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JOEL C. BAIOCCHI, State Bar No. 107095 LAW OFFICE OF JOEL C. BAIOCCHI Post Office Box 67 Dutch Flat, California 95714 530-389-9175 530-389-9176 FAX Attorney for Plaintiff MARVIN L. NIES

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

MARVIN L. NIES, Plaintiff, v. SHAFTER CHERRY ORCHARD LP, a California Limited Partnership; Does 1 through 20, inclusive, Defendants.
______________________________________

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CASE NO. COMPLAINT FOR PATENT INFRINGEMENT; CONVERSION; AND UNFAIR COMPETITION DEMAND FOR JURY TRIAL

Plaintiff Marvin L. Nies, by and through his attorney, hereby complains against the above-named defendants and alleges as follows: NATURE OF THE ACTION 1. This action arises out of defendants infringement of plaintiff Marvin L. THE PARTIES 2. Plaintiff Marvin L. Nies is an individual residing at 9296 East Kettleman Lane, Lodi, California.
1 COMPLAINT FOR PATENT INFRINGEMENT

Nies United States plant patent.

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3.

Upon information and belief, defendant SHAFTER CHERRY

ORCHARD, LP, is a Limited Partnership organized and existing under the laws of the State of California, doing business within the State of California, with its principal place of business located in the County of San Joaquin, State of California, at 500 North Jack Tone Road, Stockton, California 95215. 4. The true names, capacities and identities of defendants sued herein and under the fictitious names of DOES 1 through 20, inclusive, whether individual, corporate, or otherwise, are unknown to plaintiff at this time, and plaintiff will amend this complaint by inserting the true names of said defendants when the true names and identities are ascertained. Plaintiff is informed and believes, and thereon alleges that each of the defendants designated herein as DOES 1 through 20, inclusive, is legally responsible in some manner for the events and happenings herein referred to, and all of plaintiffs injuries and damages were proximately caused by said defendants. 5. Plaintiff is further informed and believes and thereon alleges that at all times herein mentioned, each of the defendants were acting as the agents, employees, servants, partners, and/or joint venturers of the remaining defendants, and all the acts complained of herein were done within the course and scope of said agency, employment, servitude, partnership and/or joint venture, and that all the acts alleged herein committed by each defendant were ratified and approved by the remaining defendants and/or done with the knowledge, consent, and permission of the other defendants. JURISDICTION 6. These claims for relief arise under the Laws of the United States, namely the patent laws of the United States, as well as the statutory and common laws of the State of California. 7. This Court has exclusive jurisdiction over the claim for relief for patent infringement, without regard to the amount in controversy or the citizenship of the
2 COMPLAINT FOR PATENT INFRINGEMENT

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parties, under 28 U.S.C. section 1338 because the action seeks declaratory relief, injunctive relief, and damages under 35 U.S.C. section 271 and sections 281 through 285 for infringement of patents. 8. This Court has supplemental jurisdiction over the remaining claims for relief, without regard to the amount in controversy or the citizenship of the parties, under 28 U.S.C. Section 1367(a), because these claims arise out of the same set of facts and circumstances and form part of the same case or controversy under Article 3 of the United States Constitution. VENUE 9. Venue is proper in this judicial district under 28 U.S.C. sections 1391 and 1400(b) because: (1) defendants reside in the Eastern District of California and are subject to personal jurisdiction in the Eastern District of California; and (2) a substantial part of the events giving rise to plaintiffs claims occurred in the Eastern District of California. Upon information and belief, defendants conduct business on a regular basis in this judicial district and have infringed plaintiff Marvin L. Nies patents in this district. Plaintiff has a substantial interest in enforcing his intellectual property rights in this district and in remedying infringement occurring in this district. FIRST CAUSE OF ACTION PATENT INFRINGEMENT 10. Plaintiff hereby refers to and incorporates by reference each and every allegation contained through paragraphs 1 through 9 above as though the same were fully set forth herein. 11. United States Patent No. PP 9,368 was duly and legally issued on November 14, 1995. A copy of the 9,368 Patent is attached hereto as Exhibit A. The patent is with respect to a variety of cherry developed by plaintiff and commonly known as Early Red and Early Garnet.
3 COMPLAINT FOR PATENT INFRINGEMENT

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12. 13 .

