Case: 1:20-cv-00578-MWM Doc #: 1 Filed: 07/24/20 Page: 1 of 18 PAGEID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF OHIO
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`
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`Civil Action No.:
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`TRIAL BY JURY DEMANDED
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`BOXEY TECH LLC,
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` Plaintiff,
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` v.
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`ASICS AMERICA CORPORATION,
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` Defendant.
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`
`COMPLAINT FOR INFRINGEMENT OF PATENT
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`Now comes, Plaintiff, Boxey Tech LLC (“Plaintiff” or “Boxey Tech”), by and through
`
`undersigned counsel, and respectfully alleges, states, and prays as follows:
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`NATURE OF THE ACTION
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`1.
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`This is an action for patent infringement under the Patent Laws of the United States,
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`Title 35 United States Code (“U.S.C.”) to prevent and enjoin Defendant ASICS America
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`Corporation (hereinafter “Defendant”), from infringing and profiting, in an illegal and
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`unauthorized manner, and without authorization and/or consent from Plaintiff from U.S. Patent
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`Nos. 8,560,238 (“the ‘238 Patent”) and 8,731,833 (“the ‘833 Patent”) (collectively the “Patents-
`
`in-Suit”), which are attached hereto as Exhibits A and B, respectively, and incorporated herein by
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`reference, and pursuant to 35 U.S.C. §271, and to recover damages, attorney’s fees, and costs.
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`THE PARTIES
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`2.
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`Plaintiff is a Texas limited liability company with its principal place of business at
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`5570 FM 423 – Suite 250-2049, Frisco, Texas 75034.
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`3.
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`Upon information and belief, Defendant is a corporation organized under the laws
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`of California, having a principal place of business in Irvine, California. Upon information and
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`belief, Defendant may be served with process c/o Registered Agent Solutions, Inc., 4568 Mayfield
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`Road – Suite 204, Cleveland, Ohio 44121.
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`4.
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`Upon information and belief, Defendant owns, operates, or maintains a physical
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`presence at 400 Premium Outlets Drive, Monroe, Ohio 45050, which is in this judicial district.
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`5.
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`Upon information and belief, and as shown in below, Defendant, or a
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`related/affiliated company to Defendant, acquired Fitness Keeper, Inc. in the USA as a wholly
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`owned subsidiary.
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`2
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`6.
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`Plaintiff is further informed and believes, and on that basis alleges, that Defendant
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`operates the website www.runkeeper.com, which is in the business of providing geographic
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`location services for running and other fitness activities, amongst other things. Defendant derives
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`a portion of its revenue from sales and distribution via electronic transactions conducted on and
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`using at least, but not limited to, its Internet website located at www.runkeeper.com, and its
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`incorporated and/or related systems (collectively the “Runkeeper Website”). Plaintiff is informed
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`and believes, and on that basis alleges, that, at all times relevant hereto, Defendant has done and
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`continues to do business in this judicial district, including, but not limited to, providing
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`products/services to customers located in this judicial district by way of the Runkeeper Website.
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`JURISDICTION AND VENUE
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`7.
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`This is an action for patent infringement in violation of the Patent Act of the United
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`States, 35 U.S.C. §§1 et seq.
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`8.
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`The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
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`§§1331 and 1338(a).
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`9.
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`This Court has personal jurisdiction over Defendant by virtue of its systematic and
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`continuous contacts with this jurisdiction and its residence in this District, as well as because of
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`the injury to Plaintiff, and the cause of action Plaintiff has risen in this District, as alleged herein.
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`10.
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`Defendant is subject to this Court’s specific and general personal jurisdiction
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`pursuant to its substantial business in this forum, including: (i) at least a portion of the
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`infringements alleged herein; and (ii) regularly doing or soliciting business, engaging in other
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`persistent courses of conduct, and/or deriving substantial revenue from goods and services
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`provided to individuals in this forum state and in this judicial District.
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`11.
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`Venue is proper in this judicial district pursuant to 28 U.S.C. §1400(b) because
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`Defendant resides in this District under the Supreme Court’s opinion in TC Heartland v. Kraft
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`Foods Group Brands LLC, 137 S. Ct. 1514 (2017) through its regular and established place of
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`business in this District.
