Case 1:22-cv-02164-KLM Document 1 Filed 08/23/22 USDC Colorado Page 1 of 9
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`
`Civil Action No.: 1:22-cv-02164
`
`MELLACONIC IP LLC, a Texas limited liability company,
`
` Plaintiff,
`
` v.
`
`PROCARE SOFTWARE, LLC, a Delaware limited liability company,
`
` Defendant.
`
`
`
`COMPLAINT FOR INFRINGEMENT OF PATENT
`
`
`
`Now comes Plaintiff, Mellaconic IP LLC (“Plaintiff” or “Mellaconic”), by and through
`
`undersigned counsel, and respectfully alleges, states, and prays as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is an action for patent infringement under the Patent Laws of the United States,
`
`Title 35 United States Code (“U.S.C.”) to prevent and enjoin Defendant ProCare Software, LLC
`
`(hereinafter “Defendant”), from infringing and profiting, in an illegal and unauthorized manner,
`
`and without authorization and/or consent from Plaintiff from U.S. Patent No. 9,986,435 (“the ‘435
`
`Patent” or the “Patent-in-Suit”), which is attached hereto as Exhibit A and incorporated herein by
`
`reference, and pursuant to 35 U.S.C. §271, and to recover damages, attorney’s fees, and costs.
`
`THE PARTIES
`
`2.
`
`Plaintiff is a Texas limited liability company with its principal place of business at
`
`6009 West Parker Road – Suite 149-1027, Plano, Texas 75093.
`
`3.
`
`Upon information and belief, Defendant is a corporation organized under the laws
`
`of Delaware, having a principal place of business at 1125 17th Street – Suite 1800, Denver,
`
`

`

`Case 1:22-cv-02164-KLM Document 1 Filed 08/23/22 USDC Colorado Page 2 of 9
`
`Colorado 80202. Upon information and belief, Defendant may be served with process c/o C T
`
`Corporation System, 7700 East Arapahoe Road – Suite 220, Centennial, Colorado 80112.
`
`4.
`
`Plaintiff is further informed and believes, and on that basis alleges, that Defendant
`
`operates the website www.procaresoftware.com, which is in the business of providing
`
`communication services, amongst other things. Defendant derives a portion of its revenue from
`
`sales and distribution via electronic transactions conducted on and using at least, but not limited
`
`to, its Internet website located at ww.procaresoftware.com, and its incorporated and/or related
`
`systems (collectively the “Defendant Website”). Plaintiff is informed and believes, and on that
`
`basis alleges, that, at all times relevant hereto, Defendant has done and continues to do business in
`
`this judicial district, including, but not limited to, providing products/services to customers located
`
`in this judicial district by way of the Defendant Website.
`
`JURISDICTION AND VENUE
`
`5.
`
`This is an action for patent infringement in violation of the Patent Act of the United
`
`States, 35 U.S.C. §§1 et seq.
`
`6.
`
`The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
`
`§§1331 and 1338(a).
`
`7.
`
`This Court has personal jurisdiction over Defendant by virtue of its systematic and
`
`continuous contacts with this jurisdiction and its presence in this District, as well as because of the
`
`injury to Plaintiff, and the cause of action Plaintiff has risen in this District, as alleged herein.
`
`8.
`
`Defendant is subject to this Court’s specific and general personal jurisdiction
`
`pursuant to its substantial business in this forum, including: (i) at least a portion of the
`
`infringements alleged herein; (ii) regularly doing or soliciting business, engaging in other
`
`persistent courses of conduct, and/or deriving substantial revenue from goods and services
`
`
`
`2
`
`