Plaintiff Marvin L. Nies is the owner of the 9,368 Patent (Patent-inThrough the propagation of certain cherry trees, such as those of the

Suit) with full and exclusive right to bring suit and enforce these patents. Early Garnet, and Early Red, varieties, defendants have used, sold, or offered to sell, and will continue to use, sell, or offer to sell, cherry trees that infringe one or more claims of the Patent-In-Suit under 35 U.S.C. section 271(a),(b),(c), and/or (f)literally, and/or under the doctrine of equivalents, without license thereto. 14. Through the propagation of their cherry trees, defendants have induced infringement of, and will continue to induce infringement of, one or more claims of the Patent-In-Suit under 35 U.S.C. section 271(b) and/or(f), literally and/or under the doctrine of equivalents, without license thereto, 15. Upon information and belief, defendants have deliberately and intentionally, and with knowledge of the Patent-In-Suit infringed upon and have continued to infringe upon the Patent-In-Suit after becoming aware of the existence of the patents covering the cherry trees described herein. 16. As a direct and proximate consequent of the acts and practices of defendants, the plaintiff has been is being, and, unless such acts and practices are enjoined by the Court, will continue to be injured in his business and property rights, and has suffered, is suffering, and will continue to suffer injury and damages for which he is entitled to and for relief under 35 U.S.C. section 284, including treble damages. 17. As a direct and proximate consequent of the acts and practices of defendants, defendants have also caused, are causing, and, unless such acts and practices are enjoined by this Court, will continue to cause irreparable harm to the plaintiff for which there is no adequate remedy at law, and for which plaintiff is entitled to injunctive relief under 35 U.S.C. section 283. WHEREFORE, plaintiff prays for judgment against defendants as set firth fully below.
4 COMPLAINT FOR PATENT INFRINGEMENT

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SECOND CAUSE OF ACTION CONVERSION 18 . Plaintiff hereby refers to and incorporates by reference each and every allegation contained in paragraphs 1 through 17 above as though the same were fully set forth herein. 19 . Defendants have converted property that, at the time of the conversion, lawfully belonged to plaintiff, including cherry trees that are covered by the Patent-InSuit. The total value of the property is undetermined and subject to proof at trial. 20. By the acts herein alleged, defendants took the above-mentioned property from plaintiffs possession, converted the same to their own use, and have deprived the plaintiff of his exclusive rightful use and benefits of the property. 21. Defendants have failed and refused to return the property. As the lawful owner of the converted property, plaintiff is entitled to return of the property and to damages in an amount according to proof at trial. 22. Defendants above-described actions were committed willfully, with conscious disregard of plaintiffs rights, and with the intent of depriving plaintiff of his rights and property, so as to justify an award of exemplary and punitive damages., WHEREFORE, plaintiff prays for judgment against defendants as set forth fully below. THIRD CAUSE OF ACTION UNFAIR COMPETITION 23. Plaintiff hereby refers to and incorporates by reference each and every allegation contained in paragraphs 1 through 22 above as thought he same were fully set forth herein. 24. The above acts are violations of California law and federal law and therefore constitute an unlawful business practice with the meaning of California
5 COMPLAINT FOR PATENT INFRINGEMENT