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`FACTUAL ALLEGATIONS
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`12.
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`On October 12, 2013, the United States Patent and Trademark Office (“USPTO”)
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`duly and legally issued the ‘238 Patent, entitled “COMPUTING PATHS BETWEEEN
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`GEOGRAPHIC LOCALITIES” after a full and fair examination. The ‘238 Patent is attached
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`hereto as Exhibit A and incorporated herein as if fully rewritten.
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`13.
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`Plaintiff is presently the owner of the ‘238 Patent, having received all right, title
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`and interest in and to the ‘238 Patent from the previous assignee of record. Plaintiff possesses all
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`rights of recovery under the ‘238 Patent, including the exclusive right to recover for past
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`infringement.
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`14.
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`To the extent required, Plaintiff has complied with all marking requirements under
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`35 U.S.C. § 287.
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`15.
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`The invention claimed in the ‘238 Patent comprises a computer-readable storage
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`medium storing content that, if executed by computing system having a processor, causes the
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`computing system to perform a method.
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`16. Claim 13 of the ‘238 Patent recites a non-abstract method for a method for computing
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`paths between geographical localities.
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`17. Claim 13 of the ‘238 Patent provides the practical application of a method for
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`computing paths between geographical localities.
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`18. Claim 13 of the ‘238 Patent provides an inventive step for computing paths between
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`geographical localities to address the deficiencies and needs identified in the Background section
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`of the ‘238 Patent. See Ex. A at Col.1:19-30
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`19.
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`Claim 13 of the ‘238 Patent states:
`
`“13. A computer-readable storage medium storing content that, if executed
`by computing system having a processor, causes the computing system to perform
`a method comprising:
`receiving a set of connections between geographical localities, each
`connection connecting one geographical locality to one other geographical locality
`with no intermediate geographical localities along the connection;
`receiving a request to provide a path from a first geographical locality to a
`second geographical locality;
`determining, based at least in part on the received set of connections, a
`plurality of paths from the first geographical locality to the second geographical
`locality, wherein a first path includes a third geographical locality but does not
`include a fourth geographical locality and wherein the second path includes the
`fourth geographical locality but does not include the third geographical locality;
`and
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`identifying, by the processor, a path between the first geographical locality
`and the second geographical locality based at least in part on a popularity rating for
`the third geographical locality and a popularity rating for the fourth geographical
`locality.” Ex. A at Col.16:1-23.
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`As identified in the ‘238 Patent, prior art systems had technological faults, namely,
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`20.
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`“turn-by-turn directions are directions suitable for people who are familiar with reading maps or
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`who reside in developed areas where all streets have names. However, in some areas, e.g., in some
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`developing countries, not all streets have street names. Moreover, many people in these areas do
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`not think of directions in terms of streets, distances, and turn.” Ex. A at Col 1:25-30.
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`21.
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`Claim 13 of the ‘238 Patent addressed the need for an improved a method for
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`computing paths between geographical localities that overcomes one or more of the
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`aforementioned computer-centric or internet-centric disadvantages of prior art methods and
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`systems. Specifically, to deal with situations where turn-by-turn directions are required for streets
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`that do not have names or other aggregative factors pertaining to how people in those areas think
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`of directions, the method of Claim 13 in the ‘238 patent requires (a) receiving a set of connections
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`between geographical localities, each connection connecting one geographical locality to one other
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`geographical locality with no intermediate geographical localities along the connection; (b)
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`receiving a request to provide a path from a first geographical locality to a second geographical
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`locality; (c) determining, based at least in part on the received set of connections, a plurality of
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`paths from the first geographical locality to the second geographical locality, wherein a first path
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`includes a third geographical locality but does not include a fourth geographical locality and
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`wherein the second path includes the fourth geographical locality but does not include the third
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`geographical locality; and (d) identifying, by the processor, a path between the first geographical
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`locality and the second geographical locality based at least in part on a popularity rating for the
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`third geographical locality and a popularity rating for the fourth geographical locality. Further,
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`these specific elements also accomplish these desired results to overcome the then existing
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`problems in the relevant field of geolocations systems. Ancora Technologies, Inc. v. HTC America,
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`Inc., 908 F.3d 1343, 1348 (Fed. Cir. 2018) (holding that improving computer security can be a
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`non-abstract computer-functionality improvement if done by a specific technique that departs from
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`earlier approaches to solve a specific computer problem). See also Data Engine Techs. LLC v.