`

`Case 1:22-cv-02164-KLM Document 1 Filed 08/23/22 USDC Colorado Page 3 of 9
`
`provided to individuals in this forum state and in this judicial District; and (iii) having a physical
`
`presence in this District.
`
`9.
`
`Venue is proper in this judicial district pursuant to 28 U.S.C. §1400(b) because
`
`Defendant is incorporated in this District under the Supreme Court’s opinion in TC Heartland v.
`
`Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017).
`
`FACTUAL ALLEGATIONS
`
`10.
`
`On May 29, 2018, the United States Patent and Trademark Office (“USPTO”) duly
`
`and legally issued the ‘435 Patent, entitled “AUTONOMOUS, NON-INTERACTIVE,
`
`CONTEXT-BASED SERVICES FOR CELLULAR PHONE” after a full and fair examination.
`
`The ‘435 Patent is attached hereto as Exhibit A and incorporated herein as if fully rewritten.
`
`11.
`
`Plaintiff is presently the owner of the ‘435 Patent, having received all right, title
`
`and interest in and to the ‘435 Patent from the previous assignee of record. Plaintiff possesses all
`
`rights of recovery under the ‘435 Patent, including the exclusive right to recover for past
`
`infringement.
`
`12.
`
`To the extent required, Plaintiff has complied with all marking requirements under
`
`35 U.S.C. § 287.
`
`13.
`
`The invention claimed in the ‘435 Patent comprises autonomous, non-interactive
`
`context-based services (beyond traditional telephony and personal information management
`
`applications) on a cellular phone.
`
`14.
`
`15.
`
`Claim 1 of the ‘435 Patent recites a method to perform an action.
`
`Claim 1 of the ‘435 Patent states:
`
`“1. A method to perform an action, comprising:
`receiving, by a first device located at a first geographical
`location, one or more messages that:
` indicate geographical location information of a second
`
`
`
`3
`
`

`

`Case 1:22-cv-02164-KLM Document 1 Filed 08/23/22 USDC Colorado Page 4 of 9
`
`device located at a second geographical location, and
` include a request for a first action to be performed by
` the first device, wherein the one or more messages
`are received from the second device, and wherein the
`geographical location information of the second
`device acts as authentication to allow the first action
`to be performed by the first device; and
`autonomously performing, based at least on the received
`one or more messages, by the first device, the authen-
`ticated first action.” See Ex. A.
`
`
`
`
`
`16.
`
`Further, these specific elements also accomplish these desired results to overcome
`
`
`
`
`
`
`the then existing problems in the relevant field of network communication systems. Ancora
`
`Technologies, Inc. v. HTC America, Inc., 908 F.3d 1343, 1348 (Fed. Cir. 2018) (holding that
`
`improving computer security can be a non-abstract computer-functionality improvement if done
`
`by a specific technique that departs from earlier approaches to solve a specific computer problem).
`
`See also Data Engine Techs. LLC v. Google LLC, 906 F.3d 999 (Fed. Cir. 2018); Core Wireless
`
`Licensing v. LG Elecs., Inc., 880 F.3d 1356 (Fed. Cir. 2018); Finjan, Inc. v. Blue Coat Sys., Inc.,
`
`879 F.3d 1299 (Fed. Cir. 2018); Uniloc USA, Inc. v. LG Electronics USA, Inc., 957 F.3d 1303
`
`(Fed. Cir. April 30, 2020).
`
`17.
`
`Claims need not articulate the advantages of the claimed combinations to be
`
`eligible. Uniloc USA, Inc. v. LG Elecs. USA, Inc., 957 F.3d 1303, 1309 (Fed. Cir. 2020).
`
`18.
`
`Based on the allegations, it must be accepted as true at this stage, that Claim 1 of
`
`the ‘435 Patent recites a specific, plausibly inventive way of a method to perform an action that is
`
`related to controlling a third device based on the received one or more messages. Cellspin Soft,
`
`Inc. v. Fitbit, Inc., 927 F.3d 1306, 1319 (Fed. Cir. 2019), cert. denied sub nom. Garmin USA, Inc.
`
`v. Cellspin Soft, Inc., 140 S. Ct. 907, 205 L. Ed. 2d 459 (2020).
`
`
`
`4
`
`

