Case 1:20-cv-01406-UNA Document 1 Filed 10/20/20 Page 1 of 17 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. ____________
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`JURY TRIAL DEMANDED
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`))))))))))
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`CORTUS S.A.S.,
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`Plaintiff,
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`v.
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`MICROCHIP TECHNOLOGY
`INCORPORATED AND DOES 1-10,
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`Defendants.
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`COMPLAINT
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`Plaintiff Cortus S.A.S. (the “Plaintiff” or “Cortus”), by and through its attorneys, for its
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`Complaint for copyright infringement, unfair competition, conversion, unjust enrichment and
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`disgorgement, and replevin against Microchip Technology Incorporated (“Microchip”) and
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`DOES 1-10 (referred to herein collectively as “Defendants”), hereby alleges as follows:
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`THE PARTIES
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`1.
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`Cortus is a company incorporated in France with corporate headquarters at 491
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`Rue Charles Nungesser, Batiment Télécom II, 34130 Mauguio, France.
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`2.
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`Cortus is a leading semiconductor, embedded systems and Internet of Things
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`(“IoT”) solutions company, and provides a full range of integrated circuit (“IC”) design services.
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`Its portfolio of Intellectual Property includes digital, analog and RF IC designs, with
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`accompanying prototyping and verification solutions, for applications including SIM cards, bank
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`cards, e(cid:173)Passports, automotive sensors, image processors, industrial controllers, machine-to-
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`machine controllers, secure microcontrollers, smart meters, wireless communication controllers,
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`touch screen controllers and IoT devices.
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`

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`3.
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`On information and belief, Microchip is a corporation organized under the laws of
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`the State of Delaware with a place of business at 2355 W. Chandler Blvd., Chandler, AZ 85224-
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`6199.
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`4.
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`Cortus is ignorant of the true names and capacities of the remaining defendants,
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`sued as Does 1 through 10, and therefore sues defendants by such fictitious names. Cortus will
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`amend this Complaint to allege true names and capacities when ascertained. Cortus is informed
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`and believes, and on that basis alleges, that each of the fictitiously named defendants, who may
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`include subsidiaries and/or affiliates of Microchip as well as manufacturers, importers, exporters,
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`and/or retailers of the Accused Products, as described below, are in some manner responsible for
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`the harm Cortus has incurred and will incur, as described herein, if injunctive relief is not
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`allowed and damages are not awarded.
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`5.
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`Defendants sell, offer to sell, and/or use products and services throughout the
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`United States, including in this judicial district, and introduce unlicensed and infringing products
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`and services into the stream of commerce knowing that they will be sold and/or used in this
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`judicial district and elsewhere in the United States.
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`JURISDICTION AND VENUE
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`6.
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`Plaintiff’s copyright infringement claims arise under the Copyright Laws of the
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`United States, 17 U.S.C. §§ 101, et seq. This Court has exclusive subject matter jurisdiction over
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`the copyright claims under 28 U.S.C. §§ 1331, and 1338 and 17 U.S.C. § 501(a).
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`7.
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`On information and belief, the amount in controversy exceeds the sum or value of
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`$75,000, exclusive of interest and costs. This Court therefore additionally has subject matter
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`jurisdiction over Plaintiff’s copyright, unfair competition, conversion, unjust enrichment and
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`disgorgement, and replevin claims under 28 U.S.C. §§ 1332 and 1367.
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`2
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`8.
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`This Court has personal jurisdiction over Defendants because Microchip is a
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`Delaware corporation and because, on information and belief, Defendants have regularly and
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`systematically transacted business in this judicial district, directly or through intermediaries,
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`and/or committed acts of infringement in this judicial district. Defendants have also placed
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`unlicensed and infringing products into the stream of commerce by shipping those products into
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`this district or knowing that the products would be shipped into this district.
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`9.
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`10.
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`Microchip is registered to do business in the State of Delaware.
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`The Corporation Trust Company, Corporation Trust Center 1209 Orange St,
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`Wilmington, DE 19801, serves as Microchip’s Registered Agent in the State of Delaware.
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`11.
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`Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391 and
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`1400(a).
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`A.
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`PLAINTIFF’S COPYRIGHTED WORK
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`BACKGROUND
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`12.