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Business and Professions Code section 17200. 25. Suit. 26. As a direct and proximate result off defendants conduct, plaintiff has PRAYER WHEREFORE, plaintiff Nies prays for judgment against defendants as follows: 1. That this Court enjoin and restrain defendants, their respective agents, servants employees, attorneys, and those persons in active concert or participation with them, from further infringement of the Patent-In-Suit; 2. That this Court assess against defendants and award to plaintiff Nies compensatory damages under 35 U.S.C. section 284 sufficient to compensate plaintiff for defendants infringement of the Patent-In-Suit; 3. That this Court find this to be an exceptional case within the meaning of 35 U.S.C. section 285, entitling plaintiff to an award of reasonable attorney fees, expenses and costs in this action; 4. 5. competition; 6. 7. For general and special damages according to proof at trial; For exemplary or punitive damages in an amount reasonably related to That this Court find defendants actions to constitute willful That this Court find defendants actions to constitute unfair competition, infringement of the Patent-In-Suit, thereby entitling plaintiff to treble damages; and impose the maximum penalty permitted by the statute for each instance of unfair been denied royalties and business revenues that right fully belong to plaintiff. The defendants acts have and are likely to continue to deny plaintiff royalties and business revenues that he is entitled to as the owner of the Patents-In-

plaintiffs actual damages and defendants wealth, and sufficiently large to be an example to others and to deter said defendants and others from engaging in similar conduct in the future;
6 COMPLAINT FOR PATENT INFRINGEMENT

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8.

For such other and further relief as the Court may deem just and proper. JURY DEMAND

Under Rule 38(b) of the Federal rules of Civil Procedure, plaintiff Nies hereby demands trial by jury on all issues triable to a jury.

DATED: May 20, 2013

LAW OFFICE OF JOEL C. BAIOCCHI By: /s/__________________________ JOEL C. BAIOCCHI Joel C. Baiocchi, California SBN 107095 PO Box 67 Dutch Flat CA 95714 530-389-9175 Telephone 530-389-9176 Facsimile ATTORNEY FOR PLAINTIFF MARVIN L. NIES

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EXHIBIT A TO COMPLAINT ________________________________________ United States Patent PP9,368 Nies November 14, 1995 ________________________________________ Cherry tree `Early Red` Abstract The present invention relates to a cherry tree and more particularly to a new and distinct variety broadly characterized by a tree of medium size and vigor, upright, vase formed, hardy, foliated with large, ovate, abruptly acuminate, acutely pointed, moderately coarse crenate leaves, that is inclined to be a very regular, very precocious bearing tree, with a lower chilling requirement than any commercial variety known to me presently grown in the United States, blooming approximately five (5) days ahead of Ruby (U.S. Plant Pat. No. 4,436), a low chilling variety, in my experimental orchard located near Lodi, County of San Joaquin, Calif., and four (4) days ahead of Tulare (patented), in my test plot in Orange Cove, County of Fresno, Calif. The present variety has very short stems, very firm textured fruit, being equal in firmness to mid-season commercial varieties, resembling Garnet (U.S. Plant Pat. No. 4,431) in fruit shape, maturing in Lodi, Calif., the first week of May, with full uniform maturity on May, 2, 1993, the fruit being uniformly large, having excellent flavor, excellent soluble solids, moderate acidity, very agreeable sugar-acid ratio, very glassy external appearance being shiny red over the total area of the fruit, semi-free in type and with fruit flesh that is very dark, inky, red in color when the fruit attains dark red maturity. The variety was developed as a hybridized seedling of Garnet as the selected seed parent and Ruby as the selected pollen parent. ________________________________________ Inventors: Nies; Marvin L. (Lodi, CA) Appl. No.: 08/383,925 Filed: February 6, 1995 ________________________________________ Current U.S. Class: PLT/181 Current International Class: A01H 005/00 () Field of Search: Plt/37 ________________________________________ References Cited [Referenced By] ________________________________________ U.S. Patent Documents PP4431 June 1979 PP4436 July 1979 PP8721 May 1994 Nies Nies Calder COMPLAINT EXHIBIT A PAGE 1 8 COMPLAINT FOR PATENT INFRINGEMENT

