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`Case 5:20-cv-08339-VKD Document 1 Filed 11/25/20 Page 1 of 28
`
`Stuart G. Gross (#251019)
`sgross@grosskleinlaw.com
`George A. Croton (#323766)
`gcroton@grosskleinlaw.com
`Timothy S. Kline (#319227)
`tk@grosskleinlaw.com
`GROSS & KLEIN LLP
`The Embarcadero
`Pier 9, Suite 100
`San Francisco, CA 94111
`Telephone: (415) 671-4628
`Facsimile:
`(415) 480-6688
`
`
`
`Counsel for Plaintiff Express Mobile, Inc.
`
`
`
`Steven F. Molo (pro hac vice forthcoming)
`smolo@mololamken.com
`Benoit Quarmby (pro hac vice forthcoming)
`bquarmby@mololamken.com
`Leonid Grinberg (pro hac vice forthcoming)
`lgrinberg@mololamken.com
`MOLOLAMKEN LLP
`430 Park Avenue
`New York, NY 10022
`Telephone: (212) 607-8160
`Facsimile:
`(212) 607-8161
`
`Rayiner I. Hashem (pro hac vice forthcoming)
`rhashem@mololamken.com
`Sarah J. Newman (pro hac vice forthcoming)
`snewman@mololamken.com
`Benjamin T. Sirolly (pro hac vice forthcoming)
`bsirolly@mololamken.com
`MOLOLAMKEN LLP
`The Watergate, Suite 500
`600 New Hampshire Avenue, N.W.
`Washington, D.C. 20037
`Telephone: (202) 556-2000
`Facsimile:
`(202) 556-2001
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`Case No.
`
`COMPLAINT FOR PATENT
`INFRINGEMENT
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`EXPRESS MOBILE, INC.,
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`v.
`
`
`AMAZON.COM, INC.,
`
`Defendant.
`
`
`
`
`
`
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`

`

`Case 5:20-cv-08339-VKD Document 1 Filed 11/25/20 Page 2 of 28
`
`
`
`Plaintiff Express Mobile, Inc. (“Express Mobile” or “Plaintiff ”), for its complaint against
`
`Defendant Amazon.com, Inc. (“Amazon” or “Defendant”), alleges the following:
`
`1.
`
`This is an action for patent infringement arising under the patent laws of the United
`
`NATURE OF THE ACTION
`
`States, 35 U.S.C. §§ 1 et seq.
`
`THE PARTIES
`
`2.
`
`Express Mobile is a corporation organized under the laws of the State of Delaware with
`
`a place of business at 38 Washington Street, Novato, CA 94947.
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`3.
`
`Amazon is a corporation organized under the laws of the State of Delaware with a place
`
`of business at 188 Spear Street, San Francisco, CA 94105. It can be served through its registered agent,
`
`Corporation Service Company, 251 Little Falls Drive, Wilmington, DE 19808.
`
`4.
`
`Amazon offers services throughout the United States, including in this judicial District,
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`and introduces services into the stream of commerce that incorporate infringing technology knowing
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`that those services would be used in this judicial District and elsewhere in the United States.
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`JURISDICTION AND VENUE
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`5.
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`6.
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`This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a).
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`This Court has personal jurisdiction over Amazon because it has purposefully availed
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`itself of the rights and benefits of the laws of this State and this District. Amazon resides in the
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`Northern District of California by maintaining a regular and established place of business at 188 Spear
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`St, San Francisco, CA 94105. This Court also has personal jurisdiction over Amazon because it has
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`done and is doing substantial business in this District, both generally and, on information and belief,
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`with respect to the allegations in this complaint, including Amazon’s one or more acts of infringement
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`in this District.
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`7.
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`Venue is proper in this District under 28 U.S.C. §§ 1391(b) and (c) and 1400(b).
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`Amazon has committed acts of infringement through provision of its website builder in the Northern
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`District of California and has at least one regular and established place of business in this District,
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`specifically 188 Spear St, San Francisco, CA 94105. Amazon’s office in San Francisco is a physical
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Case 5:20-cv-08339-VKD Document 1 Filed 11/25/20 Page 3 of 28
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`
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`place in the District, it is an established location where Amazon’s business has been carried out for
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`years, and Amazon publicly advertises its presence in the District. See In re Cray, Inc., 871 F.3d 1355,
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`1360-61 (Fed. Cir. 2017).
