Case 1:17-cv-05428-PAE Document 1 Filed 07/18/17 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`------------------------------------------------------ x
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`Case No.: 17-cv-5428
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`JURY TRIAL DEMANDED
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`:::::::::::
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`SPHERO, INC.,
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`Plaintiff,
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`- against -
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`SPIN MASTER LTD. and
`SPIN MASTER INC.,
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`Defendants.
`------------------------------------------------------ x
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`COMPLAINT
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`Plaintiff Sphero, Inc. (“Sphero”) brings this action for patent
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`infringement against
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`defendant Spin Master Ltd. and Spin Master Inc. (collectively, “Spin Master”), and on information
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`and belief alleges as follows:
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`NATURE OF THE ACTION
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`1.
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`Colorado-based robotics start-up Sphero is the world’s leading innovator and
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`manufacturer of user-controlled, self-propelled robotic spheres, which it has developed, marketed,
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`and sold since 2011.1 After years of dedicated effort to expand its product line and introduce its
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`robotics into consumers’ homes and classrooms, Sphero reached its breakout moment through the
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`launch of its Star Wars themed BB-8 robot in connection with the 2015 movie release of Star Wars
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`Episode VII: The Force Awakens.
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`2.
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`In April 2014, Sphero realized that it could couple a magnetic accessory to its
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`1 Sphero was initially known as GearBox, Inc. and then Orbotix, Inc. Unless otherwise indicated, this
`complaint will use “Sphero” to refer to both Sphero and its predecessors interchangeably, depending on the
`relevant date. The company’s name was changed from Orbotix to Sphero in June 2015.
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`Case 1:17-cv-05428-PAE Document 1 Filed 07/18/17 Page 2 of 15
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`robotic sphere, which would ride on top of the ball as it rolled. Just months later, Sphero spoke
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`with the creators of Star Wars concerning the heroic droid being featured in its then-upcoming Star
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`Wars movie, The Force Awakens. This droid, “BB-8,” has a spherical body with a head that
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`appears to float above its body as it rolls. After seeing the first images of BB-8, Sphero recognized
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`that its technology was uniquely suited to bring BB-8 to life as an authentic and highly-functioning
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`robot to be enjoyed by Star Wars fans of all ages. Sphero’s BB-8 achieved this objective, instantly
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`garnering countless positive reviews from the media and grabbing the attention of moviegoers and
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`Star Wars enthusiasts throughout the world.
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`3.
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`Spin Master is a Toronto-based multinational toy and game manufacturer.
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`Its
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`product line is diverse and features numerous successful toy brands, such as Air Hogs®, Paw
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`Patrol® and Hatchimals®.
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`4.
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`Spin Master seeks to exploit Sphero’s success by launching a competing BB-8
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`robot, just as the retail market and moviegoers ready themselves for the much anticipated
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`blockbuster release of the next new Star Wars movie, Episode VIII: The Last Jedi, which is set to
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`hit theatres on December 15, 2017. As shown in the movie trailers for The Last Jedi, BB-8 will
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`be a central character in the upcoming movie.
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`5.
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`Spin Master’s BB-8 utilizes Sphero’s patented technology to replicate BB-8’s core
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`characteristics and movements. Both Spin Master’s and Sphero’s BB-8 products consist of a
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`spherical ball body which houses an internal drive system and a mechanism that magnetically
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`couples BB-8’s head to its body. These technologies are critical for creating the appearance that
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`BB-8’s head is floating above its spherical body.
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`6.
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`Sphero has commenced this action in an attempt to ensure that its strategic path to
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`becoming a household name in the consumer electronics market is not usurped by Spin Master
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`Case 1:17-cv-05428-PAE Document 1 Filed 07/18/17 Page 3 of 15
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`through Spin Master’s unauthorized use of Sphero’s patented technologies. This action is
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`necessary to ensure that this revolutionary new toy is properly attributed to Sphero, and that Sphero
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`is able to fully realize the return its patented innovation warrants.
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`THE PARTIES
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`7.
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`Plaintiff Sphero, Inc. is a corporation organized and existing under the laws of
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`Delaware, with its principal place of business at 4772 Walnut Street, Suite 206, Boulder, Colorado
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`80301.
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`8.