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Primary Examiner: Feyrer; James R. ________________________________________ Claims ________________________________________ I claim: 1. A new and distinct variety of cherry tree, substantially as illustrated and described, being of medium vigor and size, the fruit strongly resembling Garnet in form, size, color and external appearance, but having a somewhat shorter thicker fruit stem, equivalent firmness of flesh and toughness of the skin, darker red flesh color and darker red juice at maturity, fruit ripening more evenly, picking ripe twelve (12) days earlier, having a lower chilling requirement, more precocious, the tree having equivalent tolerance for higher temperatures with good resistance to the development of spurs and doubles, but being more resistant to the development of sutures in warmer climates. ________________________________________ Description ________________________________________ FIELD OF INVENTION The present variety of cherry tree has been denominated varietally as "Early Red", however, it is anticipated that this variety of cherry tree, along with the fruit produced, will be marketed under the Trademark "Early Garnet". This variety is the outgrowth of a plant breeding program which has been conducted by me on a continuous basis since 1957 in my Experimental orchard near Lodi, County of San Joaquin, Calif.; the purpose of which program has been to develop new and distinct varieties of cherry trees for commercial growing of fruit in warmer, lower chilling, earlier production areas, the tree to have good heat tolerance, fruit that is large, firm, early ripening, with a classy appearance, resistant to the development of suture, spurs, doubles, outstanding flavor, non-astringent, non-browning skin and flesh, adequate disease and insect resistance, with higher than normal soluble solids and medium acidity. The present variety has achieved these objectives. This variety of cherry tree is embraced by Subclass 37, Plants, of the Plant Patent Office Manual Of Classification. PRIOR VARIETIES Among the existing varieties of cherry trees which are known to me are those mentioned herein; to-wit Mahaleb rootstock (unpatented), Colt rootstock (U.S. Plant Pat. No. 4,059), Tulare (U.S. Plant Pat. No. 6,407), Garnet (U.S. Plant Pat. No. 4,431), Ruby (U.S. Plant Pat. No. 4,436). Hative de Burlat (Unpatented), Bing (unpatented), and Brooks (U.S. Plant Pat. No. 6,676). COMPLAINT EXHIBIT A PAGE 2 9 COMPLAINT FOR PATENT INFRINGEMENT

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 ORIGIN OF THE VARIETY The present variety, denominated varietally as "Early Red", relates to a distinct variety of cherry tree originated by me, the fruit of which was first observed by me in 1982 in the seedling block in my experimental orchard in Lodi, County of San Joaquin, Calif. The present variety developed by me in a cultivated area of my experimental orchard at the Marvin L. Nies Ranch near Lodi, County of San Joaquin, Calif., was initiated in 1976 by crossing the selected seed parent Garnet with the selected pollen parent Ruby, which resulted in seeds from the seed parent, which when germinated and grown, produced a large number of seedlings, one of which was the present variety; the location of which in the seedling block was recorded in my Breeding Records as Seedling T 7-64-2, and which when grown to maturity, evidenced novel and distinctive characteristics, and I therefore selected it for asexual reproductions preparatory to patenting and ultimate commerical growing thereof. ASEXUAL REPRODUCTION OF THE VARIETY Subsequent to the origination of the present variety of cherry tree, I asexually reproduced the selection on Mahaleb (unpatented) and Colt (U.S. Plant Pat. No. 4,059) rootstocks in my experimental orchard near Lodi, County of San Joaquin, Calif., by budding and grafting, and such reproduction of plant and fruit characteristics were true to the original plant at maturity in all respects. SUMMARY OF VARIETY My first observation of the fruit of this variety was made in 1982 in my experimental orchard seedling block in Lodi, San Joaquin County, Calif. What set the present variety apart from the other seedlings was that it bloomed very early indicating a low chilling cultivar, had very firm fruit that was firmer than Ruby, equal in firmness to the very firm early mid-season Garnet and mid-season Bing, considereably firmer than the medium firm Brooks; with a very short thick stem, exceedingly dark red flesh and juice, resistance to suture, spurring, and doubling of the fruit, excellent flavor, fruit form similar to the seed parent Garnet, a very desirable shiny, glassy appearing fruit, and with a lower chilling requirement than that of any cherry variety known to me grown commercially in California. All of the above enumerated desirable qualities converging in one seedling made this selection a candidate for the ultimate commercial growing thereof. This variety's unusually firm fruit combined with earliness in ripening, is in my experience as a breeder of new cherry varieties, genetically out of the norm. All early ripening cherry varieties, known to me, are soft; indicating a genetic link between softness and early ripening. The quite firm Ruby cherry, which ripens seven (7) days after the very soft, early maturing Hative de Burlat cherry variety; is the earliest firm commercial cherry variety presently grown in California. The present variety is six (6) days earlier in maturity than Ruby, on (1) to two (2) days later than Hative de Burlat and four (4) days earlier than Brooks (patented). The heat tolerance of the tree, firmness of the fruit, very short stems, (which should minimize damage to the fruit during periods of high winds), resistance to COMPLAINT EXHIBIT A PAGE 3 10 COMPLAINT FOR PATENT INFRINGEMENT