`
`Background
`
`8.
`
`Plaintiff Express Mobile is an innovator and leader in the business of developing mobile
`
`application and website design and creation platforms. Express Mobile is managed by individuals with
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`many years of technology and business experience. The CEO of Express Mobile, Steve Rempell, is the
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`inventor of the breakthrough technology held in Express Mobile’s patent portfolio. Mr. Rempell has
`
`over 50 years’ experience working in technology companies, with much of that experience focused on
`
`web-based technologies and applications.
`
`9.
`
`Before the Express Mobile invention at issue, webpages were created, stored, and
`
`rendered using code files that defined all the fixed parameters of the webpage, including, for example,
`
`the formatting and location of text, or the location, size, and aspect ratio of images. Typically,
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`webpages could not be viewed during the creation process as they would later appear in the various
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`available browsers or on different devices, and each individual webpage of a website needed to be
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`stored as a separate file. The size and formatting of the stored files led to slow download times to the
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`user’s computer, increasing the wait time for a page to load.
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`10.
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`Express Mobile developed groundbreaking improvements in the process for creating,
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`storing, and building webpages and websites. Express Mobile’s invention enables defining the
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`webpage as a collection of user settings, storing information related to those settings in a database, and
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`then later using that information to render a webpage. The page can be viewed, as it is created or
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`edited, in the same manner that it would appear on different types of screens when later accessed. The
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`result is not a collection of computer code, but instead a group of user-selected objects and settings
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`describing the final webpage. These objects and settings can be saved in a database for ease of access
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`and efficient storage. The invention allows faster loading speeds and permits more efficient storage of
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`the data used to later build the webpages. It also makes changing the webpage more efficient through
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`editing user settings rather than editing multiple lines or versions of code.
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`Case 5:20-cv-08339-VKD Document 1 Filed 11/25/20 Page 4 of 28
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`11.
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`Defendant Amazon is the largest e-commerce company in the world. Amazon sells
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`products from its own supply chain – where Amazon acts as the retailer – and also allows third-party
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`retailers to sell products through Amazon’s website. More than half of Amazon’s sales are products
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`sold by third parties.
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`12.
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`Amazon offers third-party retailers several options for customizing their Amazon
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`presence. For example, it offers Amazon Stores, which allows merchants to create custom “digital
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`storefronts” showcasing their products. Customers can browse products and make purchases directly
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`through
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`the storefronts.
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` Many companies,
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`including
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`large companies such as Samsung
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`(https://www.amazon.com/samsung),
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`Apple
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`(https://amazon.com/apple),
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`and Microsoft
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`(https://www.amazon.com/microsoft) sell products on Amazon through customized storefronts.
`
`13.
`
`Amazon Stores features a “store builder” tool that allows retailers to create custom
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`Amazon storefronts by selecting certain settings from menus. The tool presents a menu with user-
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`selectable settings that control the formatting and positioning of “tiles” that display the store’s available
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`products. The tool then generates a real-time display reflecting the selected settings – i.e., a real-time
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`preview of the finished site. Settings controlling the appearance of the final website are stored in a
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`database. When a customer accesses the storefront, the settings are retrieved from the database and are
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`used in conjunction with JavaScript “run time files” to render the final webpage for the storefront.
`
`COUNT I – Infringement of U.S. Patent No. 6,546,397
`
`14.
`
`The allegations set forth in the foregoing paragraphs 1 through 13 are incorporated into
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`this First Claim for Relief.
`
`15.
`
`On April 8, 2003, U.S. Patent No. 6,546,397 (“the ’397 patent”), entitled Browser Based
`
`Web Site Generation Tool and Run Time Engine, was duly and legally issued by the United States
`
`Patent and Trademark Office. A true and correct copy of the ’397 patent is attached as Exhibit A.
`
`16.
`
`The claimed invention of the ’397 patent resolves technical problems related to website
`
`creation and generation. Prior to the invention taught and disclosed in the ’397 patent, webpages were
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`Case 5:20-cv-08339-VKD Document 1 Filed 11/25/20 Page 5 of 28
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`generally created, stored, and rendered either by programming directly in HTML, CSS,1 or JavaScript
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`code, or by using a visual editor that produced HTML files. The result was a collection of pages of
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`computer code – typically HTML, CSS, JavaScript, or Java applets – which defined the visual layout,
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`style, and business logic of websites.
