Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 1 of 16 PageID #: 1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`
`
`SWIRLATE IP LLC,
`
`
`
`
`Plaintiff,
`
`v.
`
`
`
`AUDIOCODES, INC.,
`
`
`
`
`Defendant.
`
`
`
`
` C.A. NO. ______________
`
`JURY TRIAL DEMANDED
`
`
`
` PATENT CASE
`
`
`
`
`
`
`
`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff Swirlate IP LLC files this Original Complaint for Patent Infringement against
`
`AudioCodes Inc., and would respectfully show the Court as follows:
`
`
`
`I. THE PARTIES
`
`1.
`
`Plaintiff Swirlate IP LLC (“Swirlate” or “Plaintiff”) is a Texas limited liability
`
`company having an address at 6009 W Parker Rd, Ste 149 – 1090, Plano, TX 75093-8121.
`
`2.
`
`On information and belief, Defendant AudioCodes, Inc. (“Defendant”) is a
`
`corporation organized and existing under the laws of Delaware, with a registered agent at The
`
`Corporation Trust Company, Corporation Trust Center, 1209 Orange St., Wilmington, DE
`
`19801.
`
`II. JURISDICTION AND VENUE
`
`3.
`
`This action arises under the patent laws of the United States, Title 35 of the
`
`United States Code. This Court has subject matter jurisdiction of such action under 28 U.S.C. §§
`
`1331 and 1338(a).
`
`4.
`
`On information and belief, Defendant is subject to this Court’s specific and
`
`general personal jurisdiction, pursuant to due process and the Delaware Long-Arm Statute, due
`
`at least to its business in this forum, including at least a portion of the infringements alleged
`
`
`
`1
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`

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`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 2 of 16 PageID #: 2
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`herein. Furthermore, Defendant is subject to this Court’s specific and general personal
`
`jurisdiction because Defendant is a Delaware corporation.
`
`5.
`
`Without limitation, on information and belief, Defendant has derived revenues
`
`from its infringing acts occurring within Delaware. Further, on information and belief,
`
`Defendant is subject to the Court’s general jurisdiction, including from regularly doing or
`
`soliciting business, engaging in other persistent courses of conduct, and deriving substantial
`
`revenue from goods and services provided to persons or entities in Delaware. Further, on
`
`information and belief, Defendant is subject to the Court’s personal jurisdiction at least due to its
`
`sale of products and/or services within Delaware. Defendant has committed such purposeful acts
`
`and/or transactions in Delaware such that it reasonably should know and expect that it could be
`
`haled into this Court as a consequence of such activity.
`
`6.
`
`Venue is proper in this district under 28 U.S.C. § 1400(b). On information and
`
`belief, Defendant is incorporated in Delaware. Under the patent venue analysis, Defendant
`
`resides only in this District. On information and belief, from and within this District Defendant
`
`has committed at least a portion of the infringements at issue in this case.
`
`7.
`
` For these reasons, personal jurisdiction exists and venue is proper in this Court
`
`under 28 U.S.C. § 1400(b).
`
`III. COUNT I
`(PATENT INFRINGEMENT OF UNITED STATES PATENT NO. 7,154,961)
`
`8.
`
`9.
`
`Plaintiff incorporates the above paragraphs herein by reference.
`
`On December 26, 2006, United States Patent No. 7,154,961 (“the ‘961 Patent”)
`
`was duly and legally issued by the United States Patent and Trademark Office. The ‘961 Patent
`
`is titled “Constellation Rearrangement for ARQ Transmit Diversity Schemes.” A true and correct
`
`copy of the ‘961 Patent is attached hereto as Exhibit A and incorporated herein by reference.
`
`
`
`2
`
`