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`Google LLC, 906 F.3d 999 (Fed. Cir. 2018); Core Wireless Licensing v. LG Elecs., Inc., 880 F.3d
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`1356 (Fed. Cir. 2018); Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299 (Fed. Cir. 2018); Uniloc
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`USA, Inc. v. LG Electronics USA, Inc., 957 F.3d 1303 (Fed. Cir. April 30, 2020).
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`22.
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`Claims need not articulate the advantages of the claimed combinations to be
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`eligible. Uniloc USA, Inc. v. LG Elecs. USA, Inc., 957 F.3d 1303, 1309 (Fed. Cir. 2020).
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`23.
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`These specific elements of Claim 13 of the ‘238 Patent were an unconventional
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`arrangement of elements because the prior art methodologies would simply use turn-by-turn
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`directions. By adding the specific elements (i.e., determining, based at least in part on the received
`
`set of connections, a plurality of paths from the first geographical locality to the second
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`geographical locality, wherein a first path includes a third geographical locality but does not
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`include a fourth geographical locality and wherein the second path includes the fourth geographical
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`locality but does not include the third geographical locality; and identifying, by the processor, a
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`path between the first geographical locality and the second geographical locality based at least in
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`part on a popularity rating for the third geographical locality and a popularity rating for the fourth
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`geographical locality), Claim 13 of the ‘238 Patent was able to unconventionally generate a method
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`for computing paths between geographical localities. Cellspin Soft, Inc. v. FitBit, Inc., 927 F.3d
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`1306 (Fed. Cir. 2019)
`
`24.
`
`Further, regarding the specific non-conventional and non-generic arrangements of
`
`known, conventional pieces to overcome an existing problem, the method of Claim 13 in the ‘238
`
`Patent provides a method for computing paths between geographical localities that would not
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`preempt all ways of computing paths because the computed paths is based on determining, based
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`at least in part on the received set of connections, a plurality of paths from the first geographical
`
`locality to the second geographical locality, wherein a first path includes a third geographical
`
`locality but does not include a fourth geographical locality and wherein the second path includes
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`the fourth geographical locality but does not include the third geographical locality; and
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`identifying, by the processor, a path between the first geographical locality and the second
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`geographical locality based at least in part on a popularity rating for the third geographical locality
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`and a popularity rating for the fourth geographical locality, any of which could be removed or
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`performed differently to permit a method of gaining access to network in a different way. Bascom
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`Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016); See also DDR
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`Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014)
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`25.
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`Based on the allegations, it must be accepted as true at this stage, that Claim 13 of
`
`the ‘238 Patent recites a specific, plausibly inventive way of computing paths between
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`geographical localities. Cellspin Soft, Inc. v. Fitbit, Inc., 927 F.3d 1306, 1319 (Fed. Cir. 2019),
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`cert. denied sub nom. Garmin USA, Inc. v. Cellspin Soft, Inc., 140 S. Ct. 907, 205 L. Ed. 2d 459
`
`(2020).
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`26.
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`Alternatively, there is at least a question of fact that must survive the pleading stage
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`as to whether These specific elements of Claim 13 of the ‘238 Patent (i.e., determining, based at
`
`least in part on the received set of connections, a plurality of paths from the first geographical
`
`locality to the second geographical locality, wherein a first path includes a third geographical
`
`locality but does not include a fourth geographical locality and wherein the second path includes
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`the fourth geographical locality but does not include the third geographical locality; and
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`identifying, by the processor, a path between the first geographical locality and the second
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`geographical locality based at least in part on a popularity rating for the third geographical locality
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`and a popularity rating for the fourth geographical locality) were an unconventional arrangement
`
`of elements. Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121 (Fed. Cir. 2018)
`
`See also Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018), cert. denied, 140 S. Ct. 911, 205
`
`L. Ed. 2d 454 (2020).