`

`Case 1:22-cv-02164-KLM Document 1 Filed 08/23/22 USDC Colorado Page 5 of 9
`
`19.
`
`Defendant commercializes, inter alia, methods that perform all the steps recited in
`
`at least one claim of the ‘435 Patent. More particularly, Defendant commercializes, inter alia,
`
`methods that perform all the steps recited in Claim 1 of the ‘435 Patent. Specifically, Defendant
`
`makes, uses, sells, offers for sale, or imports a method that encompasses that which is covered by
`
`Claim 1 of the ‘435 Patent.
`
`DEFENDANT’S PRODUCT(S)
`
`20.
`
`Defendant offers solutions, such as “ProCare’s Child Care App and Management
`
`Platform” (the “Accused System”),1 which practices a method to perform an action (e.g., enabling
`
`user for clock-in or clock-out). A non-limiting and exemplary claim chart comparing the Accused
`
`System of Claim 1 of the ‘435 Patent is attached hereto as Exhibit B and is incorporated herein as
`
`if fully rewritten.
`
`21.
`
`As recited in Claim 1, at least in internal testing and usage, the Accused System
`
`practices receiving, by a first device (e.g., ProCare Childcare App server) located at a first
`
`geographical location (e.g., geographical location of a ProCare Childcare App data centre), one or
`
`more messages (e.g., geolocation information messages from a mobile device enabled with
`
`ProCare Childcare App, messages with location updates from a mobile device enabled with
`
`ProCare Childcare App). See Ex. B.
`
`22.
`
`As recited in one step of Claim 1, at least in internal testing and usage, the Accused
`
`System receiving, at a first device (e.g., ProCare Childcare App server), a message which indicates
`
`geographical location information (e.g., location of mobile device enabled with ProCare Childcare
`
`App) of a second device located at a second geographical location (e.g., mobile device enabled
`
`with ProCare Childcare App). For example, a device enabled with the ProCare Childcare App
`
`
`1 The Accused Product is just one of the products provided by Defendant, and Plaintiff’s investigation is on-going to
`additional products to be included as an Accused Product that may be added at a later date.
`5
`
`
`
`

`

`Case 1:22-cv-02164-KLM Document 1 Filed 08/23/22 USDC Colorado Page 6 of 9
`
`sends location information to an ProCare Childcare App server which uses the location of user to
`
`allow the user for check-in or check-out. See Ex. B
`
`23.
`
`As recited in another step of Claim 1, at least in internal testing and usage, the
`
`Accused System practices receiving, at a first device (e.g., ProCare Childcare App server), a
`
`message which includes a request (e.g., Check-in or Check-out request) for a first action (e.g.,
`
`enabling user for check-in or check-out) to be performed by the first device (e.g., ProCare
`
`Childcare App server), wherein the one or more messages (e.g., messages with location updates
`
`from a mobile device enabled with ProCare Childcare App) are received from the second device
`
`(e.g., the mobile device enabled with ProCare Childcare App) and wherein the geographical
`
`location information (e.g., location of mobile device enabled with ProCare Childcare App) of a
`
`second device (e.g., mobile device enabled with ProCare Childcare App) acts as authentication to
`
`allow the first action (e.g., location information will authenticate user for check-in, check-out, etc.)
`
`to be performed by the first device (e.g., ProCare Childcare App server). The location information
`
`of the second device (e.g., location of mobile enabled with ProCare Childcare App) acts as
`
`authentication to allow the first action (e.g., enabling user for check-in or check-out, etc.) because
`
`it permits the first device (e.g., ProCare Childcare App server) to perform the first action (e.g.,
`
`enabling user for check-in or check-out, etc.). See Ex. B.
`
`24.
`
`As recited in another step of Claim 1, at least in internal testing and usage, the
`
`Accused System practices autonomously performing, based at least on the received one or more
`
`messages (e.g., location information update related message), by the first device (e.g., ProCare
`
`Childcare App server), the authenticated first action (e.g., enabling user for check-in, check-out,
`
`etc.). For example, when a user with ProCare Childcare App installed enters or stays within certain
`
`area/geofence set by ProCare Childcare server’s administrator, the user will be able to check-in or
`
`
`
`6
`
`