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`17.
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`Conventional website creation and generation methods suffered from many flaws.
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`Creating a webpage could be cumbersome. Webpages could not be viewed throughout the creation
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`process as they would later appear in various browsers or on different devices. Each individual
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`webpage of a website was stored as a separate HTML, CSS, or JavaScript file, which wasted computer
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`resources and required longer access times in the form of hard drive access while editing websites and
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`in the form of network traffic while downloading them. Prior-art methods also led to slow
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`downloading of the webpage file to a user’s computer and slower rendering by the browser, which
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`increased the wait time for a page to load.
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`18.
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`Unlike prior-art methods, the ’397 patent brings together disparate ideas and concepts
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`for creating, storing, and building webpages. The Express Mobile invention at issue defines webpages
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`as combinations of user-selected objects and settings stored in a database, rather than as combinations
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`of computer code. Because code files do not need to be stored, the page structure – the vast majority of
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`the HTML code itself – is created on the fly each time the page is loaded in a user browser. This
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`unconventional step of building the webpage HTML code on the fly is performed by the run time
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`engine of the invention, using data representative of the user settings. This allows the system to
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`optimize the page based on device-specific information, including the operating system, browser, and
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`screen size. Moreover, the process of defining the webpages is done through a “What You See Is What
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`You Get” or “WYSIWYG” environment, so that, as the page is created or edited, it can be viewed in
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`the same manner it will appear on different types of screens when later accessed.
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`19.
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`Express Mobile’s patents are directed at a revolutionary technological solution to a
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`technological problem – how to create webpages for the Internet in a manner that permits “what you
`
`
`1 CSS, or “Cascading Style Sheets,” is a programming language designed to interoperate with HTML
`to specify the appearance and placement of web elements.
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`Case 5:20-cv-08339-VKD Document 1 Filed 11/25/20 Page 6 of 28
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`see is what you get” editing, and a number of other improvements over the then-existing
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`methodologies. The claims are not drawn so broadly as to be divorced from the patent-eligible
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`technological improvements described in the specification.
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`20.
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`The invention claimed in the ’397 patent is not merely the routine or conventional use of
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`website creation systems and methods. Rather, the invention enables the creation of websites through
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`browser-based visual editing tools such as selectable settings panels that describe website elements,
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`with one or more settings corresponding to commands. The invention also enables retrieving that
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`information to generate a website. Those features are implemented exclusively using computer
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`technology, including using virtual machines.
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`21.
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`The invention claimed in the ’397 patent offers substantial improvements in computer
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`performance and web design. For example, the invention allows for faster loading speeds, more
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`efficient storage of webpage data, and the ability to change the webpage more efficiently by editing
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`user settings rather than multiple versions of code. The invention also permits scaling of webpages and
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`elements within the webpage to most efficiently use the screen space. Taken separately or together, the
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`claim elements of the invention significantly improve the operation of a computer and the process of
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`web design.
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`22.
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`The claims of the ’397 patent do not merely recite the performance of some business
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`practice known from the pre-Internet world along with the requirement to perform it on the Internet.
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`Instead, the claims of the ’397 patent recite one or more inventive concepts that are rooted in
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`computerized website creation technology, and overcome problems specifically arising in the realm of
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`computerized website creation technologies.
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`23.
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`The invention claimed in the ’397 patent neither preempts all ways of using website or
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`webpage authoring tools nor preempts the use of all website or webpage authoring tools or any other
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`well-known or prior-art technology. Accordingly, each claim of the ’397 patent recites a combination
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`of elements sufficient to ensure that the claim in practice amounts to significantly more than a patent on
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`an ineligible concept.
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`Case 5:20-cv-08339-VKD Document 1 Filed 11/25/20 Page 7 of 28
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`24.
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`Express Mobile is the assignee and owner of the right, title, and interest in and to the
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`’397 patent, including the right to assert all causes of action arising under that patent and the right to
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`any remedies for infringement of it.
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`25.
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`Amazon has manufactured, used, offered for sale, or sold browser-based website
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`building tools that infringed, either literally or under the doctrine of equivalents, the ’397 patent in
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`violation of 35 U.S.C. § 271(a).
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`26.
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`Upon information and belief, Amazon has infringed at least claim 1 of the ’397 patent.