`
`27.
`
`Based on the foregoing assertions, Claim 13 of the ‘238 Patent provides a non-
`
`abstract and an unconventional inventive concept as described in the specification.
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`28.
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`On May 20, 2014, the United States Patent and Trademark Office (“USPTO”) duly
`
`and legally issued the ‘833 Patent, entitled “COMPUTING PATHS BETWEEEN GEOGRAPHIC
`
`LOCALITIES” after a full and fair examination. The ‘833 Patent is attached hereto as Exhibit B
`
`and incorporated herein as if fully rewritten.
`
`29.
`
`30.
`
`The ‘833 Patent is a continuation of the ‘238 Patent.
`
`Plaintiff is presently the owner of the ‘833 Patent, having received all right, title
`
`and interest in and to the ‘833 Patent from the previous assignee of record. Plaintiff possesses all
`
`rights of recovery under the ‘833 Patent, including the exclusive right to recover for past
`
`infringement.
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`31.
`
`To the extent required, Plaintiff has complied with all marking requirements under
`
`35 U.S.C. § 287 with respect to the ‘833 Patent.
`
`32.
`
`The ‘833 Patent. is valid under 35 U.S.C. §101 for the same reasons discussed
`
`above with respect to the ‘238 Patent.
`
`33.
`
`Claim 1 of the ‘833 Patent states:
`
`1. A computer-readable memory storing content that, when executed by a
`
`computing system having a processor, cause the computing system to perform a
`method comprising:
`
`receiving an indication of a first geographical locality, a second
`geographical locality, a third geographical locality, and a fourth geographical
`locality;
`
`determining a first path between the first geographical locality and the
`second geographical locality, wherein the first path includes the third
`geographical locality but does not include the fourth geographical locality;
`determining a second path between the first geographical locality and the second
`geographical locality, wherein the second path includes the fourth geographical
`locality but does not include the third geographical locality; and
`
`selecting, by the processor, one of the determined paths between the first
`geographical locality and the second geographical locality based at least in part on
`a popularity rating for the third geographical locality and a popularity rating for
`the fourth geographical locality.
`Ex. B. at Col. 14:33-51.
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`34.
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`35.
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`36.
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`37.
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`Claim 7 of the ‘833 Patent states:
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`7. The computer-readable memory of claim 1, the method further
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`comprising: causing the selected path to be rendered.
`Ex. B. at Col. 15:31-34.
`
`Claim 16 of the ‘833 Patent states:
`
`16. A computing system comprising:
`
`a component configured to receive an indication of a first geographical
`
`locality, a second geographical locality, a third geographical locality, and a fourth
`geographical locality;
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`a component configured to determine a popularity rating for the third
`geographical locality;
`
`a component configured to determine a popularity rating for the fourth
`geographical locality; and
`
`a component configured to determine a path between the first geographical
`locality and the second geographical locality based at least in part on the
`popularity rating determined for the third geographical locality and the popularity
`rating determined for the fourth geographical locality.
`Ex. B. at Col. 16:26-40.
`
`Claim 20 of the ‘833 Patent states:
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`20. The computing system of claim 16, the further comprising:
`
`a component configured to cause the determined path to be rendered.
`Ex. B. at Col. 17:13-16.
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`Defendant commercializes, inter alia, methods that perform all the steps recited in
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`at least one claim of the Patents-in-Suit. More particularly, Defendant commercializes, inter alia,
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`methods that perform all the steps recited in Claim 1 of the ‘238 Patent, as well as Claims 1, 7, 16,
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`and 20 of the ‘833 Patent. Specifically, Defendant makes, uses, sells, offers for sale, or imports a
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`method that encompasses that which is covered by Claim 1 of the ‘238 Patent, as well as Claims
`
`1, 7, 16, and 20 of the ‘833 Patent.