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`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 3 of 16 PageID #: 3
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`10.
`
`Swirlate is the assignee of all right, title and interest in the ‘961 patent, including
`
`all rights to enforce and prosecute actions for infringement and to collect damages for all
`
`relevant times against infringers of the ‘961 Patent. Accordingly, Swirlate possesses the
`
`exclusive right and standing to prosecute the present action for infringement of the ‘961 Patent
`
`by Defendant.
`
`11.
`
`The invention in the ‘961 Patent relates to the field of Automatic Repeat reQuest
`
`(“ARQ”) transmission techniques in wireless communication systems. (Ex. A at col. 1:6-8). In
`
`particular, it relates to a method for transmitting data using transmit diversity schemes in which
`
`data packets are transmitted using a first and second transmission based on a repeat request and
`
`the bit-to-symbol mapping is performed differently for different transmitted diversity branches.
`
`(Id. at col. 1:8-12). The inventors recognized a problem in prior art of the use of ARQ
`
`transmission techniques in wireless communication systems with unreliable and time-varying
`
`channel conditions and the invention results in an improved performance avoiding transmission
`
`errors. (Id. at col. 1:12-15).
`
`12.
`
`In telecommunications, in order to improve the reliability of data transmissions,
`
`the prior art had several transmit diversity techniques in which redundant versions of identical
`
`data are transmitted in at least two diversity branches by default without explicitly requesting
`
`further diversity branches. (Id. at col. 1:19-24). Such transmit diversity techniques included (i)
`
`site diversity (transmitted signal originates from different sites), (ii) antenna diversity
`
`(transmitted signal originates from different antennas), (iii) polarization diversity (transmitted
`
`signal is mapped onto different polarization), (iv) frequency diversity (transmitted signal is
`
`mapped on different carrier frequencies or frequency hopping sequences), (v) time diversity
`
`(transmitted signal is mapped on different interleaving sequences), and (vi) multicode diversity
`
`
`
`3
`
`

`

`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 4 of 16 PageID #: 4
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`(transmitted signal is mapped on different codes). (Id. at col. 1:24-42). The diversity branches
`
`would then be combined in order to improve the reliability of the received data. These diversity
`
`combining techniques included (a) selection combining (selecting the diversity branch with the
`
`highest Signal-to-Noise Ratio (“SNR”) for decoding and ignoring the remaining ones), (b) equal
`
`gain combining (combining received diversity branches with ignoring the differences in received
`
`SNR), and (c) maximum ratio combining (combining received diversity branches taking the
`
`received SNR of each diversity branch into account).
`
`13.
`
`The prior art also had techniques for error detection/correction with respect to the
`
`transmission of data. For example, the prior art would use ARQ schemes together with Forward
`
`Error Correction (FEC),1 which is called hybrid ARQ (“HARQ”). If an error is detected within a
`
`packet by the Cyclic Redundancy Check (“CRC”), the receiver requests that the transmitter send
`
`additional information (e.g., retransmission) to improve the probability to correctly decode the
`
`erroneous packet. (Id. at col. 1: 59-63).
`
`14.
`
`The ‘961 discussed a particular prior art reference that had the shortcomings of
`
`the prior art. WO-02/067491 A1 disclosed a method for HARQ transmission that averages the
`
`bit reliability over successively requested retransmissions by means of signal constellation
`
`rearrangement. (Id. at col. 1: 64-67). The reference showed that when more than 2 bits of data
`
`were mapped onto one modulation symbol, the bits have different reliability depending on the
`
`chosen mapping. (Id. at col. 2: 1-5). For most FEC schemes, this leads to a degraded decoder
`
`performance compared to an input of more equally distributed bit reliabilities. (Id. at col. 2:5-7).
`
`1
`
`
`FEC is a technique used for controlling errors in data transmission over unreliable or
`noisy communication channels. The general idea of FED is that a sender encodes the message in
`a redundant way, most often using an error correction code. The redundancy allows the receiver
`to detect a limited number of errors that may occur anywhere in the message, and to potentially
`correct these errors without re-transmission.
`
`
`
`4
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`