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`27.
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`Claim 1 of the ’397 patent recites a method to allow users to produce Internet websites
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`on and for computers having a browser and a virtual machine capable of generating displays, said
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`method comprising: (a) presenting a viewable menu having a user-selectable panel of settings
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`describing elements on a website, said panel of settings being presented through a browser on a
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`computer adapted to accept one or more of said selectable settings in said panel as inputs therefrom,
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`and where at least one of said user-selectable settings in said panel corresponds to commands to said
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`virtual machine; (b) generating a display in accordance with one or more user-selected settings
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`substantially contemporaneously with the selection thereof; (c) storing information representative of
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`said one or more user-selected settings in a database; (d) generating a website at least in part by
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`retrieving said information representative of said one or more user-selected settings stored in said
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`database; (e) building one or more webpages to generate said website from at least a portion of said
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`database and at least one run time file, where said at least one run time file uses information stored in
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`said database to generate virtual machine commands for the display of at least a portion of said one or
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`more webpages.
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`28.
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`Amazon infringed claim 1 of the ’397 patent. During the relevant time periods, Amazon
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`Stores practiced a method to allow users to produce Internet websites called “Stores” on and for
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`computers having a browser and a virtual machine capable of generating displays. The Amazon Stores
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`Builder allowed vendors to display customized Stores showing their products, including images, text,
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`and links to other websites.
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`29.
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`By way of example, Amazon Stores Builder presented a viewable menu displaying user-
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`selectable settings that allowed users to specify which “content tiles” they wanted to appear on their
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`Store. Content tiles could include “header tiles,” “text tiles,” “image tiles,” “image with text tiles,”
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`“video tiles,” and “gallery” tiles. Amazon Stores Builder presented a viewable menu displaying user-
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`selectable settings that allowed users to specify the design of those tiles, including settings that
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`corresponded to text in text tiles, images in image tiles, etc. By way of further example, Amazon
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`Stores presented a viewable menu of buttons to create or delete content tiles. By way of further
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`example, Amazon Stores Builder allowed users to click on content tiles and edit their settings, locate
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`tiles in the desired location, etc.
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`30.
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`After a user selected any of these settings, Amazon Stores Builder updated the Store in
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`accordance with the selected settings substantially contemporaneously with the selection thereof, in a
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`preview window. A user could continue changing settings and the Store would update accordingly.
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`31.
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`On information and belief, Amazon Stores Builder stored user-selected settings in a
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`database.
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`32.
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`Those user-selectable settings corresponded to commands to a virtual machine. When a
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`setting was selected, Amazon Stores used it to generate JSON code. One or more run time files
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`containing HTML and JavaScript code communicated with the Amazon web server to send and retrieve
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`the encoded user-selected settings and thus generated Stores pages.
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`33.
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`By way of example, when a user first loaded Amazon Stores, the Amazon web server
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`sent the run time files to the user’s web browser. The run time files then communicated with the
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`Amazon web server to retrieve the user-selectable settings stored in the database, and used them to
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`generate virtual machine commands in the form of JSON code, which was sent to the web browser.
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`The web browser’s virtual machine executed the JSON code. That execution, in combination with the
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`commands in the run time files, generated and displayed the Store’s pages in accordance with the saved
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`settings.
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`34.
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`Amazon was made aware of the ’397 patent and its infringement thereof at least as early
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`as November 14, 2012, when Express Mobile provided notice to Amazon of the ’397 patent.
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`35.
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`Upon information and belief, since at least the time Amazon received notice, Amazon
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`induced others to infringe at least claim 1 of the ’397 patent under 35 U.S.C. § 271(b) by, among other
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`things, and with specific intent or willful blindness, actively aiding and abetting others to infringe,
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`including but not limited to Amazon’s partners, clients, customers, and end users, whose use of
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`Amazon Stores constituted direct infringement of at least one claim of the ’397 patent. In particular,
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`Amazon’s actions that aided and abetted others such as customers, clients, partners, developers, and
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`end users to infringe included advertising Amazon as a way for users to sell products through
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`Amazon’s website. On information and belief, Amazon engaged in such actions with specific intent to
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`cause infringement or with willful blindness to the resulting infringement because Amazon had actual
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`knowledge of the ’397 patent and knowledge that its acts were inducing infringement of the ’397 patent
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`since at least the date Amazon received notice that such activities infringed the ’397 patent.