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`Defendant Spin Master Ltd. is a Canadian corporation, which purports to have its
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`principal place of business at 450 Front Street West, Toronto, Ontario MSV 1B6 Canada and/or
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`121 Bloor St E, Toronto, ON M4W 1A9, Canada.
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`9.
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`Defendant Spin Master Inc. is a Delaware corporation, which purports to have a
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`principal place of business at 200 5th Avenue, New York, New York 10010. Spin Master Inc. is
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`believed to be a wholly owned subsidiary of Spin Master Ltd.
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`JURISDICTION AND VENUE
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`10.
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`11.
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`This action arises under the patent laws of the United States, 35 U.S.C. § 1, et seq.
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`This Court has original jurisdiction over this patent infringement action pursuant to
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`28 U.S.C. §§ 1331 and 1338(a).
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`12.
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`This Court has personal jurisdiction over Spin Master because it, directly or through
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`intermediaries, has continuous and systematic marketing, sales, and distribution contacts within
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`the State of New York and has purposefully availed itself by committing acts of patent
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`infringement within New York that give rise to this action. For example, Michael Tillman, Senior
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`Brand Manager at Spin Master Inc., and Johnny O’Neal, Marketing Manager at Spin Master Inc.,
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`conducted live product demonstrations of fully assembled and operational infringing Spin Master
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`Case 1:17-cv-05428-PAE Document 1 Filed 07/18/17 Page 4 of 15
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`BB-8s at the 2017 New York Toy Fair.
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`13.
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`Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and 1400(b)
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`because Spin Master has committed acts of patent infringement in this District, Spin Master is
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`subject to personal jurisdiction in this District, and, upon information and belief, Spin Master,
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`directly or indirectly, has an established place of business in this District.
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`In particular, Spin
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`Master Inc. is believed to have offices in this District at the address 500 5th Avenue, New York,
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`New York 10010.
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`14.
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`Furthermore, Spin Master Ltd. and Spin Master Inc. are believed to work in active
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`concert and participation with each other. On information and belief, Spin Master Ltd. and Spin
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`Master Inc. actively cooperated with one another in orchestrating the events of the 2017 New York
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`Toy Fair. Mr. Tillman (who wore a Spin Master Inc. badge at the Toy Fair) has a LinkedIn profile
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`that has listed him as a Brand Manager for Spin Master Ltd. And Mr. O’Neal (who likewise wore
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`a Spin Master Inc. badge at the Toy Fair) has a ZoomInfo profile that currently lists him as Senior
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`Director, Boys Global Business Unit for Spin Master Ltd. Spin Master Ltd. is believed to be the
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`corporate entity primarily responsible for directing and controlling the importation of these
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`products into the United States and their sale (including in this judicial District).
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`FACTUAL BACKGROUND
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`15.
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`Sphero released its first user-controlled robotic ball, Sphero 1.0, in 2011, followed
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`by Sphero 2.0 in 2013. Sphero’s robotic balls are powered by an internal drive system and are
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`controlled by a smartphone or tablet software application (or “app”). All Sphero robotic balls are
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`noted for their speed, agility, and ease of control.
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`16.
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`In January 2014, Sphero expanded its product line through its launch of “Ollie.”
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`Ollie has a cylindrically-shaped body with treaded wheels at each end of the cylinder. Like Sphero
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`1.0 and 2.0, Ollie is controlled through a smartphone or tablet application, and is capable of moving
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`at high rates of speed, jumping and crashing into everyday objects as it zooms around. Sphero
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`sells accessories for Ollie, including ramps, a terrain park, and different textured and colored tires,
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`all of which expand the ways users enjoy and interact with the product.
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`17.
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`In April 2014, Sphero introduced another facet to its rapidly expanding brand
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`through its launch of the SPRK (“Schools Parents Robots Kids”) educational robotic ball. The
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`SPRK Edition provides an innovative, entertaining way for teaching students concepts in math,
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`computer programming, and robotics, while also engaging students’ imaginations in areas such as
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`critical thinking and storytelling. Sphero states that “[t]he passionate objective of SPRK is to
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`inspire and teach tomorrow’s inventors and innovators.” The SPRK platform has been a huge
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`success and is now utilized in over 10,000 schools worldwide.
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`18.