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`DEFENDANT’S PRODUCT(S)
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`38.
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`Defendant offers solutions, such as the “Runkeeper” system (the “Accused
`
`Product”), that enables a computer-readable storage medium storing content that, if executed by
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`computing system having a processor, causes the computing system to perform a method. For
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`example, the Accused Product performs the methods and systems of the ‘238 Patent and the ‘833
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`Patent. A non-limiting and exemplary claim chart comparing the Accused Product to Claim 13 of
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`the ‘238 Patent is attached hereto as Exhibit C and is incorporated herein as if fully rewritten. A
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`non-limiting and exemplary claim chart comparing the Accused Product to Claims 1, 7, 16, and
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`20 of the ‘833 Patent is attached hereto as Exhibit D and is incorporated herein as if fully rewritten.
`
`39.
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`As recited in Claim 13 of the ‘238 Patent, the accused product discloses a computer-
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`readable storage medium (e.g., the memory of a smartphone) storing content that, if executed by
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`computing system having a processor (e.g., the processor of the smartphone), causes the computing
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`system (e.g., Runkeeper’s computing system) to perform a method comprising receiving a set of
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`connections between geographical localities (e.g., First Locality and Second Locality), each
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`connection connecting one geographical locality (e.g., First Locality) to one other geographical
`
`locality (e.g., Second Locality) with no intermediate geographical localities along the connection.
`
`See Ex. C.
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`40.
`
`As recited in one step of Claim 13 of the ‘238 Patent, the accused product
`
`discloses receiving a request to provide a path from a first geographical locality (e.g., First
`
`Locality) to a second geographical locality (e.g., Second Locality). See Ex. C.
`
`41.
`
`As soon as Runkeeper’s user request popular route in a particular area, for example
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`Chicago, the accused product provides path between first geographical locality and second
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`geographical locality. See Ex. C.
`
`42.
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`As recited in another step of Claim 13 of the ‘238 Patent, the accused product
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`discloses determining, based at least in part on the received set of connections, a plurality of paths
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`(e.g., multiple paths) from the first geographical locality (e.g., First Locality) to the second
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`geographical locality (e.g., Second Locality), wherein a first path (e.g., highlighted in blue colour)
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`includes a third geographical locality but does not include a fourth geographical locality and
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`wherein the second path (e.g., highlighted in green colour) includes the fourth geographical
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`locality but does not include the third geographical locality. See Ex. C.
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`43.
`
`As shown in Exhibit C, third geographical and fourth geographical localities are
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`different possible routes such as direct freehand route and popular route. Also, third and fourth
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`geographical locality are segments among the first and second paths, respectively, that are not
`
`included in the other paths. For instance, the location marked in green is included in the second
`
`path, but not in the first path.
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`44.
`
`As recited in another step of Claim 13 of the ‘238 Patent, the accused product
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`discloses identifying, by the processor (e.g., the processor of the smartphone), a path (e.g., first
`
`path) between the first geographical locality (e.g., First Locality) and the second geographical
`
`locality (e.g., Second Locality) based at least in part on a popularity rating for the third
`
`geographical locality and a popularity rating for the fourth geographical locality.
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`45.
`
`As shown in Exhibit C, the accused product identifies the popularity of different
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`geographical localities between first geographical location and second geographical location and
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`suggests the popular one.
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`46.
`
`The elements described in the preceding paragraphs are covered by at least Claim
`
`13 of the ‘238 Patent. Thus, Defendant’s use of the Accused Product is enabled by the method
`
`described in the ‘238 Patent.
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`47.
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`As recited in Claim 1 of the ‘833 Patent the accused product discloses a computer-
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`readable memory (e.g., the memory of a smartphone) storing content (e.g., location information)
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`that, when executed by a computing system (e.g., Runkeeper’s computing system) having a
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`processor (e.g., the processor of the smartphone), cause the computing system (e.g., Runkeeper’s
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`computing system) to perform a method comprising: receiving an indication of a first geographical
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`locality (e.g., First Locality), a second geographical locality (e.g., Second Locality), a third
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`geographical locality, and a fourth geographical locality. Third and fourth geographical locality
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`are segments among the first and second paths, respectively, that are not included in the other paths
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`See Ex. D.