`

`Case 1:22-cv-02164-KLM Document 1 Filed 08/23/22 USDC Colorado Page 7 of 9
`
`check-out within the geofence whereas outside the geofence, checking in/out operations are
`
`prohibited. See Ex. B.
`
`25.
`
`The elements described in the preceding paragraphs are covered by at least Claim
`
`1 of the ‘435 Patent. Thus, Defendant’s use of the Accused System is enabled by the method
`
`described in the ‘435 Patent.
`
`INFRINGEMENT OF THE PATENT-IN-SUIT
`
`26.
`
`Plaintiff realleges and incorporates by reference all of the allegations set forth in
`
`the preceding paragraphs.
`
`27.
`
` In violation of 35 U.S.C. § 271, Defendant is now, and has been directly infringing
`
`the ‘435 Patent.
`
`28.
`
`Defendant has had knowledge of infringement of the ‘435 Patent at least as of the
`
`service of the present Complaint.
`
`29.
`
` Defendant has directly infringed and continues to directly infringe at least one
`
`claim of the ‘435 Patent by using, at least through internal testing or otherwise, the Accused System
`
`without authority in the United States, and will continue to do so unless enjoined by this Court.
`
`As a direct and proximate result of Defendant’s direct infringement of the ‘435 Patent, Plaintiff
`
`has been and continues to be damaged.
`
`30.
`
`Defendant has induced others to infringe the ‘435 Patent by encouraging
`
`infringement, knowing that the acts Defendant induced constituted patent infringement, and its
`
`encouraging acts actually resulted in direct patent infringement.
`
`31.
`
`By engaging in the conduct described herein, Defendant has injured Plaintiff and is
`
`thus liable for infringement of the ‘435 Patent, pursuant to 35 U.S.C. § 271.
`
`
`
`7
`
`

`

`Case 1:22-cv-02164-KLM Document 1 Filed 08/23/22 USDC Colorado Page 8 of 9
`
`32.
`
`Defendant has committed these acts of infringement without license or
`
`authorization.
`
`33.
`
`As a result of Defendant’s infringement of the ‘435 Patent, Plaintiff has suffered
`
`monetary damages and is entitled to a monetary judgment in an amount adequate to compensate
`
`for Defendant’s past infringement, together with interests and costs.
`
`34.
`
`Plaintiff will continue to suffer damages in the future unless Defendant’s infringing
`
`activities are enjoined by this Court. As such, Plaintiff is entitled to compensation for any
`
`continuing and/or future infringement up until the date that Defendant is finally and permanently
`
`enjoined from further infringement.
`
`35.
`
`Plaintiff reserves the right to modify its infringement theories as discovery
`
`progresses in this case; it shall not be estopped for infringement contention or claim construction
`
`purposes by the claim charts that it provides with this Complaint. The claim chart depicted in
`
`Exhibit B is intended to satisfy the notice requirements of Rule 8(a)(2) of the Federal Rule of Civil
`
`Procedure and does not represent Plaintiff’s preliminary or final infringement contentions or
`
`preliminary or final claim construction positions.
`
`DEMAND FOR JURY TRIAL
`
`36.
`
`Plaintiff demands a trial by jury of any and all causes of action.
`
`
`
`WHEREFORE, Plaintiff prays for the following relief:
`
`PRAYER FOR RELIEF
`
`a. That Defendant be adjudged to have directly infringed the ‘435 Patent either literally
`
`or under the doctrine of equivalents;
`
`b. An accounting of all infringing sales and damages including, but not limited to, those
`
`sales and damages not presented at trial;
`
`
`
`8
`
`

`

`Case 1:22-cv-02164-KLM Document 1 Filed 08/23/22 USDC Colorado Page 9 of 9
`
`c. That Defendant, its officers, directors, agents, servants, employees, attorneys, affiliates,
`
`divisions, branches, parents, and those persons in active concert or participation with any of them,
`
`be permanently restrained and enjoined from directly infringing the ‘435 Patent;
`
`d. An award of damages pursuant to 35 U.S.C. §284 sufficient to compensate Plaintiff for
`
`the Defendant’s past infringement and any continuing or future infringement up until the date that
`
`Defendant is finally and permanently enjoined from further infringement, including compensatory
`
`damages;
`
`e. An assessment of pre-judgment and post-judgment interest and costs against
`
`Defendant, together with an award of such interest and costs, in accordance with 35 U.S.C. §284;
`
`f. That Defendant be directed to pay enhanced damages, including Plaintiff’s attorneys’
`
`fees incurred in connection with this lawsuit pursuant to 35 U.S.C. §285; and
`
`g. That Plaintiff be granted such other and further relief as this Court may deem just and
`
`proper.
`
`
`
`Dated: August 23, 2022
`
`Respectfully submitted,
`
`s/ Andrew S. Curfman
`Andrew S. Curfman
`Sand, Sebolt & Wernow Co., LPA
`Aegis Tower – Suite 1100
`4940 Munson Street NW
`Canton, Ohio 44718
`Telephone: (330) 244-1174
`Email: andrew.curfman@sswip.com
`
`
`
`
`
`9
`
`