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`In September 2016, Sphero launched its Force Band, a novel watchband controller
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`that allows users to control the Sphero BB-8 through a variety of hand motions. Force Band
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`technology is also being integrated into other Sphero products to provide consumers with an
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`enhanced experience by enabling users to push, pull, and control their Sphero robots through hand
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`and arm movements.
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`19.
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`In 2017, Sphero introduced a robot model of Lighting McQueen from the movie
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`Cars, as well as an interactive Spiderman product.
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`20.
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`Through all of these products, Sphero has achieved an extraordinarily sophisticated
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`merger of hardware and software, powered by the computing power of mobile computing devices.
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`SPHERO’S BB-8 OPPORTUNITY
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`21.
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`In April 2014, Sphero recognized that adding a magnetic accessory to the top of the
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`Sphero ball could extend its product line. Sphero’s initial design for an accessory device featured
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`Case 1:17-cv-05428-PAE Document 1 Filed 07/18/17 Page 6 of 15
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`a magnetically-coupled plastic ring that rode on top of the robotic ball, giving the appearance of a
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`floating head.
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`22.
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`In July 2014, Sphero met with the creators of Star Wars. During those meetings,
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`Sphero was shown early images of what would become BB-8, the hero droid of The Force
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`Awakens. Upon viewing these early images of the new BB-8 droid, Sphero immediately
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`recognized that its technologies were uniquely suited to transport BB-8 from the big screen into
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`the homes of Star Wars’ fans around the world. Promptly thereafter, Sphero made a full prototype
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`of the BB-8 droid. Sphero’s prototype was a hit and Sphero subsequently entered into a licensing
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`agreement with Disney to manufacture and sell Disney-authorized BB-8s.
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`23.
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`Sphero released its BB-8 robot on Friday, September 4, 2015 – the Disney
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`designated global marketing day designed to kick off and spur sales of new Star Wars products,
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`known as “Force Friday.” Sphero’s BB-8 is remarkably similar to the film BB-8, faithfully
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`capturing the characteristics, mannerisms, and movements of the Star Wars droid that millions of
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`fans quickly came to love.
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`24.
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`The release of Sphero’s BB-8 was met with wide acclaim.
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`In lauding Sphero’s
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`latest release, Gizmodo’s Toyland blog cheered:
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`Coolest Star Wars Toy Ever. . . . For the past 38 years there hasn’t been a robot
`more loved by fans than Star Wars’ R2-D2. But that could all soon change when
`The Force Awakens hit theaters, especially now that anyone can own a tiny working
`version of the movie’s BB-8 droid that can roll and balance by itself.
`
`SPHERO’S PATENT
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`25.
`
`Sphero has expended significant resources to develop and amass the sizeable patent
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`portfolio that protects various aspects of its robotic ball technology. One such patent is United
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`States Patent No. 9,211,920, which issued on December 15, 2015 (“the ’920 Patent”) (attached
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`hereto as Exhibit A). The claims of the ’920 Patent cover the basic mobility functions of Sphero’s
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`Case 1:17-cv-05428-PAE Document 1 Filed 07/18/17 Page 7 of 15
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`BB-8 robot. Specifically, this patent covers the “tilt” feature of Sphero’s BB-8 that allows
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`Sphero’s product to capture the movement and personality of the BB-8 seen on the screen. The
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`’920 Patent’s claims are directed at the angular displacement of the internal drive system as the
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`sphere accelerates and decelerates during operation. The claims also feature the ability of the
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`droid’s head to remain stably coupled to the spherical housing as it operates.
`
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`
`22,121i41.0.
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`
`412
`
`FrG. 3
`
`Pa 4
`
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`
`410
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`26.
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`The ability for BB-8’s head to remain attached to its body during operation is
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`critical in creating the appearance that BB-8’s head floats on top of its body. BB-8’s head moves
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`in tandem with the displacement (or tilt) of the drive system, enabling it to capture the personality
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`of the Star Wars BB-8 droid.
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`SPIN MASTER’S BB-8
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`27.
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`In February 2016, Spin Master disclosed a rough prototype for a larger-sized BB-8
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`robot at the New York Toy Fair. This prototype was rudimentary and far from a fully-functioning
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`model.
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`28.