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`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 5 of 16 PageID #: 5
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`As a result, in conventional communications systems the modulation dependent variations in bit
`
`reliabilities are not considered and, therefore, usually the variations remain after combining the
`
`diversity branches at the receiver. (Id. at col. 2:8-11).
`
`15.
`
`The inventors therefore developed a method that improved performance with
`
`regard to transmission errors. (Id. at col. 2:15-18). The idea of the invention is to improve
`
`performance at the receiver by applying different signal constellation mappings to the available
`
`distinguishable transmit diversity branches and ARQ retransmissions. (Id. at col. 2:20-23). The
`
`invention is applicable to modulation formats in which more than 2 bits are mapped onto one
`
`modulation symbol, since this implies a variation in reliabilities for the bits mapped onto the
`
`signal constellation. (Id. at col. 2:23-29).
`
`16.
`
`Direct Infringement. Upon information and belief, Defendant has been directly
`
`infringing at least claim 1 of the ‘961 patent in Delaware, and elsewhere in the United States, by
`
`performing actions comprising at least performing the claimed ARQ re-transmission method by
`
`performing the steps of the claimed invention using the Mediant 500L MSBR (“Accused
`
`Instrumentality”) (e.g., https://www.audiocodes.com/solutions-products/products/multi-service-
`
`business-routers-msbrs/mediant-500l-msbr).
`
`17.
`
`The Accused Instrumentality uses an ARQ retransmission method in a wireless
`
`communication system in which data packets are transmitted from a transmitter to a receiver
`
`using a first transmission and at least a second transmission based on a repeat request. For
`
`example, at least in its internal testing and usage, the Accused Instrumentality uses an HARQ
`
`method in an LTE network in which data is transmitted from the Accused Instrumentality to an
`
`LTE base station using at least an HARQ transmission and an HARQ retransmission based on a
`
`repeat request, such as an HARQ retransmission request in the form of a negative
`
`
`
`5
`
`

`

`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 6 of 16 PageID #: 6
`
`acknowledgement
`
`(“NAK”).
`
`(E.g.,
`
`https://www.audiocodes.com/solutions-
`
`products/products/multi-service-business-routers-msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`18.
`
`Upon information and belief, the Accused Instrumentality performs the step of
`
`modulating data packets at the transmitter using a first modulation scheme to obtain first data
`
`symbols. For example, at least in its internal testing and usage, the Accused Instrumentality uses
`
`16QAM and/or 64QAM to obtain first data symbols for the purposes of an LTE transmission.
`
`(E.g., https://www.audiocodes.com/solutions-products/products/multi-service-business-routers-
`
`msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`19.
`
`Upon information and belief, the Accused Instrumentality performs the step of
`
`performing the first transmission by transmitting the first data symbols over a first diversity
`
`branch to the receiver. For example, at least in its internal testing and usage, the Accused
`
`Instrumentality when performing an HARQ transmission transmits the first data symbols over a
`
`first diversity branch using multi-antenna processing which maps from assigned resource blocks
`
`to the first available number of antenna ports. (E.g., https://www.audiocodes.com/solutions-
`
`products/products/multi-service-business-routers-msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`20.
`
`Upon information and belief, the Accused Instrumentality performs the step of
`
`modulating the data packets at the transmitter using a second modulation scheme to obtain
`
`
`
`6
`
`

