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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

STARSURGICAL, INC., Plaintiff, v. APERTA, LLC, NOVOMEDICUS, INC., DIETMAR H. WITTMANN, and PAUL VAN DEVENTER, Defendants, Case No. 10CV1156

DIETMAR H. WITTMANN, Third-Party Plaintiff, v. MICHAEL DEUTSCH, Third-Party Defendant.

DECISION AND ORDER In 1987, Dr. Dietmar H. Wittmann, an employee of the Medical College of Wisconsin, invented a surgical patch for use in abdominal surgery. In 1988, he assigned the rights to the patch to the college's research foundation, which in turn granted a license to use the patch to Michael Deutsch. Deutsch attempted to obtain approval to market the patch from the Food and Drug Administration ("FDA") but was initially unsuccessful. He then went into business with Wittmann, and in 1999 they secured FDA approval and in 2000 formed Starsurgical, Inc. ("Star"), the plaintiff in this action. Deutsch owned 51% of Star and was president of the company, and Wittmann owned 49% and was vice president. They decided to market the patch as the "Wittmann Patch." Subsequently, a disagreement

developed between Deutsch and Wittmann. Wittmann objected to the manner in which Star was marketing the patch and the high price it was charging. In 2001, Deutsch registered the Wittmann Patch with the Wisconsin Secretary of State and assigned his rights to Star. In 2002, Wittmann registered the same mark in his own name with the U.S. Patent and Trademark Office ("USPTO"). In 2002, Deutsch removed Wittmann as an officer of Star. In 2009, Wittmann formed two new companies, Aperta, LLC and NovoMedicus LLC, to compete with Star. Aperta and NovoMedicus promoted a slightly different version of the patch, which the FDA approved for five or less abdominal reentries, meaning that if a surgeon reopened an abdomen more than five times, the patch had to be replaced. The Aperta/NovoMedicus patch was included in a kit with other surgical materials including a sterile drape, gauze and a razor. The kit was marketed as the "Wittmann Hypopack" and came in a box that listed its components, one of which was the Wittmann Patch. In the present action, Star sues Wittmann, Aperta, NovoMedicus and its president Paul Van Deventer claiming that they violated

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Wisconsin Law