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`A year later, at Toy Fair 2017 in New York City, Spin Master debuted a working
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`BB-8 prototype, which included a variety of new features not found in its initial 2016 prototype,
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`such as a re-designed controller device. At the 2017 Toy Fair, Spin Master representatives
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`Case 1:17-cv-05428-PAE Document 1 Filed 07/18/17 Page 8 of 15
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`conducted a variety of live product demonstrations that were captured on videos and uploaded to
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`the internet by numerous attendees.
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`29.
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`In April 2017, Sphero representatives attended Star Wars Celebration in Orlando,
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`Florida, which is an annual conference dedicated to providing a variety of experiences for Star
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`Wars enthusiasts. At the conference, Spin Master provided additional product demonstrations of
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`its latest prototype of its BB-8 robot.
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`30.
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`Spin Master’s 2017 product demonstrations, coupled with its challenge to Sphero’s
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`patent made clear that Spin Master’s BB-8 product is utilizing Sphero’s innovative robotic ball
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`technology, including its proprietary head tilting and magnetic-coupling mechanisms. Spin
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`Master’s BB-8 is operable through a drive system housed within BB-8’s spherical body, which
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`responds to voice commands and is directed by a hand-held controller. The comments of Spin
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`Master’s representatives at these demonstrations confirm that the Spin Master BB-8 head is
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`magnetically coupled to the spherical body. This magnetic interaction allows BB-8’s head to
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`maintain continuous contact with the exterior of the spherical housing during ordinary operation
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`and, importantly, during periods of acceleration and deceleration.
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`INTERACTIONS WITH SPIN MASTER
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`31.
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`Upon learning of Spin Master’s plans to launch its own version of the BB-8 product
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`in 2016, Sphero immediately entered into discussions with Spin Master to determine if the parties
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`could reach a commercially reasonable arrangement that would also be protective of Sphero’s
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`business and market share. Spin Master had full notice of the ’920 patent at least by early 2016.
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`Unfortunately, no such arrangement proved possible.
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`32.
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`Thereafter, on April 20, 2017, Spin Master filed a challenge in the Patent Office
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`(inter partes review, or “IPR”) to invalidate several claims of the ’920 Patent. Spin Master did not
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`Case 1:17-cv-05428-PAE Document 1 Filed 07/18/17 Page 9 of 15
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`challenge the validity of many of the claims at issue here, including Claims 19 and 20, which are
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`plainly distinct from the prior art.
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`33.
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`On July 10, 2017, Sphero notified Spin Master that it intended to file suit on July
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`18, 2017, in an attempt to achieve a commercially reasonable arrangement. Spin Master never
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`responded to Sphero’s July 10 letter.
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`34.
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`Sphero cannot allow Spin Master to misappropriate its state-of-the-art technology.
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`Spin Master’s product will be on available from retailers as early as September 1, 2017 and is a
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`direct, competitive threat to Sphero’s flagship BB-8 products, the establishment of Sphero’s name,
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`and the extension of Sphero’s product lines.
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`SPIN MASTER’S INFRINGEMENT
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`35.
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`The Spin Master BB-8 robot comprises of: (1) a wireless remote controller; (2) an
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`internal drive system; (3) a spherical housing for the internal drive system (BB-8’s body); and (4)
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`an accessory device (BB-8’s head).
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`36.
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`Spin Master’s BB-8 droid infringes one or more claims of the ’920 Patent, including
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`but not limited to claims 1, 19, and 20. For example, the Spin Master BB-8 infringes claims 1, 19
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`and 20 because Spin Master’s BB-8 is self-propelled and operates via an internal drive system in
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`BB-8’s spherical housing. The internal drive system engages the interior of the spherical housing,
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`enabling the Spin Master BB-8 to roll or spin on the underlying surface.
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`37. While Spin Master has declined to reveal the inner workings of its BB-8, it is
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`beyond conjecture that an internal structure holds magnets and/or magnetic plates (the “magnetic
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`component”) at the top of the inner shell of the spherical body. Whatever the nature of this
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`structure, it qualifies as an “internal component” that connects the drive system to the magnetic
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`components and holds them at the top of inner shell of the sphere. The internal magnetic
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`Case 1:17-cv-05428-PAE Document 1 Filed 07/18/17 Page 10 of 15
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`component is positioned within the interior of the spherical housing directly across (“diametrically
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`opposed”) from the point of contact between the spherical housing and the underlying surface.
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`38.