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`48.
`
`As recited in another step of Claim 1 of the ‘833 Patent, the accused product
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`discloses determining a first path (e.g., highlighted in blue) between the first geographical locality
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`(e.g., First Locality) and the second geographical locality (e.g., Second Locality), wherein the first
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`path (e.g., highlighted in blue) includes the third geographical locality but does not include the
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`fourth geographical locality.
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`49.
`
`As shown in Exhibit D, third geographical and fourth geographical localities are
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`different possible routes such as direct freehand route and popular route. Also, third and fourth
`
`geographical locality are segments among the first and second paths, respectively, that are not
`
`included in the other paths. For instance, the location marked in green is included in the second
`
`path, but not in the first path.
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`50.
`
`As recited in another step of Claim 1 of the ‘833 Patent, the accused product
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`discloses determining a second path (e.g., highlighted in green) between the first geographical
`
`locality (e.g., First Locality) and the second geographical locality (e.g., Second Locality), wherein
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`the second path (e.g., highlighted in green) includes the fourth geographical locality but does not
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`include the third geographical locality.
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`51.
`
`As shown Exhibit D, third geographical and fourth geographical localities are
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`different possible routes such as direct freehand route and popular route. Also, third and fourth
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`
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`13
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`geographical locality are segments among the first and second paths, respectively, that are not
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`included in the other paths. For instance, the location marked in green is included in the second
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`path, but not in the first path.
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`52.
`
`As recited in another step of Claim 1 of the ‘833 Patent, the accused product
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`discloses selecting, by the processor (e.g., the processor of the smartphone), one of the determined
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`paths (e.g., selected path i.e. first path) between the first geographical locality (e.g., First Locality)
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`and the second geographical locality (e.g., Second Locality) based at least in part on a popularity
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`rating for the third geographical locality and a popularity rating for the fourth geographical locality.
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`53.
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`As shown in Exhibit D, the accused product identifies the popularity of different
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`geographical locality between first geographical location and second geographical location on
`
`various routes and suggests the most popular one.
`
`54.
`
`As recited in Claim 7 of the ‘833 Patent, the selected path is rendered by the aid of
`
`the processor of the smartphone. See Ex. D.
`
`55.
`
`As recited in Claim 16 of the ‘833 Patent the accused product discloses a computing
`
`system (e.g., Runkeeper’s system) comprising: a component configured to receive (e.g., receiver
`
`of the smartphone) an indication of a first geographical locality (e.g., First Locality), a second
`
`geographical locality (e.g., Second Locality), a third geographical locality, and a fourth
`
`geographical locality. Third and fourth geographical locality are segments among the first and
`
`second paths, respectively, that are not included in the other paths. See Ex. D.
`
`56.
`
`As recited in another element of Claim 16 of the ‘833 Patent, The accused product
`
`discloses a component (e.g., server associated with Runkeeper) configured to determine a
`
`popularity rating for the third geographical locality. The accused product identifies the popularity
`
`
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`of different geographical locality between first geographical location and second geographical
`
`location on various routes and suggests the most popular one. See Ex. D.
`
`57.
`
`As recited in another element of Claim 16 of the ‘833 Patent, The accused product
`
`discloses determining a component (e.g., server associated with Runkeeper) configured to
`
`determine a popularity rating for the fourth geographical locality. The accused product identifies
`
`the popularity of different geographical locality between first geographical location and second
`
`geographical location on various routes and suggests the most popular one. See Ex. D.
`
`58.
`
`As recited in another element of Claim 16 of the ‘833 Patent, The accused product
`
`discloses a component (e.g., server associated with Runkeeper) configured to determine a path
`
`(e.g., selected path i.e. first path) between the first geographical locality (e.g., First Locality) and
`
`the second geographical locality (e.g., Second Locality) based at least in part on a popularity rating
`
`for the third geographical locality and the popularity rating for the fourth geographical locality.