`

`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 7 of 16 PageID #: 7
`
`second data symbols. For example, at least in its internal testing and usage, the Accused
`
`Instrumentality on a repeat request, i.e., receiving the retransmission request in the form of NAK,
`
`enables a second mapping of a higher order modulation scheme (i.e., an adaptive re-transmission
`
`having a different Modulation Coding Scheme (MCS) than the one used for HARQ transmission
`
`such
`
`as
`
`first
`
`higher
`
`order modulation
`
`scheme,
`
`e.g.,
`
`64QAM).
`
`
`
`(E.g.,
`
`https://www.audiocodes.com/solutions-products/products/multi-service-business-routers-
`
`msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`21.
`
`Upon information and belief, the Accused Instrumentality performs the step of
`
`performing the second transmission by transmitting the second data symbols over a second
`
`diversity branch to the receiver. For example, at least in its internal testing and usage, the
`
`Accused Instrumentality transmits second data symbols over a second or later diversity branch
`
`using multi-antenna processing which maps from assigned resource blocks to the later available
`
`number of antenna ports. (E.g., https://www.audiocodes.com/solutions-products/products/multi-
`
`service-business-routers-msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`22.
`
`Upon information and belief, the Accused Instrumentality performs the step of
`
`demodulating the received first and second data symbols at the receiver using the first and
`
`second modulation schemes respectively. For example, the Accused Instrumentality, at least in
`
`its internal testing and usage, uses a base station which practices demodulation of first data
`
`symbols (e.g., output of modulation block performing said first modulation scheme) and second
`
`
`
`7
`
`

`

`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 8 of 16 PageID #: 8
`
`data symbols (e.g., output of modulation block using a second modulation scheme) at the LTE
`
`base station using the first and second modulation scheme, i.e., Modulation Coding Scheme
`
`(MCS) which are distinct for transmission and Adaptive Re-transmission (i.e., an Adaptive Re-
`
`transmission having a different MCS than the one used for transmission, i.e., first higher order
`
`modulation scheme).
`
`(E.g., https://www.audiocodes.com/solutions-products/products/multi-
`
`service-business-routers-msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`23.
`
`Upon information and belief, the Accused Instrumentality performs the step of
`
`diversity combining the demodulated data received over the first and second diversity branches.
`
`For example, the Accused Instrumentality, at least in its internal testing and usage, uses a base
`
`station which performs a diversity combining, i.e., Hybrid ARQ soft-combining of data from
`
`multiple
`
`received
`
`antenna
`
`ports.
`
`
`
`(E.g.,
`
`https://www.audiocodes.com/solutions-
`
`products/products/multi-service-business-routers-msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`24.
`
`Upon information and belief, the Accused Instrumentality performs the step using
`
`modulation schemes that are 16 QAM and a number of log2 (M) modulation schemes. For
`
`example, the Accused Instrumentality, at least in its internal testing and usage, uses 16 QAM and
`
`64 QAM wherein the M-ary Quadrature Amplitude Modulation is basically a log2 (M)
`
`modulation schemes, i.e., 16QAM stands for log2 (16) modulation schemes and 64 QAM stands
`
`for
`
`log2
`
`(64) modulation
`
`schemes.
`
`
`
`(E.g., https://www.audiocodes.com/solutions-
`
`products/products/multi-service-business-routers-msbrs/mediant-500l-msbr;
`
`
`
`8
`
`

`

`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 9 of 16 PageID #: 9
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`IV. COUNT II
`(PATENT INFRINGEMENT OF UNITED STATES PATENT NO. 7,567,622)
`
`25.
`
`26.
`
`Plaintiff incorporates the above paragraphs herein by reference.
`
`On July 28, 2009, United States Patent No. 7,567,622 (“the ‘622 Patent”) was
`
`duly and legally issued by the United States Patent and Trademark Office. The ‘622 Patent is
`
`titled “Constellation Rearrangement for ARQ Transmit Diversity Schemes.” The ‘622 patent
`
`issued from an application that is a continuation of the application leading to the ‘961 patent. A
`
`true and correct copy of the ‘622 Patent is attached hereto as Exhibit B and incorporated herein
`
`by reference.
`
`27.
`
`Swirlate is the assignee of all right, title and interest in the ‘622 patent, including
`
`all rights to enforce and prosecute actions for infringement and to collect damages for all
`
`relevant times against infringers of the ‘622 Patent. Accordingly, Swirlate possesses the
`
`exclusive right and standing to prosecute the present action for infringement of the ‘622 Patent
`
`by Defendant.
`
`28.
`
`The ‘622 patent shares the same specification as the ‘961 patent and therefore the
`
`background information regarding the ‘961 patent in paragraphs 11 through 15 are incorporated
`
`by reference.
`
`29.
`
`During the prosecution history, applicant explained the benefits of the claimed
`
`invention. The claim “defines an ARQ retransmission method in which more than two data bits
`
`are mapped onto one data symbol in each of the initial transmission and a retransmission. The
`
`symbols of the initial transmission and the retransmission represent the same bit information, but
`
`are different symbols due to different bit mappings. Since different bits of a modulation symbol
`
`
`
`9
`
`