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 suture, spurs, and doubling; creates an opportunity to grow higher quality, firm early cherries, not only in the present higher chilling commercial production areas, but also in the lower chilling, windier, low humidity, higher temperature locations. The present variety is very precocious, being similar to Ruby the pollen parent, coming into bearing one year earlier than most standard varieties. Garnet, the seed parent, by comparison is slower to bear fruit, especially on young vigorous trees. It is anticipated that limiting the number of pollenizers, more severe pruning of the trees, especially in warmer, drier climates, will be necessary to obtain larger sized fruit that is more desirable in the marketplace. DRAWING The accompanying photograph exhibits six (6) whole fruits positioned to display the characteristics of the skin color and form, on a representative branch with leaves. POMOLOGICAL CHARACTERISTICS The botanical details of this new and distinct variety of cherry tree--with color definitions (except those in common color terms) referenced to The Wilson Colour Chart I and II, published by the British Colour Council--Horticultural Color Chart (1938) are as follows: Tree: Size.--Medium. Vigor.--Medium. Growth.--Upright-spreading. Density.--Dense. Form.--Vase-formed. Hardiness.--Hardy. Production.--Very precocious. Bearing.--Very regular bearer. Trunk: Size.--Stocky. Texture.--Medium. Branches: COMPLAINT EXHIBIT A PAGE 4 11 COMPLAINT FOR PATENT INFRINGEMENT

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Size.--Stocky. Texture.--Medium. Color.--Reddish brown on younger growth. Gray dull on older wood. Lenticals.--Number: numerous. Size: Medium large. Orientation -- perpendicular to the edge of the branch. Leaves: Size.--Large. Average length (25 leaves) 15.2 cm. Average width (25 leaves) 7.5 cm. Form.--Ovate. Abruptly acuminate. Acutely pointed. Thickness.--Thick. Color.--Top of leaf-dark green. Bottom of leaf-light green. Texture.--Smooth. Margin.--Crenate. Petiole.--Medium length -- averaging 4.2 cm in length. Medium thickness. Pigmented -Dahlia Purple (P 9/31). Glands.--Number-variable-usually four (4) -- sometimes six (6). Compressed. Mostly mixture of alternate-opposite configurations -- occasionally on some petioles, glands are opposite some alternate. Large. Light red. Positioned on petiole adjacent to blade. Stipules.--Two (2) -- one (1) on each side of petiole. Flower buds: Hardiness.--Hardy. Size.--Medium. Length.--Medium. Form.--Conic. Flowers: COMPLAINT EXHIBIT A PAGE 5 12 COMPLAINT FOR PATENT INFRINGEMENT