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`36.
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`By way of example, Amazon ran graphic advertisements on its website featuring
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`infringing features of Amazon Stores. For example, Amazon ran an advertisement stating “Design
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`your Store – no coding necessary,” explaining that the store builder allows customers to use “drag-and-
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`drop tiles or predesigned templates to create a customized, multi-page Store with rich media like
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`images and video, without writing a line of code.”
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`37.
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`Another Amazon Stores advertisement reiterated the process for creating pages in
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`Stores, again highlighting the use of “predesigned templates or drag-and-drop tiles,” and emphasizing
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`the ability to “[a]dd videos, text, and images to tell your brand story and show your products in action.”
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`38.
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`Yet another advertisement highlighted the ability to “include multimedia content that
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`helps bring your brand to life,” showing an example of how such images might be arranged on the
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`page.
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`39.
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`Since November 14, 2012, and until expiration of the ’397 patent, Amazon’s
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`infringement of the ’397 patent has been willful.
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`40.
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`Amazon’s infringement has damaged and injured Express Mobile.
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Case 5:20-cv-08339-VKD Document 1 Filed 11/25/20 Page 10 of 28
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`COUNT II – Infringement of U.S. Patent No. 9,063,755
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`41.
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`The allegations set forth in the foregoing paragraphs 1 through 40 are incorporated into
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`this Second Claim for Relief.
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`42.
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`On June 23, 2015, U.S. Patent No. 9,063,755 (“the ’755 patent”), entitled Systems and
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`Methods for Presenting Information on Mobile Devices, was duly and legally issued by the United
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`States Patent and Trademark Office. A true and correct copy of the ’755 patent is attached as Exhibit
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`B.
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`43.
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`The invention claimed in the ’755 patent resolves technical problems related to
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`generating and distributing dynamic content on a device display, such as the display of a mobile device.
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`Before the patents-in-suit, content and applications for device displays were generally created using
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`code written for each individual type of device. As device types proliferated, programming content and
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`applications for each device became increasingly expensive and time-consuming. Doing so also
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`limited the ability of providers to update the capabilities of, and increase the available content for,
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`many devices.
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`44.
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`The invention of the ’755 patent resolves technical problems related to generating and
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`distributing content on a device display. The invention features a computer memory and an authoring
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`tool or Player configured to define a User Interface (“UI”) object for display on the device, where the
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`defined UI object corresponds to a web component and where each UI object is either: (1) selected by a
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`user or (2) automatically selected by the system as a preferred UI object corresponding to a symbolic
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`name of the web component. Additionally, the computer memory and the authoring tool or Player are
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`configured to build an Application consisting of one or more webpage views to provide for the display
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`of at least a portion of one or more of the webpages. These features are exclusively implemented using
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`computer technology.
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`45.
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`Unlike methods in the prior art, the ’755 patent brings together disparate ideas and
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`concepts for generating and distributing content suitable for display on different devices with varying
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`characteristics, using a combination of device-independent and device- and platform-dependent code.
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`This can include building a webpage or application using a “What You See Is What You Get” or
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`Case 5:20-cv-08339-VKD Document 1 Filed 11/25/20 Page 11 of 28
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`“WYSIWYG” environment, so that, as the page or app is created or edited, it can be viewed in the
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`same manner it will appear on different types of screens when later accessed. The invention can also
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`include an authoring tool that can create an Application, where the Application is device-independent
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`code, and a Player, where the Player is device- and platform-dependent code. The Player enables the
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`Application to function on a variety of devices or platforms, with differing functionality. This enables
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`users of the authoring tool to create and distribute device-independent Applications for different device
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`types, without individually tailoring the device-independent Applications for each device type.
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`46.
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`The claims of the ’755 patent do not merely recite the performance of some business
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`practice known from the pre-Internet world along with the requirement to perform it on the Internet.
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`Instead, the claims of the ’755 patent recite one or more inventive concepts that are rooted in the
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`computerized generation of content on a device display, such as a mobile device, and overcome
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`problems specifically arising in the realm of computerized display content generation technologies.
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`47.
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`The claims of the ’755 patent recite an invention that is not merely the routine or
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`conventional use of systems and methods for the computerized generation of content on a device
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`display. Instead, the invention describes systems for use with devices with authoring tools or Players
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`specific to each device and Applications that are independent of the device.