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`Spin Master’s BB-8 has an accessory device in the form of BB-8’s head. The
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`accessory device encapsulates magnetic components. The bottom of BB-8’s head is curved in
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`order to conform to the exterior surface of the spherical body. BB-8’s head attaches to the exterior
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`surface of the spherical housing through magnetic attraction to the magnets positioned inside of
`
`the spherical housing.
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`39.
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`The Spin Master BB-8 internal drive system is operable to respond to the inputs on
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`the wireless controller. When a user presses one or more of the control inputs on the controller,
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`the internal drive system causes the spherical housing to roll in the corresponding direction of the
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`user input(s). As the BB-8 maneuvers, the internal drive system and the internal component
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`connected thereto angularly displace (or tilt) relative to vertical. This internal “tilt” is observable
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`through the considerable tilt of BB-8’s head, which is magnetically-coupled to the internal drive
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`system.
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`40.
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`The magnetic interaction between BB-8’s head and the magnets contained in the
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`spherical housing allows BB-8’s head to maintain contact with the exterior surface of the spherical
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`housing during operation. Under normal operating conditions when the droid accelerates or
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`decelerates, the internal component undergoes an angular displacement (or tilt) of greater than 45
`
`degrees, as exhibited by the droid throwing its head backward or forward as the robot starts and
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`stops.
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`41/1/' (cid:9)
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`.
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`41.
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`Spin Master representatives, including Michael Tillman, Senior Brand Manager of
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`Spin Master Inc., and Johnny O’Neal, Spin Master Inc. Marketing Manager, assembled a fully-
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`functioning infringing BB-8 robot on several occasions at the 2017 New York Toy Fair. Spin
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`Master representatives also conducted such demonstrations at the Star Wars Celebration in
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`Orlando, Florida. Through these product demonstrations, Spin Master has directly infringed the
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`’920 Patent. There are no substantial non-infringing uses of the Spin Master BB-8 components.
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`Spin Master’s conduct contributes to infringement by others through the assembly and use the
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`product. Spin Master likewise induces infringement through its pictorial instructions on its
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`packaging and the product instructions it will undoubtedly provide to consumers, which direct its
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`customers how to use an operable toy that directly infringes the ’920 Patent. On information and
`
`belief, Spin Master has already induced and contributed to infringement of the ’920 patent by
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`others in the United States (including at the 2017 New York Toy Fair), including by encouraging
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`toy retailers to use the device in an infringing manner in an attempt to promote sales of the device.
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`Case 1:17-cv-05428-PAE Document 1 Filed 07/18/17 Page 12 of 15
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`FIRST CAUSE OF ACTION
`(Patent Infringement of U.S. Patent No. 9,211,920)
`
`42.
`
`43.
`
`Paragraphs 1-41 are hereby incorporated by reference as if fully set forth herein.
`
`Sphero is the owner of all right, title, and interest in the ’920 Patent. The ’920
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`Patent has been in full force and effect since its issuance.
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`44.
`
`Spin Master has directly infringed the ’920 Patent in violation of 35 U.S.C. § 271(a)
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`by making, using, selling, and/or offering for sale in the United States its BB-8 toy, which practices
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`one or more claims of the ’920 Patent. For example, in several videos capturing Spin Master’s
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`product demonstrations at the 2017 New York Toy Fair and Star Wars Celebration in Orlando,
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`Florida, Spin Master representatives are viewed assembling and operating the infringing BB-8
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`robot. As confirmed by these product demonstrations, the head of the droid, and thus the internal
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`component, exhibit a tilt of more than 45 degrees.
`
`45.
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`Additionally and alternatively, Spin Master induces its customers and others to
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`infringe the ’920 Patent in violation of 35 U.S.C. § 271(b). Use of Spin Master’s BB-8 by its
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`customers and other business partners results in direct infringement of the ’920 Patent when
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`assembling and using the BB-8 droid. Spin Master’s provision of detailed instructions to its
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`customers,
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`including through pictorial
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`instructions on the exterior of its box and banner
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`advertisements shown at the 2017 New York Toy Fair and product demonstrations conducted in
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`front of interested consumers, constitute the instruction and encouragement by Spin Master of
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`activity that results in infringement. At all relevant times, Spin Master was aware of the ’920
`
`Patent and that its BB-8 toy infringes this patent. Spin Master specifically intends to induce
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`infringement through its sale of its BB-8 with detailed instructions directing its customers how to
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`make and use the infringing droid. On information and belief, Spin Master has already induced
`
`infringement of the ’920 patent by others in the United States (including at the 2017 New York
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`Case 1:17-cv-05428-PAE Document 1 Filed 07/18/17 Page 13 of 15
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`Toy Fair), including by encouraging toy retailers to use the device in an infringing manner in an
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`attempt to promote sales of the device.