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Blooming period.--Compact-no straggle bloom-resulting in even maturity. Fruit: Maturity when described.--Eating ripe -- May 2, 1994. Date of first picking.--May 2, 1994. All fruit picked at one time. Size.--Very uniform. Large. Average diameter -- 2.6 cm. Average size in suture plane -- 2.2 cm. Form.--Uniform, Symmetrical transversely in the suture plane. Globose -- broadly oblate. Depressed at the apex-with the depression extending a short distance up the suture line. Compressed in the suture plane. Suture.--Shallow. Inconspicuous. Extends from base beyond apex. Ventral surface.--Rounded strongly from base to near apex. Narrow dark red pigmented line from base to apex. Stem cavity.--Flaring and circular. Rounded. Elongated in suture plane. Color.--Dark red when fully mature. Base.--Rounded. Truncate. Apex.--Short. Rounded. Pistil point.--Apical. An Inconspicuous brown abscission point. Ripening span.--Very even ripening. One picking. COMPLAINT EXHIBIT A PAGE 6 13 COMPLAINT FOR PATENT INFRINGEMENT Date of bloom.--Mar. 10, 1993. Very early compared to standard varieties. Petals.--Size: Medium. Length -- 17 mm. Width -- 16 mm. Color -- Pure white, Iridescent. Conspicuously veined, with shell like appearance. Petals significantly separated from each other on the hypanthium barely touching further removed in the corolla. Mostly notched at the apex and with small, widely spaced serrations 1/3 distance back from apex. Filament length.--1 cm. Stigma length.--1.5 cm. Hypanthium.--Medium-five (5) sepals-strongly reflexed on older flowers.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Down.--Wanting. Surface.--Glassy-shiny. Flesh: Color.--Very dark red (Currant Red 821/2) -- fully mature fruit. Surface of pit cavity.--Very dark red. Currant Red (821). Amygdalin.--Wanting. Texture.--Firm-fine-crisp. Aroma.--Wanting. Fibres.--Few-Fine. Ripens.--Evenly. Flavor.--Excellent at full maturity. Eating quality.--The best. Excellent soluble solids. Moderate acidity. Tendency to crack.--None in dry weather. Some to significant amounts under certain wet weather conditions. Stone: Type.--Semi-free. COMPLAINT EXHIBIT A PAGE 7 14 COMPLAINT FOR PATENT INFRINGEMENT Skin: Thickness.--Medium. Texture.--Medium. Tenacity.--Tenacious to flesh. Tendency to crack.--None in dry weather. Some to significant amounts in certain years during wet weather conditions. Color.--Currant Red (8/21) -- mature fruit. Narrow -- very dark red stripe (Garnet Lake 8/28) on ventral surface from base to apex.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Size.--Medium. Average length -- 1 cm. Average width -- 1 cm. Average breadth -- 8.5 mm. Form.--Globose-oval. Base.--Straight-oblique. Hilum.--Narrow. Oblong. Apex.--Rounded. Sides.--Equal. Surface.--Smooth from dorsal edge to ridged ventral surface -- broadly furrowed on smooth surface 1/4 of the distance from base to apex. Ridges.--Jagged. Ventral Edge.--Thick-with wing towards base. Dorsal Edge.--Narrow ridge. Color.--Egyptian Buff (407/1). Form.--Oval. Taste.--Very bitter. Viability.--Very low. Amygdalin.--Abundant. Use: Market -- dessert -- shipping. Keeping quality: Good. Resistance to insects and diseases: No unusual susceptibilities noted. Shipping quality: Good -- both local and long distance. Variance in botanical details: Although the new variety of cherry possesses the described characteristics under the ecological conditions at Lodi, Calif., in the Northern part of the San Joaquin Valley, it is to be expected some variations in these pomological characteristics may occur when grown in areas with different climatic conditions, different soil types, and/or varying cultural practices. COMPLAINT EXHIBIT A PAGE 8 15 COMPLAINT FOR PATENT INFRINGEMENT