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judgment action against Ki Beom Kim (“Defendant” or “Kim”), pursuant to Rule 57 of the
Federal Rules of Civil Procedure and 28 U.S.C. § 2201 and alleges as follows:
PARTIES
principal place of business at 10403 International Plaza Drive, St. Ann, Missouri 63074.
2. Upon information and belief, Defendant Kim is a resident and citizen of St. Louis
County, Missouri.
3. This action arises under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and
2202; the Patent Laws of the United States, 35 U.S.C. §§ 101 et seq.; and Missouri state law.
This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331,
2394947
Case: 4:20-cv-01405 Doc. #: 1 Filed: 09/30/20 Page: 2 of 9 PageID #: 2
4. This Court has personal jurisdiction over Defendant Kim in that Kim has
performed acts within the Eastern District of Missouri subjecting himself to the laws of this
District, including attempting to transact and transacting business in this District; transmitting
electronic, written and verbal communications into this District; and meeting in person with
Plaintiff Ortho Solutions in this District, all relating to the underlying allegations.
substantial part of the events or omissions giving rise to the claim occurred in this District, in that
a substantial part of the property that is the subject of this action is situated in this District
(namely the patents in question), and in that Defendant Kim resides or can be otherwise found in
(“Buddemeyer”) and Matthew Malabey (“Malabey”) are the true and proper inventors of the
subject matters of the claims of the patents at issue, that Plaintiff Ortho Solutions is the sole and
exclusive owner of said patents by right of assignment from Buddemeyer and Malabey, that
Plaintiff Ortho Solutions did not engage in any misrepresentations or fraud in connection with
the filing and issuance of said patents, that Plaintiff Ortho Solutions was not unjustly enriched by
the filing and issuance of said patents, and that Plaintiff Ortho Solutions does not owe any
orthodontic products and dental sleep medicine products, with a full service orthodontic
2
Case: 4:20-cv-01405 Doc. #: 1 Filed: 09/30/20 Page: 3 of 9 PageID #: 3
patents relating to its unique and novel orthodontic products and dental sleep medicine products,
Director of Operations) met and discussed with Kim certain ideas relating to the design of a self-
10. The design presented by Kim to Ortho Solutions ultimately proved inoperable for
11. Accordingly, Buddemeyer and Malabey jointly conceived of and designed a new
orthodontic post and pin assembly that was operable for its intended purposes.
12. Buddemeyer and Malabey filed patent applications for their inventions and
13. As a result, the United States Patent and Trademark Office duly issued two
patents to Ortho Solutions, namely U.S. Patent No. D848,001 (issued on May 7, 2019) (“the ‘001
Patent”), and U.S. Patent No. 10,456,219 (issued on October 29, 2019) (“the ‘219 Patent”)
(collectively “the Ortho Solutions Patents”). See Exhibits A and B attached hereto. Of particular
note and importance, the Ortho Solutions patents did not claim the inoperable design presented
14. In February 2020, Kim filed a lawsuit against Dyna Flex, Ltd. in the Circuit Court
of the City of St. Louis, captioned Ki Beom Kim v. Dyna Flex, Ltd., Cause No. 2022-CC00363.
3
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However, Dyna Flex, Ltd. is not the record owner of the patents Kim references as the basis for
his lawsuit and therefore that case is subject to dismissal for failure to state a claim. 1
15. In his litigation against Dyna Flex, Ltd., Kim made court statements that he was
improperly excluded as an inventor on the Ortho Solutions Patents and that he should be
assigned ownership and control of at least the ‘219 Patent. By these statements, Kim implied
that the inventorship of the Ortho Solutions Patents requires correction, but notably omitted any
reference to the exclusive vehicle for such correction, namely 35 U.S.C. § 256.
16. In that litigation, Kim made court statements that the actions taken with respect to
the Ortho Solutions Patents included misrepresentations amounting to fraud and that the
ownership and control of at least the ‘219 Patent by anyone other than Kim constitutes an unjust
enrichment.
forth herein.
18. The inventions claimed in the Ortho Solutions Patents relate to a novel design for
an orthodontic post and pin assembly. The inventions claimed in the Ortho Solutions Patents
were developed and conceived jointly and solely by Buddemeyer and Malabey.