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`Cortus was founded in 2005, and is still run today, by Michael Chapman, who
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`now serves as CEO, and Duc Nguyen-Huu, the company’s General Manager.
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`13. Michael Chapman has 36 years’ experience in the design of integrated circuit
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`(“IC”) embedded processors and has repeatedly delivered ground-breaking technological
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`innovations over this period. He is most renowned for his design of the Bosch CAN IC chips that
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`are now widely used in many cars and airplanes. He also was at the origin of System C, a
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`programming language particularly suited to digital, analog, and mixed-signal system modeling
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`and synthesis, software development, and functional verification.
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`14.
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`Cortus has an extensive IP portfolio in areas such as digital, analog, and RF
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`circuit design and software integration, including in the areas of wireless networking, security,
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`transportation, operating systems, and safety, among others.
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`3
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`15.
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`Cortus licenses its IP—including its proprietary and copyrighted microprocessor
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`designs and its prototyping and verification software—to certain application-specific integrated
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`circuit (“ASIC”) developers who, in turn, embed Cortus’s proprietary and copyrighted
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`microprocessor designs into ASICs used for, e.g., SIM cards, bank cards, ePassports, automotive
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`sensors, image processors, industrial controllers, machine-to-machine controllers, secure
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`microcontrollers, sensors, smart meters, wireless communication controllers, touch screen
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`controllers and Internet of Things (“IoT”) devices.
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`16. More than seven (7) billion devices have been produced using licensed Cortus
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`microprocessors and IP, including devices from Idemia, Samsung, Intel, Broadcom, Blackberry
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`and others.
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`17.
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`At issue in this suit is Cortus’s APS3 microprocessor and its APS3S variant
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`(collectively referred to herein as the “APS3 microprocessor” or “APS3 core”).
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`18.
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`The Cortus APS3 microprocessor design is expressed using code written in the
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`Verilog hardware description language.
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`19.
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`The Cortus APS3 microprocessor, as embodied by the APS3 microprocessor
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`Verilog code, features a small silicon footprint, very low power consumption, high code density
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`and high performance. Upon its release, the APS3 microprocessor was recognized as the
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`smallest available native 32-bit microprocessor designs available in the market, and, since its
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`release, the APS3 microprocessor has been in high volume production in a wide range of
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`applications ranging from SIM cards to Bluetooth LE. The APS3 microprocessor has also been
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`used in a multi-core configuration (multiple copies of the APS microprocessor in one ASIC) to
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`provide further-enhanced functionality for particularly demanding applications.
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`4
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`20.
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`The APS3 core includes the microprocessor design Verilog code and code for
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`peripherals typical of embedded systems, bus bridges to ensure easy interfacing to other IP and
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`system support and functions such as cache and memory management units. The APS3 core also
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`includes code for a full development environment for prototyping and verification.
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`21.
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`Cortus owns all rights, title, and interest in its APS3 microprocessor, including all
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`rights, title, and interest in the copyrighted APS3 core code, which code has included a copyright
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`notice since its first publication declaring that the code is under copyright and further stating that
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`the code may be used only as authorized under a licensing agreement with Cortus.
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`22.
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`Cortus’s APS3 core code is confidential and is distributed only under licensing
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`terms which prohibit public disclosure of the code.
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`23. Messr. Chapman is an author of the APS3 microprocessor code and is a citizen of
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`the United Kingdom of Great Britain and Northern Ireland and has been domiciled in France
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`continuously since September 1998.
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`24.
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`No authors of the APS3 microprocessor code are nationals, domiciliaries, or
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`habitual residents of the United States.
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`25.
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`The Cortus APS3 microprocessor code was initially released in 2006 under a
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`license agreement between Cortus and Coronis Systems, a French Corporation, for use by
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`Coronis Systems in France and the People’s Republic of China.
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`B.
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`DEFENDANTS’ UNLAWFUL CONDUCT
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`26.
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`On May 10, 2011, Cortus entered into a “Software License Agreement” (“SLA”)
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`with Newport Media Inc. (“NMI”), a fabless semiconductor company that had been developing
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`and selling “system-on-a-chip” (“SoC”) ASIC products for TV broadcast applications and was in
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`the process of developing new ASIC products for the wireless connectivity market.
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`5
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`27.