`
`46.
`
`Additionally and alternatively, Spin Master contributes to its customers’
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`infringement of the ’920 Patent in violation of 35 U.S.C. § 271(c). Use of Spin Master’s BB-8 by
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`its customers and other business partners results in direct infringement of the ’920 Patent when
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`assembling and using the BB-8 droid. Spin Master sells all of the requisite components for the
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`infringing BB-8 droid. Spin Master directs its customers to charge BB-8’s head and body, and
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`explains how to magnetically attach BB-8’s head onto its body. The Spin Master BB-8
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`components are not staple items of commerce and have no substantial non-infringing uses. At all
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`relevant times, Spin Master was aware of the ’920 Patent and that its BB-8 toy infringes this patent.
`
`Spin Master knows that the BB-8 components are made or adapted to infringe the ’920 Patent. On
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`information and belief, Spin Master has already contributed to infringement of the ’920 patent by
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`others in the United States (including at the 2017 New York Toy Fair), including by encouraging
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`toy retailers to use the device in an infringing manner in an attempt to promote sales of the device.
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`PRAYER FOR RELIEF
`
`WHEREFORE, Sphero respectfully requests this Court to:
`
`A.
`
`Issue a preliminary injunction enjoining Spin Master (including its officers,
`
`directors, employees, agents, and all persons acting in concert with them) from infringing the ’920
`
`Patent, including but not limited to the importation, use, and sale of its BB-8 product;
`
`B.
`
`Issue a permanent
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`injunction enjoining Spin Master (including its officers,
`
`directors, employees, agents, and all persons acting in concert with them) from infringing the ’920
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`Patent, including but not limited to the importation, use, and sale of its BB-8 product;
`
`C.
`
`Order that Spin Master pay compensatory damages to Sphero for Spin Master’s
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`Case 1:17-cv-05428-PAE Document 1 Filed 07/18/17 Page 14 of 15
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`infringement of the ’920 Patent, including but not limited to, damages for lost profits and in no
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`event less than a reasonable royalty, together with interest and costs under 35 U.S.C. § 284;
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`D. Award Sphero enhanced damages in view of Spin Master’s willful infringement;
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`E. Award Sphero an accounting of monies due in view of Spin Master’s unlawful
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`conduct;
`
`F.
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`Award Sphero pre-judgment interest;
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`G. Award Sphero its reasonable attorneys’ fees and costs; and
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`H. Grant other such relief that the Court deems appropriate.
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`JURY DEMAND
`
`Plaintiff demands a trial by jury on all counts of its Complaint so triable.
`
`Dated: New York, New York
`July 18, 2017
`
`Respectfully submitted,
`
`KASOWITZ BENSON TORRES LLP
`
`By:
`
`/s/ Paul J. Zoeller
`Paul J. Zoeller
`700 Louisiana Street, Suite 2200
`Houston, TX 77002
`pzoeller@kasowitz.com
`Tel: (713) 220-8800
`Fax: (713) 222-0843
`
`Jordan D. Beltz
`Drew B. Hollander
`1633 Broadway
`New York, NY 10019
`jbeltz@kasowitz.com
`dhollander@kasowitz.com
`Tel: (212) 506-1700
`Fax: (212) 506-1800
`
`Attorneys for Plaintiff Sphero, Inc.
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`Case 1:17-cv-05428-PAE Document 1 Filed 07/18/17 Page 15 of 15
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`Of Counsel:
`
`STEVEN C. CARLSON
`KEVIN M. PASQUINELLI
`Kasowitz Benson Torres LLP
`333 Twin Dolphin Drive, Suite 200
`Redwood Shores, CA 94065
`Tel: (650) 453-5170
`scarlson@kasowitz.com
`kpasquinelli@kasowitz.com
`
`(Pro Hac Vice Forthcoming)
`
`15
`
`