19. Buddemeyer and Malabey are the true and proper inventors of the subject matter
of the claims of the Ortho Solutions Patents as issued, as indicated on the Patents.
20. Ortho Solutions holds a recognized ownership interest in the Ortho Solutions
Patents that could be adversely affected by an action brought by Kim under 35 U.S.C. § 256 to
correct inventorship of the Ortho Solutions Patents, including exclusion of either or both of
1Plaintiff Ortho Solutions has a fictitious name registration for “DynaFlex” (with no
space between “Dyna” and “Flex”) but it is a separate legal entity from Dyna Flex, Ltd.
4
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Buddemeyer and Malabey as inventors and thereby seeking to extinguish or diminish Ortho
21. In his litigation against Dyna Flex, Ltd., Kim made court statements that he was
improperly excluded as an inventor on the Ortho Solutions Patents and that he should be
assigned ownership and control of the Ortho Solutions Patents, thereby creating in Ortho
Solutions a reasonable apprehension that Kim will bring an action under 35 U.S.C. § 256 to
correct inventorship of the Ortho Solutions Patents, including exclusion of either or both of
Buddemeyer and Malabey as inventors and thereby seeking to extinguish or diminish Ortho
22. An actual controversy exists between Ortho Solutions and Kim with respect to the
inventorship of the Ortho Solutions Patents, which controversy is substantial and of sufficient
inventorship of the Ortho Solutions Patents is correctly identified and that Kim should not be
forth herein.
25. In his litigation against Dyna Flex, Ltd., Kim made court statements that the
actions taken with respect to the Ortho Solutions Patents included misrepresentations amounting
to fraud.
26. In particular, Kim made court statements that the intention to exclude him from
patent filings was withheld from him; that the status of Kim’s design was misrepresented to him;
5
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that the amount of compensation to Kim was misrepresented to him; that the status of patent
filings was misrepresented to him; and that Kim received assurances that he would be named as
27. Kim also made court statements that these alleged actions amount to fraud under
Missouri law and that he is entitled to relief to include actual damages, costs and expenses, and
punitive damages.
28. Ortho Solutions denies that it has made any statements that constitute fraud under
Missouri law and further denies that Kim is entitled to any of his requested relief, because,
among other things, Buddemeyer and Malabey are the true and proper inventors of the subject
matter of the claims of the Ortho Solutions Patents as issued and as indicated on the Ortho
Solutions Patents, such that Kim had no right to be named as an inventor on the Ortho Solutions
29. An actual controversy exists between Ortho Solutions and Kim with respect to
any alleged fraud or misrepresentations relating to the Ortho Solutions Patents, which
30. Accordingly, Plaintiff Ortho Solutions seeks a declaratory judgment that Ortho
Solutions did not engage in any fraud with respect to Kim and the Ortho Solutions Patents,
including a declaration that Kim is not entitled to any relief, actual damages, costs and expenses,
or punitive damages.
forth herein.
6
Case: 4:20-cv-01405 Doc. #: 1 Filed: 09/30/20 Page: 7 of 9 PageID #: 7
32. In his litigation against Dyna Flex, Ltd., Kim made court statements that the
ownership and control of at least the ‘219 Patent by anyone other than Kim constitutes an unjust
enrichment.
33. In particular, Kim made court statements that at least the ‘219 Patent was based
on his design and that products were manufactured and sold based on Kim’s design, that at least
the ‘219 Patent could not have been independently developed, and that it would be unjust
enrichment for anyone other than Kim to own and control at least the ‘219 Patent.
34. Kim also made court statements that these alleged actions amount to unjust
enrichment under Missouri law and that he is entitled to relief to include actual damages, costs
and expenses, punitive damages, ownership and control of at least the ‘219 Patent as well as any
continuations or other patents or intellectual or personal property based on Kim’s design, and
injunctive relief.
35. Ortho Solutions denies that it has been unjustly enriched under Missouri law by
Kim and further denies that Kim is entitled to any of his requested relief, because, among other
things, Buddemeyer and Malabey are the true and proper inventors of the subject matter of the
claims of the Ortho Solutions Patents as issued, as indicated on the Patents, such that Kim had no
association therewith.