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`Pursuant to two purchase orders submitted under the SLA, and subject to certain
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`terms and conditions therein, Cortus granted NMI, in its form as of execution of the SLA, and for
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`a limited period of time, the right to use the Cortus APS3 microprocessor code to develop two
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`ASIC products that incorporate the Cortus APS3 microprocessor design, and to manufacture, and
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`sell these two products.
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`28.
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`The fees associated with these licenses were significantly discounted (and
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`royalties were waived) to accommodate NMI’s small size, to facilitate NMI’s entry into a new
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`market, i.e., wireless connectivity, and with the expectation that NMI’s success would generate
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`further licensing opportunities for Cortus, including additional royalty-bearing licenses for
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`subsequent NMI ASIC products.
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`29.
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`To ensure that NMI’s discounted and royalty-free licenses could not be exploited
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`by a larger and more established acquirer, the licenses granted under the SLA were subject to the
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`following provision:
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`14.2 Non-assignment - Without Cortus’s prior written
`consent, neither this Agreement nor any interest therein or
`part thereof shall be transferable or assignable by the
`Licensee, by operation of law, by fusion, by merger, by
`acquisition or otherwise. However, in the case of change of
`control, this does not prevent an NMI acquirer the
`continued design in and production of devices containing
`Cortus IP for which the license fee has already been fully
`paid. Cortus is under no obligation to offer similar license
`terms to the party acquiring or fusioning with NMI.
`
`30.
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`Use of licensed Cortus APS3 microprocessor code was also restricted to NMI
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`design groups operating at two specific addresses: 1 Spectrum Point Drive, Suite 225, Lake
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`Forest, CA 92630, USA and 11 Markaz El-maalomat St., block 1157, Masaken Sheraton
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`Heliopolis, Cairo 11361, Egypt.
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`6
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`31.
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`On information and belief, NMI incorporated the Cortus APS3 microprocessor
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`into at least two SoC ASIC products (each constituting a “use” under the license agreement), one
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`of which being released under the product name NMC1500 and another marketed under the
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`product name NMC3000.
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`32.
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`On information and belief, the NMC1500 (a Wi-Fi® SoC) and NMC3000 (a
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`multi-mode Wi-Fi®, Bluetooth, FM SoC) were designed for use in mass market IoT devices,
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`including smartphones.
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`33.
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`On information and belief, Atmel Corp. (“Atmel”) acquired a 100% equity
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`interest in privately-held NMI for $143 million and other consideration on July 31, 2014.
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`34.
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`Atmel, stated, in its 2014 Form 10-K, that it was “one of the world’s leading
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`designers, developers and suppliers of microcontrollers” with over 5000 employees. On
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`information and belief, NMI had 114 employees prior to its acquisition.
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`35.
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`On information and belief, all NMI products were withdrawn from the market
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`shortly after its acquisition by Atmel in July 2014.
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`36.
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`On information and belief, in late 2014 and early 2015, Atmel introduced new
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`products containing one or more copies of the Cortus APS3 microprocessor, including in
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`Atmel’s packaged chip family of products and Atmel’s module family of products, under the
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`product family names ATWILC1000/ATWILC1000A, ATWINC1500/ATWINC1500A,
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`ATWILC3000, and ATWINC3400.
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`37.
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`On information and belief, Atmel later introduced new products containing one or
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`more copies of the Cortus APS3 microprocessor, including packaged chip and module products,
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`under the product family names ATWILC1000B and ATWINC1500B.
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`7
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`38.
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`The ASIC designs in these products were new and distinct from those of the
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`ATWILC1000A and ATWINC1500A with different functionality, and included, inter alia,
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`increased memory for storing APS3 microprocessor instructions, a second universal
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`asynchronous receiver-transmitter (“UART”) circuit for data transmission, power control and
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`consumption improvements, added hardware accelerators, and added debugging features.
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`39.
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`On information and belief, on April 4, 2016, Microchip, a provider of
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`microcontroller, mixed-signal, analog and flash-IP solutions headquartered in Chandler, Arizona,
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`acquired Atmel Corp. for approximately $3.47 billion. As a result of the acquisition, and on
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`further information and belief, Atmel became a wholly owned subsidiary of Microchip.
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`40.