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`48.
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`The invention claimed in the ’755 patent offers substantial improvements in device
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`performance and web or application design. For example, the invention allows for faster loading
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`speeds, more efficient storage of webpage or application data, and the ability to change a webpage or
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`application more efficiently by editing user settings rather than multiple versions of code. The
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`invention also permits scaling of webpages and elements within the webpage, or applications and
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`elements within the application, to most efficiently use the screen space. Taken separately or together,
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`the claim elements of the invention significantly improve the operation of a computer and the process
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`of web design.
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`49.
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`The invention claimed in the ’755 patent neither preempts all ways for the computerized
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`generation of content on a device display, such as a mobile device, nor preempts the use of all
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`Case 5:20-cv-08339-VKD Document 1 Filed 11/25/20 Page 12 of 28
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`authoring tools or Players for the computerized generation of content on a device display, such as a
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`mobile device, or any other well-known or prior-art technology.
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`50.
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`Accordingly, each claim of the ’755 patent recites a combination of elements sufficient
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`to ensure that the claim in practice amounts to significantly more than a patent on an ineligible concept.
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`51.
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`Express Mobile is the assignee and owner of the right, title, and interest in and to the
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`’755 patent, including the right to assert all causes of action arising under the patent and the right to any
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`remedies for infringement of it.
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`52.
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`Amazon has manufactured, used, offered for sale, or sold browser-based website
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`building tools that infringe, either literally or under the doctrine of equivalents, one or more claims of
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`the ’755 patent in violation of 35 U.S.C. § 271(a).
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`53.
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`Upon information and belief, Amazon has infringed and continues to infringe at least
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`claim 23 of the ’755 patent.
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`54.
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`Claim 23 of the ’755 patent recites a method of providing information to a device having
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`a display from a web component of a web service to a device on a network, said method comprising:
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`accepting, on the device, a first code over the network, where said first code is device-platform-
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`dependent; accepting, on the device, a second code over the network, where said second code is device-
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`independent and includes a plurality of symbolic names of inputs and outputs associated with the web
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`service; and executing said first code on the device, where the symbolic names are provided from a
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`registry of one or more web components related to inputs and outputs of a web service obtainable over
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`a network, where the web service requires both an input symbolic name and one or more associated
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`input values and returns one or more output values having an associated output symbolic name, and
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`where the registry includes (a) symbolic names required for evoking one or more web components each
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`related to a set of inputs and outputs of a web service obtainable over a network, where the symbolic
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`names are character strings that do not contain either a persistent address or pointer to an output value
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`accessible to the web service, and (b) the address of the web service; where said executing includes:
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`processing said symbolic names of the second code on the device, transmitting processed instructions
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`from the device to the web service, and accepting a third code on the device over the network, where
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`Case 5:20-cv-08339-VKD Document 1 Filed 11/25/20 Page 13 of 28
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`said third code is a device-independent third code including the output of the web component provided
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`by the web service over the network and in response to the second code.
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`55.
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`Amazon infringes claim 23 of the ’755 patent through a combination of features that
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`collectively practice each limitation of claim 23. Amazon Stores practices a method for providing
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`information to a device having a display, including a web browser. The information comes from a web
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`service operating on the Amazon web server.
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`56.
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`Amazon Stores accepts and executes device- and platform-dependent code from the
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`Amazon web server, including HTML, CSS, and JavaScript. It also accepts device-independent code
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`from the Amazon web server, which includes symbolic names of inputs and outputs. Unlike the
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`device-platform-independent code, the device-dependent code is written for specific device platforms
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`and devices, such as browsers, laptops, tablets, or smartphones.
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`57.
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`The symbolic names are provided from a registry of web components related to inputs
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`and outputs obtainable over a network. The web components include text content tiles, image content
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`tiles, video content tiles, gallery content tiles, hyperlinks, and other web components.
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`58.
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`The Amazon Stores registry contains the address of a web service available over a
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`network (executing on the Amazon web server) and symbolic names related to inputs and outputs of the
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`web service. The symbolic names are character strings that do not contain either a persistent address or
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`pointer to an output value. The Amazon web server accepts both an input symbolic name and one or
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`more associated input values from a user and returns one or more outputs having an associated
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`symbolic name.
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`59. When the browser executes the code provided to it, it processes the sy