`

`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 10 of 16 PageID #: 10
`
`have different communications reliabilities, the claimed subject matter supports averaging the
`
`communication reliabilities for each bit mapped onto a transmission symbol and a retransmission
`
`symbol so as to improve the likelihood of receiving the bit.” (Ex. C at 16).
`
`30.
`
`An advantage of the claimed subject matter “lies in reducing the overall data
`
`traffic, since the claimed retransmission is only needed in situations where any initial
`
`transmission cannot be successfully received by a receiver. The claimed subject matter employs
`
`retransmission and diversity combining only when the initial transmission is not received
`
`properly, whereas [the prior art] communications scheme always transmits identical data over
`
`three parallel paths for diversity combining by a receiver and does not retransmit data in
`
`accordance with a repeat request by a receiver.” (Ex. C at 17).
`
`31.
`
`Direct Infringement. Upon information and belief, Defendant has been directly
`
`infringing at least claim 1 of the ‘622 patent in Delaware, and elsewhere in the United States, by
`
`performing actions comprising at least performing the claimed ARQ re-transmission method by
`
`performing the steps of the claimed invention using the Mediant 500L MSBR (“Accused
`
`Instrumentality”) (e.g., https://www.audiocodes.com/solutions-products/products/multi-service-
`
`business-routers-msbrs/mediant-500l-msbr).
`
`32.
`
`The Accused Instrumentality uses an ARQ re-transmission method in a wireless
`
`communication system wherein data packets are transmitted from a transmitter to a receiver
`
`using a higher order modulation scheme wherein more than two data bits are mapped onto one
`
`data symbol to perform a first transmission and at least a second transmission based on a repeat
`
`request. For example, the Accused Instrumentality uses an HARQ method in an LTE network in
`
`which data packets are transmitted from the Accused Instrumentality to an LTE base station
`
`using a higher order modulation scheme (e.g., 16QAM and 64 QAM) wherein more than two
`
`
`
`10
`
`

`

`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 11 of 16 PageID #: 11
`
`data bits are mapped onto one data symbol to perform a first transmission and at least a second
`
`transmission (e.g., HARQ retransmission) based on a repeat request (e.g., HARQ retransmission
`
`request
`
`in
`
`the
`
`form
`
`of NAK).
`
`(E.g.,
`
`https://www.audiocodes.com/solutions-
`
`products/products/multi-service-business-routers-msbrs/mediant-500l-msbr;
`
`http://www.techplayon.com/hybrid-automatic-repeat-request-harq-in-lte-fdd/;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df). For example, the Accused Instrumentality, at least in its internal testing and usage, performs
`
`a higher order data modulation such as 16QAM and 64 QAM wherein has more than two data
`
`bits are mapped onto one data symbol (i.e., in case of 16QAM it transmits 4 bits per symbol
`
`whereas in the case of 64QAM it transmits 6 bits per symbol). (Id.).
`
`33.
`
`Upon information and belief, the Accused instrumentality performs the step of
`
`modulating data packets at the transmitter using a first mapping of said higher order modulation
`
`scheme to obtain first data symbols. For example, the Accused Instrumentality, at least in its
`
`internal testing and usage, performs a higher order data modulation such as 16QAM and 64
`
`QAM which have more than two data bits are mapped onto one data symbol (i.e., in case of
`
`16QAM it transmits 4 bits per symbol whereas in the case of 64QAM it transmits 6 bits per
`
`symbol) so as to obtain a said first data symbols which is the output of the modulation block.
`
`(E.g., https://www.audiocodes.com/solutions-products/products/multi-service-business-routers-
`
`msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`34.
`
`Upon information and belief, the Accused Instrumentality performs the step of
`
`performing the first transmission by transmitting the first data symbols over a first diversity
`
`
`
`11
`
`