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`According to Microchip’s Form 10-K filing for the fiscal year ending March 31,
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`2016, Microchip had 9,766 employees as of March 31, 2016 and reported net sales for that fiscal
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`year of $ 2.17 billion.
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`41.
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`On information and belief, since acquiring Atmel, Microchip and/or Does 1-10
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`continued to manufacture, distribute and sell products in the six Atmel product families
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`identified above, although, on further information and belief, the ATWILC1000A and
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`ATWINC1500A product families were ultimately discontinued in late 2016.
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`42. Microchip and/or Does 1-10 continue to manufacture, distribute and sell packaged
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`chip and module products, under the product family names ATWILC1000B, ATWINC1500B,
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`ATWILC3000 and ATWINC3400, and have also added an ATWINC1510B product family.
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`43.
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`Atmel and its successor Microchip have known since well-prior to this suit that
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`their incorporation of the Cortus APS3 microprocessor into their products was unlicensed.
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`8
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`44.
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`For example, in a letter to Microchip dated October 29, 2019, Cortus explained
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`that no rights under the non-transferable and non-assignable SLA passed to Microchip, and that
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`Microchip’s products were not licensed under Section 14.2 of the SLA.
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`45.
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`Through the same October 29, 2019 letter, Cortus further explained that
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`Microchip’s products were distinct from any products licensed and produced by NMI, and that
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`Microchip could not claim any right to sell these products under the SLA.
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`46.
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`For its part, Microchip responded on November 14, 2019 asserting that it was not
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`liable to Cortus because of a release provision in a License, Settlement, and Release Agreement
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`between Microsemi Corp. - Analog Mixed Signal Group, Microchip, and Cortus S.A.S. effective
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`as of July 8, 2019 (“Microsemi Agreement”). Cortus disagrees with Microchip that the cited
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`provision in the Microchip Agreement is relevant to the current dispute regarding Cortus’s APS3
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`microprocessor, or that the parties ever intended it to cover Defendants’ unlawful actions, as set
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`forth in this Complaint, either before or after July 8, 2019.
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`COUNT I
`(Infringement of the Copyright in Cortus’s APS3 microprocessor code under 17 U.S.C.
`§§ 106, 501, et seq., and 602)
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`Cortus repeats and re-alleges the paragraphs above as if fully set forth herein.
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`Plaintiff Cortus is the owner of the copyright in the APS3 microprocessor Verilog
`
`47.
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`48.
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`code.
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`49.
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`On information and belief, Defendants have infringed Cortus’s exclusive rights in
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`the APS3 microprocessor Verilog code including, for example, the rights to reproduce and
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`distribute copies of, and to prepare derivative works of, the APS3 microprocessor Verilog code
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`by directly, or via unauthorized intermediary derivative works, fixing said code and/or derivative
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`work in certain of its integrated circuit products, whether as a packaged chip, a module, an
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`evaluation or starter kit, or in any other form, containing any of the following chips:
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`9
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`ATWILC1000/ATWILC1000B, ATWINC1500/ATWINC1500B,
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`ATWINC1510/ATWINC1510B, ATWILC3000, and ATWINC3400, collectively, the “Accused
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`Products.”
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`50.
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`On information and belief, Defendants have further infringed Cortus’s exclusive
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`rights in the APS3 microprocessor Verilog code by importing into and/or exporting from the
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`United States the Accused Products.
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`51. Microchip, through its own product documentation and its correspondence with
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`Cortus, acknowledges that the Accused Products contain copies of Cortus’s copyrighted APS3
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`microprocessor design.
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`52.
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`Excerpts from such exemplary product documentation state as follows:
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`http://ww1.microchip.com/downloads/en/DeviceDoc/ATWILC1000B-MUT-IEEE-802.11-bgn-
`Link-Controller-SoC-Data-Sheet-DS70005386A.pdf
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`10
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`

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`http://ww1.microchip.com/downloads/en/DeviceDoc/ATWINC15x0B-MU-IEEE-802.11-b-g-n-
`Network-Controller-DS70005374B.pdf
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`http://ww1.microchip.com/downloads/en/DeviceDoc/70005327A.pdf
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`11
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`http://ww1.microchip.com/downloads/en/DeviceDoc/IEEE-802.11-bgn-Network-Controller-
`with-Integrated-Bluetooth-Low-Energy-Module-Data-Sheet-DS70005350B.pdf.