36. An actual controversy exists between Ortho Solutions and Kim with respect to
any alleged unjust enrichment relating to the Ortho Solutions Patents, which controversy is
37. Accordingly, Plaintiff Ortho Solutions seeks a declaratory judgment that Ortho
Solutions was not unjustly enriched by Kim with respect to the Ortho Solutions Patents,
7
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including a declaration that Kim is not entitled to any relief, actual damages, costs and expenses,
punitive damages, ownership and control of at least the ‘219 Patent as well as any continuations
injunctive relief.
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff Ortho Solutions
1. That the Court declare that the inventorship of the Ortho Solutions Patents is
correctly identified and that Kim should not be named as an inventor on either of the Ortho
Solutions Patents;
2. That the Court declare that Ortho Solutions did not engage in any fraud with
respect to Kim and the Ortho Solutions Patents, including that Defendant Kim is not entitled to
3. That the Court declare that Ortho Solutions was not unjustly enriched by Kim
with respect to the Ortho Solutions Patents, including a declaration that Kim is not entitled to any
relief, actual damages, costs and expenses, punitive damages, ownership and control of at least
the ‘219 Patent as well as any continuations or other patents or intellectual or personal property
4. That Plaintiff be awarded costs and attorneys’ fees pursuant to applicable law; and
5. That Plaintiff Ortho Solutions be awarded such other and further relief as the
8
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9
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EXHIBIT A
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Case: 4:20-cv-01405 Doc. #: 1-2 Filed: 09/30/20 Page: 1 of 11 PageID #: 12
EXHIBIT B
Case: 4:20-cv-01405 Doc. #: 1-2 Filed: 09/30/20 Page: 2 of 11 PageID #: 13
Case: 4:20-cv-01405 Doc. #: 1-2 Filed: 09/30/20 Page: 3 of 11 PageID #: 14
Case: 4:20-cv-01405 Doc. #: 1-2 Filed: 09/30/20 Page: 4 of 11 PageID #: 15
Case: 4:20-cv-01405 Doc. #: 1-2 Filed: 09/30/20 Page: 5 of 11 PageID #: 16
Case: 4:20-cv-01405 Doc. #: 1-2 Filed: 09/30/20 Page: 6 of 11 PageID #: 17
Case: 4:20-cv-01405 Doc. #: 1-2 Filed: 09/30/20 Page: 7 of 11 PageID #: 18
Case: 4:20-cv-01405 Doc. #: 1-2 Filed: 09/30/20 Page: 8 of 11 PageID #: 19
Case: 4:20-cv-01405 Doc. #: 1-2 Filed: 09/30/20 Page: 9 of 11 PageID #: 20
Case: 4:20-cv-01405 Doc. #: 1-2 Filed: 09/30/20 Page: 10 of 11 PageID #: 21
Case: 4:20-cv-01405 Doc. #: 1-2 Filed: 09/30/20 Page: 11 of 11 PageID #: 22
Case: 4:20-cv-01405 Doc. #: 1-3 Filed: 09/30/20 Page: 1 of 1 PageID #: 23
The undersigned affirms that the information provided above is true and correct.
2395833
Case: 4:20-cv-01405 Doc. #: 1-4 Filed: 09/30/20 Page: 1 of 2 PageID #: 24
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ORTHO SOLUTIONS, LC KI BEOM KIM
Michael J. Hickey, Lewis Rice LLC, 600 Washington Ave., Suite 2500, Anthony Simon, The Simon Law Firm, P.C., 800 Market St., Suite
St. Louis, MO 63101 Tel: (314) 444-7600 1700, St. Louis, MO 63101 Tel: (314) 241-2929
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Case: 4:20-cv-01405 Doc. #: 1-5 Filed: 09/30/20 Page: 1 of 2 PageID #: 26
ORTHO SOLUTIONS, LC
)
)
Plaintiff
)
v. ) Civil Action No. 20-cv-01405
KI BEOM KIM )
)
Defendant
)
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Michael J. Hickey
Bridget G. Hoy
Lewis Rice LLC
600 Washington Ave., Suite 2500
St. Louis, MO 63101
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
Case: 4:20-cv-01405 Doc. #: 1-5 Filed: 09/30/20 Page: 2 of 2 PageID #: 27
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
u I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
u Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
Date:
Server’s signature
Server’s address