`

`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 12 of 16 PageID #: 12
`
`branch to the receiver. For example, the Accused Instrumentality, at least in its internal testing
`
`and usage, when performing an HARQ transmission, transmits the first data symbols over a first
`
`diversity branch using multi-antenna processing which maps from assigned resource blocks to
`
`the first available number of antenna ports. (E.g., https://www.audiocodes.com/solutions-
`
`products/products/multi-service-business-routers-msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`35.
`
`Upon information and belief, the Accused Instrumentality performs the step of
`
`receiving at the transmitter the repeat request issued by the receiver to retransmit the data packets
`
`in case the data packets of the first transmission have not been successfully decoded. For
`
`example, the Accused Instrumentality, at least in its internal testing and usage, receives a repeat
`
`request (e.g., an HARQ retransmission request in the form of a NAK) issued by the receiver to
`
`retransmit the data packets in case the data packets of the first transmission have not been
`
`successfully decoded (e.g., there was an error indication in the data received). (E.g.,
`
`https://www.audiocodes.com/solutions-products/products/multi-service-business-routers-
`
`msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`36.
`
`Upon information and belief, the Accused Instrumentality performs the step of
`
`modulating, in response to the received repeat request, said data packets at the transmitter using a
`
`second mapping of a higher order modulation scheme to obtain second data symbols. For
`
`example, the Accused Instrumentality, at least in its internal testing and usage, upon receiving a
`
`retransmission request in the form of a NAK, enables a second mapping of a higher order
`
`
`
`12
`
`

`

`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 13 of 16 PageID #: 13
`
`modulation scheme (i.e., an adaptive re-transmission having a different Modulation Coding
`
`Scheme (MCS) than the one used for transmission, i.e., first higher order modulation scheme).
`
`(E.g., https://www.audiocodes.com/solutions-products/products/multi-service-business-routers-
`
`msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`37.
`
`Upon information and belief, the Accused Instrumentality performs the step of
`
`performing, in response to the received repeat request, the second transmission by transmitting
`
`the second data symbols over a second diversity branch to the receiver. For example, the
`
`Accused Instrumentality, at least in its internal testing and usage, in response to a retransmission
`
`request in the form of a NAK, transmits second data symbols over a second or later diversity
`
`branch using multi-antenna processing which maps from assigned resource blocks to the later
`
`available number of
`
`antenna ports.
`
`
`
`(E.g., https://www.audiocodes.com/solutions-
`
`products/products/multi-service-business-routers-msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`38.
`
`Upon information and belief, the Accused Instrumentality performs the step of
`
`demodulating the received first and second data symbols at the receiver using the first and
`
`second mappings respectively. For example, the Accused Instrumentality, at least in its internal
`
`testing and usage, uses a base station which practices demodulation of first data symbols (e.g.,
`
`output of modulation block performing said first modulation scheme) and second data symbols
`
`(e.g., output of modulation block using a second modulation scheme) at the LTE base station
`
`using the first and second modulation scheme, i.e., Modulation Coding Scheme (MCS) which are
`
`
`
`13
`
`