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`53.
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`The acts of Defendants constitute copyright infringement under 17 U.S.C. §§ 106,
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`501, et seq., and 602.
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`54.
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`Upon further information and belief, and as set forth above, Defendants’
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`infringing acts have been undertaken and continue to be undertaken with knowledge of Cortus’s
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`copyrights and without any good faith basis in law or fact that its actions were legal, thus
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`Defendants’ infringing acts were committed willfully and with reckless disregard and with
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`indifference to Cortus’s known rights.
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`55.
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`On information and belief, Defendants will continue to infringe Cortus’s
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`exclusive rights with respect to the APS3 microprocessor Verilog code unless permanently
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`enjoined by this Court.
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`12
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`56.
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`Cortus has been and continues to be damaged by Defendants’ acts of willful
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`infringement, and is entitled to a permanent injunction and an award of its actual damages and
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`Microchip’s profits, direct and indirect, relating to the sale of the Accused Products, under
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`17 U.S.C. §§ 502, 504(a)(1), and 504(b).
`
`COUNT II
`(Unfair Competition)
`
`57.
`
`58.
`
`Cortus repeats and re-alleges the paragraphs above as if fully set forth herein.
`
`On information and belief, Microchip, alone or through its Atmel subsidiary,
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`obtained and used Cortus’s APS3 microprocessor code to design, manufacture, and maintain, the
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`Accused Products without Cortus’s permission, knowing such possession and use was
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`unlicensed, and without providing Cortus any compensation for the same. This has harmed
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`Cortus, which has lost licensing revenue, both directly and indirectly. Microchip’s misuse and
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`unfair competition has also harmed Cortus’s reputation and market credibility.
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`59. Microchip has asserted that it was released from liability for certain claims by
`
`way of the Microsemi Agreement. Even if this is true as of the effective date of that agreement
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`(which it is not), Microchip has, on information and belief, retained, used, and profited from,
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`Cortus’s APS3 microprocessor code even after the date of the purported release in the Microsemi
`
`Agreement. Microchip has no license to use this code or other Cortus intellectual property and
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`has never compensated Cortus for it.
`
`COUNT III
`(Conversion)
`
`60.
`
`61.
`
`Cortus repeats and re-alleges the paragraphs above as if fully set forth herein.
`
`On information and belief, Microchip, alone or through its Atmel subsidiary,
`
`obtained, and continues to take dominion over, control, possess and use Cortus’s property,
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`13
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`including the APS3 microprocessor code originally and exclusively licensed to NMI, knowing
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`such possession and use was unlicensed and without Cortus’s permission, and without providing
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`Cortus any compensation for the same.
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`62.
`
`These acts of conversion of Cortus’s property have harmed Cortus, which has lost
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`licensing revenue, both directly and indirectly. Microchip’s conversion has also harmed Cortus’s
`
`reputation and market credibility.
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`63. Microchip has asserted that it was released from liability for certain claims by
`
`way of the Microsemi Agreement. Even if this is true as of the effective date of that agreement
`
`(which it is not), Microchip, on information and belief, continues to take dominion over, control,
`
`possess and use Cortus’s APS3 microprocessor code licensed exclusively to NMI, without
`
`Cortus’s permission even after the date of the purported release in the Microsemi Agreement.
`
`COUNT IV
`(Unjust Enrichment and Disgorgement)
`
`64.
`
`Cortus repeats and re-alleges the paragraphs above as if fully set forth herein.
`
`65. Microchip, alone or through its Atmel subsidiary, obtained and used Cortus’s
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`APS3 microprocessor code originally and exclusively licensed to NMI to design, manufacture,
`
`and or maintain, the Accused Products, and continues to take dominion over, control, possess
`
`said code, knowing such possession and use is unlicensed and without permission, and without
`
`providing Cortus any compensation for the same. Microchip’s conversion and unfair
`
`competition have harmed Cortus, which has lost licensing revenue, both directly and indirectly.
`
`Microchip’s conversion and unfair competition have also harmed Cortus’s reputation and market
`
`credibility.
`
`66.
`
`These acts of unfair competition and conversion of Cortus’s property have
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`resulted in Defendants’ unjust enrichment.
