Plaintiff GERALD MOSS to

commercialize his patented innovations would not constitute a breach of the Divorce Agreement, as well as a violation of the corresponding Court Order. 12. For declaratoryjudgment that the Plaintiff GERALD MOSSs conduct does not

violate a plethora of state and federal laws, namely, unjust enrichment and unfair competition in violation ofNew York State common law, deceptive trade practices and false advertising in violation ofsections 349-350 ofNew York States General Business Law, trademark infringement in violation ofsections 32 and 43 ofthe Lanham Act, 15 U.S.C. 1ll4 and 1125, unfair competition and false advertising in violation of section 43 ofthe Lanham Act, 15 U.S.C.

1 125, and constitutes a material breach of your Agreement and contempt of Court.
13
.

For declaratory judgment that the Plaintiff GERALD MOSS s conduct is not so

willfully flagrant it undermines the legal system and invokes cause for punitive damages. 14. For declaratory judgment that any and all of the above enumerated claims arising

out of the Plaintiff s alleged breach of contract are permanently barred by the applicable statute of limitations. 1 5. appropriate. For declaratory judgment awarding other such relief as the Court deems just and

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JURY DEMAND 16. The PlaintiffGERALD MOSS demands a trial byjury on all issues so triable.

DATED: September 12, 2013 s/Jonathan M. Madsen Jonathan M. Madsen, Bar No. 662011 Attorneys for Plaintiff Schmeiser, Olsen & Watts LLP 22 Century Hill Drive, Suite 302 Latham, New York 12110 Telephone: (518) 220-1850 Facsimile: (518) 220-1857 E-mail: aolseniplawusa.com

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