`

`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 14 of 16 PageID #: 14
`
`distinct for transmission and Adaptive Re-transmission (i.e., an Adaptive Re-transmission having
`
`a different MCS than the one used for transmission, i.e., first higher order modulation scheme).
`
`(E.g., https://www.audiocodes.com/solutions-products/products/multi-service-business-routers-
`
`msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`39.
`
`Upon information and belief, the Accused Instrumentality performs the step of
`
`diversity combining the demodulated data received over the first and second diversity branches.
`
`For example, the Accused Instrumentality, at least in its internal testing and usage, uses a base
`
`station which performs a diversity combining, i.e., Hybrid ARQ soft-combining of data from
`
`multiple
`
`received
`
`antenna
`
`ports.
`
`
`
`(E.g.,
`
`https://www.audiocodes.com/solutions-
`
`products/products/multi-service-business-routers-msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`40.
`
`Upon information and belief, the Accused Instrumentality performs the step using
`
`first and second mapping of said higher order modulation schemes that are pre-stored in a
`
`memory table. For example, the Accused Instrumentality, at least in its internal testing and
`
`usage, uses higher order modulation schemes (e.g., 16QAM and 64 QAM) that are pre-stored in
`
`a memory
`
`table such as
`
`those schemes used by a MAC scheduler.
`
`
`
`(E.g.,
`
`https://www.audiocodes.com/solutions-products/products/multi-service-business-routers-
`
`msbrs/mediant-500l-msbr;
`
`https://www.etsi.org/deliver/etsi_ts/136300_136399/136302/08.00.00_60/ts_136302v080000p.p
`
`df).
`
`
`
`14
`
`

`

`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 15 of 16 PageID #: 15
`
`41.
`
`Plaintiff has been damaged as a result of Defendant’s infringing conduct.
`
`Defendant is thus liable to Plaintiff for damages in an amount that adequately compensates
`
`Plaintiff for such Defendant’s infringement of the ‘961 patent and ‘622 patent, i.e., in an amount
`
`that by law cannot be less than would constitute a reasonable royalty for the use of the patented
`
`technology, together with interest and costs as fixed by this Court under 35 U.S.C. § 284.
`
`42.
`
`On information and belief, Defendant has had at least constructive notice of the
`
`‘961 patent and ‘622 patent by operation of law and marking requirements have been complied
`
`with.
`
`
`
`IV. JURY DEMAND
`
`Plaintiff, under Rule 38 of the Federal Rules of Civil Procedure, requests a trial by jury of
`
`any issues so triable by right.
`
`V. PRAYER FOR RELIEF
`
`
`
`WHEREFORE, Plaintiff respectfully requests that the Court find in its favor and against
`
`Defendant, and that the Court grant Plaintiff the following relief:
`
`a.
`
`b.
`
`c.
`
`
`d.
`
`Judgment that one or more claims of United States Patent No. 7,154,861 have
`been infringed, either literally and/or under the doctrine of equivalents, by
`Defendant;
`
`Judgment that one or more claims of United States Patent No. 7,567,622 have
`been infringed, either literally and/or under the doctrine of equivalents, by
`Defendant;
`
`Judgment that Defendant account for and pay to Plaintiff all damages to and costs
`incurred by Plaintiff because of Defendant’s infringing activities and other
`conduct complained of herein;
`
`That Plaintiff be granted pre-judgment and post-judgment interest on the damages
`caused by Defendant’s infringing activities and other conduct complained of
`herein;
`
`e.
`
`That Plaintiff be granted such other and further relief as the Court may deem just
`and proper under the circumstances.
`
`15
`
`
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-00075-UNA Document 1 Filed 01/26/21 Page 16 of 16 PageID #: 16
`
`
`
`
`
`January 26, 2021
`
`
`OF COUNSEL:
`
`
`
`David R. Bennett
`Direction IP Law
`P.O. Box 14184
`Chicago, IL 60614-0184
`(312) 291-1667
`dbennett@directionip.com
`
`
`CHONG LAW FIRM P.A.
`
`
` /s/ Jimmy Chong
`Jimmy Chong (#4839)
`2961 Centerville Road, Suite 350
`Wilmington, DE 19808
`Telephone: (302) 999-9480
`Facsimile: (877) 796-4627
`Email: chong@chonglawfirm.com
`
`
`Attorneys for Plaintiff Swirlate IP LLC
`
`
`
`
`
`16
`
`