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`14
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`67. Microchip has asserted that it was released from liability for certain claims by
`
`way of the Microsemi Agreement. Even if this is true as of the effective date of that agreement
`
`(which it is not), Microchip has, on information and belief, retained, used, and profited from,
`
`Cortus’s APS3 microprocessor code licensed exclusively to NMI, without Cortus’s permission
`
`even after the date of the purported release in the Microsemi Agreement. Microchip has no
`
`license to use this code or other Cortus intellectual property and has never compensated Cortus
`
`for it.
`
`COUNT V
`(Replevin)
`
`68.
`
`69.
`
`Cortus repeats and re-alleges the paragraphs above as if fully set forth herein.
`
`On information and belief, Microchip, alone or through its Atmel subsidiary,
`
`obtained, and continues to take dominion over, control, possess and use Cortus’s property,
`
`including the APS3 microprocessor code originally and exclusively licensed to NMI, without
`
`Cortus’s permission and without providing Cortus any compensation for the same.
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`JURY TRIAL DEMAND
`
`70.
`
`Pursuant to Federal Rule of Civil Procedure 38(b), Cortus hereby demands a trial
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`by jury of all issues so triable.
`
`PRAYER FOR RELIEF
`
`71.
`
`Cortus respectfully seeks the following relief:
`
`(a) Entry of an injunction, pursuant to 17 U.S.C. § 502, permanently enjoining
`
`Defendants from further copyright infringement, including by reproducing
`
`and distributing copies of, including as fixed in the Accused Products, and by
`
`making any derivative works of, importing to, or exporting from the United
`
`15
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`States, Cortus’s copyrighted APS3 microprocessor Verilog code, including all
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`versions thereof;
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`(b) Awarding Cortus its actual damages and Defendants’ profits, direct and
`
`indirect, resulting from Defendants’ copyright infringement, including profits
`
`derived from Defendants’ sale of the Accused Products, and including pre-
`
`and post-judgment interest;
`
`(c) In the alternative, and if Cortus so elects, awarding Cortus statutory damages
`
`pursuant to 17 U.S.C. § 504, et seq., including increased damages on account
`
`of Defendants’ willful copyright infringement;
`
`(d) Awarding Cortus its damages resulting from Microchip’s unfair competition,
`
`including pre- and post-judgment interest;
`
`(e) Awarding Cortus its damages resulting from Microchip’s conversion,
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`including pre- and post-judgment interest;
`
`(f) Awarding Cortus disgorgement of Microchip’s profits as a remedy for
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`Defendants’ unjust enrichment, including pre- and post-judgment interest;
`
`(g) Ordering Microchip to return to Cortus all copies of Cortus’s APS3
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`microprocessor code as well as additional software originally and exclusively
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`licensed to NMI.
`
`(h) Awarding Cortus its full costs, expenses, and reasonable attorney fees under
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`17 U.S.C. § 505 and all other applicable statutes, rules, and common law;
`
`(i) Awarding Cortus any other relief that the Court deems just and proper under
`
`the circumstances.
`
`16
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`

`

`Case 1:20-cv-01406-UNA Document 1 Filed 10/20/20 Page 17 of 17 PageID #: 17
`
`Respectfully submitted,
`POTTER ANDERSON & CORROON LLP
`
`By: /s/ David E. Moore
`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`Stephanie E. O’Byrne (#4446)
`Tracey E. Timlin (#6469)
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
`sobyrne@potteranderson.com
`ttimlin@potteranderson.com
`
`Attorneys for Plaintiff Cortus S.A.S.
`
`OF COUNSEL:
`
`Matthew G. Berkowitz
`SHEARMAN & STERLING LLP
`1460 El Camino Real
`Menlo Park, CA 94025-4110
`Tel: 650-838-3600
`
`L. Kieran Kieckhefer
`SHEARMAN & STERLING LLP
`535 Mission Street, 25th Floor
`San Francisco, CA 94105-2997
`Tel: 415-616-2200
`
`Mark Hannemann
`David J. Cooperberg
`SHEARMAN & STERLING LLP
`599 Lexington Avenue
`New York, NY 10002
`Tel: 212-848-4000
`
`Dated: October 20, 2020
`6909201 / 50604
`
`17
`
`