`
`The accused product identifies the popularity of different geographical locality between first
`
`geographical location and second geographical location on various routes and suggests the most
`
`popular one. See Ex. D.
`
`59.
`
`As recited in Claim 20 of the ‘833 Patent, the selected path is rendered by the aid
`
`of the processor of the smartphone. See Ex. D.
`
`INFRINGEMENT OF THE PATENT-IN-SUIT
`
`60.
`
`Plaintiff realleges and incorporates by reference all of the allegations set forth in
`
`the preceding paragraphs
`
`61.
`
` In violation of 35 U.S.C. § 271, Defendant is now, and has been directly infringing
`
`the ‘238 Patent and/or the ‘833 Patent.
`
`
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`Case: 1:20-cv-00578-MWM Doc #: 1 Filed: 07/24/20 Page: 16 of 18 PAGEID #: 16
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`62.
`
`Defendant has had knowledge of infringement of the ‘238 Patent and/or the ‘833
`
`Patent at least as of the service of the present Complaint.
`
`63.
`
` Defendant has directly infringed and continues to directly infringe at least one
`
`claim of the ‘238 Patent and/or the ‘833 Patent by using, at least through internal testing or
`
`otherwise, the Accused Product without authority in the United States, and will continue to do so
`
`unless enjoined by this Court. As a direct and proximate result of Defendant’s direct infringement
`
`of the ‘238 Patent and/or the ‘833 Patent, Plaintiff has been and continues to be damaged.
`
`64.
`
`Defendant has induced others to infringe the ‘the ‘238 Patent and/or the ‘833 Patent
`
`by encouraging infringement, knowing that the acts Defendant induced constituted patent
`
`infringement, and its encouraging acts actually resulted in direct patent infringement.
`
`65.
`
`By engaging in the conduct described herein, Defendant has injured Plaintiff and is
`
`thus liable for infringement of the ‘238 Patent and/or the ‘833 Patent, pursuant to 35 U.S.C. § 271.
`
`66.
`
`Defendant has committed these acts of infringement without license or
`
`authorization.
`
`67.
`
`As a result of Defendant’s infringement of the ‘238 Patent and/or the ‘833 Patent,
`
`Plaintiff has suffered monetary damages and is entitled to a monetary judgment in an amount
`
`adequate to compensate for Defendant’s past infringement, together with interests and costs.
`
`68.
`
`Plaintiff will continue to suffer damages in the future unless Defendant’s infringing
`
`activities are enjoined by this Court. As such, Plaintiff is entitled to compensation for any
`
`continuing and/or future infringement up until the date that Defendant is finally and permanently
`
`enjoined from further infringement.
`
`69.
`
`Plaintiff reserves the right to modify its infringement theories as discovery
`
`progresses in this case; it shall not be estopped for infringement contention or claim construction
`
`
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`purposes by the claim charts that it provides with this Complaint. The claim chart depicted in
`
`Exhibit B is intended to satisfy the notice requirements of Rule 8(a)(2) of the Federal Rule of Civil
`
`Procedure and does not represent Plaintiff’s preliminary or final infringement contentions or
`
`preliminary or final claim construction positions.
`
`DEMAND FOR JURY TRIAL
`
`70.
`
`Plaintiff demands a trial by jury of any and all causes of action.
`
`
`
`WHEREFORE, Plaintiff prays for the following relief:
`
`PRAYER FOR RELIEF
`
`a. That Defendant be adjudged to have directly infringed the ‘238 Patent and/or the ‘833
`
`Patent either literally or under the doctrine of equivalents;
`
`b. An accounting of all infringing sales and damages including, but not limited to, those
`
`sales and damages not presented at trial;
`
`c. That Defendant, its officers, directors, agents, servants, employees, attorneys, affiliates,
`
`divisions, branches, parents, and those persons in active concert or participation with any of them,
`
`be permanently restrained and enjoined from directly infringing the ‘238 Patent and/or the ‘833
`
`Patent;
`
`d. An award of damages pursuant to 35 U.S.C. §284 sufficient to compensate Plaintiff for
`
`the Defendant’s past infringement and any contin