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VOL. 123 | NO. 250 | Tuesday, December 23, 2008

Luminetx Sues Former Execs

By Tom Wilemon

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Editor’s Note: On Oct. 9, 2009, it was announced that Roxane Bischofberger and Luminetx Corp. settled their dispute amicably on terms agreeable to both sides, and all claims and counterclaims have been dismissed. The litigation was resolved pursuant to a confidential settlement.

Memphis-based Luminetx Corp. is accusing two former executives of allegedly taking trade secrets to a company that it is suing for patent infringement.

Luminetx filed suit last week against Greg Candelmo, its former vice president of sales, and Roxane Bischofberger, its former director of clinical research, in Shelby County Chancery Court, according to the The Daily News Online, memphisdailynews.com.

That suit comes on the heels of a federal patent infringement suit that Luminetx filed in April against AccuVein LLC.

AccuVein, which is based in Cold Spring Harbor, N.Y., is launching a product that enables veins to be viewed easily underneath the skin. Luminetx began selling a product with this function, the VeinViewer, in fall 2006.

Herb Zeman, the founder of Luminetx, is the inventor of the VeinViewer technology. Luminetx contends that AccuVein is infringing the patent awarded to Zeman in 1999, according to the complaint Luminetx filed in federal court.

In an answer to that complaint, AccuVein denies any patent infringement.

Stephen Conlon, the president of AccuVein, declined to comment on the Chancery Court filing because his company is not a defendant in that suit. However, he did speak to the federal lawsuit alleging patent infringement.

“We are aware of the lawsuit, naturally,” Conlon said. “We are vigorously defending it. We’re highly confident that we are going to prevail in the suit.”

His company’s product will be on the market in March, he said.

The federal case is scheduled for a jury trial in January 2010.

In the second lawsuit, which was filed last week in Shelby County Chancery Court, AccuVein is mentioned throughout the court filing.

Candelmo, now an employee of AccuVein, has provided it with information on Luminetx customers and sales force since his employment ended with the Memphis company in April, according to the court papers.

“On or about October 2008, Candelmo on behalf of AccuVein directly contacted Luminetx customers about the AccuVein device,” the complaint states. “The confidential information utilized by Candelmo to contact these Luminetx customers constituted confidential information under the Candelmo (confidentiality agreement) and trade secrets under Tennessee law. Candelmo’s use of such confidential information during his employment with AccuVein constitutes a breach of the Candelmo (confidentiality agreement) by Candelmo.”

The complaint alleges that also in October, a representative of AccuVein began trying to recruit members of the Luminetx sales force. Luminetx contends that the names of the sales staff could only have been obtained through Candelmo.

Bischofberger does not work for AccuVein but provided the company with trade secrets when she tried to obtain a job there, Luminetx alleges.

“As part of her effort to gain employment with AccuVein, Bischofberger intentionally, maliciously and wrongfully solicited and obtained the disclosure of highly confidential and proprietary information regarding Luminetx’s product development plans from at least one of Luminetx’s employees,” the complaint states. “Bischofberger exploited a professional relationship that she had developed with that employee and wrongfully procured that confidential information.

“Upon obtaining the confidential information from the Luminetx employee, and in violation of her common law and contractual duties to maintain the secrecy of that information, Bischofberger forwarded that information to a representative of AccuVein.”

The complaint filed last week in Chancery Court on behalf of Luminetx only gives one side of a dispute. Candelmo and Bischofberger have not filed answers to the complaint.

Candelmo, who is now vice president of strategic accounts for AccuVein, said Monday that he had just received notice of the lawsuit that morning and needed to check with his attorney before commenting.

Attempts by The Daily News to contact Bischofberger were not successful.

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