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Case 2:22-cv-00173-JRG-RSP Document 1 Filed 05/24/22 Page 1 of 23 PageID #: 1
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`
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`Case No. 2:22-cv-00173
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`Jury Trial Demanded
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`Decapolis Systems, LLC,
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`Plaintiff,
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` v.
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`Texas Retina Associates and Surgery
`Partners, Inc.,
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`
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`Defendants.
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`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Decapolis Systems, LLC (“Plaintiff”) hereby files this Original Complaint for Patent
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`Infringement against Texas Retina Associates (“TRA”) and Surgery Partners, Inc. (“SPI,” and
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`collectively, “Defendants”), and alleges, upon information and belief, as follows:
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`THE PARTIES
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`1.
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`Decapolis Systems, LLC is a limited liability company organized and existing under the laws
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`of the State of Florida with its principal place of business at: Decapolis Systems, LLC, 600 S.
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`Dixie Hwy, #605, West Palm Beach, Florida 33401.
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`2.
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`Upon information and belief, Defendant Texas Retina Associates is a professional
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`association organized and existing under the laws of the State of Texas with its principal
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`place of business at 9600 N Central Expressway, Suite 100, Dallas, Texas 75231. On
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`information and belief, Defendant may be served through its registered agent in the State of
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`Texas: Jefferey T. Brockette at 9600 N. Central Expwy., Ste. 100, Dallas, Texas 75231.
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`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`3.
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`Upon information and belief, Surgery Partners, Inc. is a domestic corporation organized and
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`existing under the laws of Texas, with a principal place of business located at 40 Burton Hills
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`Blvd, Suite 500, Nashville, Tennessee 37215. SPI may be served through its registered agent
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`in the State of Texas, which is Corporation Service Company d/b/a CSC-Lawyers
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`Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701.
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`JURISDICTION AND VENUE
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`4.
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`5.
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`This Court has subject matter jurisdiction over this case under 28 U.S.C. §§ 1331 and 1338.
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`This Court has personal jurisdiction over Defendants. Defendants have continuous and
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`systematic business contacts with the State of Texas. Defendants transact business within
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`this District and elsewhere in the State of Texas and has appointed an agent for service of
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`process in Texas. Further, this Court has personal jurisdiction over Defendants based on their
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`commission of one or more acts of infringement of Decapolis’ Patents in this District and
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`elsewhere in the State of Texas.
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`6.
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`Defendants directly conduct business extensively throughout the State of Texas, by
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`distributing, making, using, offering for sale, selling, and advertising (including the provision
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`of interactive web pages; the provision and support of physician networks; the provision and
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`support of customer accounts; and further including maintaining physical facilities) its
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`services in the State of Texas and in this District. Defendants have purposefully and
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`voluntarily made their business services, including the infringing systems and services,
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`available to residents of this District and into the stream of commerce with the intention and
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`expectation that they will be purchased and/or used by consumers in this District. On
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`information and belief, Defendants are providers of: (i) health services, (ii) billing services;
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`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`(iii) physician and hospital account services; and/or (iv) patient records in electronic format,
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`throughout the United States.
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`7.
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`On information and belief, Defendants maintain physical brick-and-mortar business locations
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`in the State of Texas and within this District, retain employees specifically in this District for
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`the purpose of servicing customers in this District, and generate substantial revenues from
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`their business activities in this District.
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`8.
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`Venue is proper in the Eastern District of Texas as to Defendants pursuant to at least 28
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`U.S.C. §§ 1391(c)(2) and 1400(b). As noted above, Defendants maintain regular and
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`established business presences in this District.
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`PATENTS-IN-SUIT
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`9.
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`Plaintiff is the sole and exclusive owner, by assignment, of U.S. Patents 7,464,040 and
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`7,490,048 (hereinafter collectively referred to as “the Decapolis Patents”).
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`10.
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`By written instruments duly filed with the United States Patent and Trademark Office,
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`Decapolis is assigned all rights, title, and interest in the Decapolis Patents. Id. Such
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`Assignments are recorded in the records of the United States Patent and Trademark Office at
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`Reel 055516 and Frame 0027. As such, Plaintiff Decapolis Systems, LLC has sole and
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`exclusive standing to assert the Decapolis Patents and to bring these causes of action.
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`11.
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`The Decapolis Patents are valid, enforceable, and were duly issued in full compliance with
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`Title 35 of the United States Code.
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`12.
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`Raymond A. Joao is the sole named inventor for the Decapolis Patents.
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`13. Mr. Joao is a pioneering inventor. The Decapolis Patents represent substantial technological
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`advancements in the medical billing services industry, which were unconventional at the time
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`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`of invention. Indeed, the Decapolis Patents have been back-cited in patents issued to well-
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`known industry leaders, including: IBM, Siemens AG, Walgreens, McKesson, and Sony.
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`14.
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`Additional companies have benefited from, and been provided notice through, their back-
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`citations to the Decapolis Patents, including: Atirix Medical Systems, Inc.; IBM Corp.; Bard
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`Peripheral Vascular, Inc.; General Electric Company; C.R. Bard, Inc.; Healthunity Corp.,
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`Epic Systems Corp.; Accelere, Inc.; Align Technology, Inc.; Siemens Aktiengesellschaft;
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`Vital Data Technology, LLC; Hospira, Inc.; Medical Present Value, Inc.; PSYWARE GmbH;
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`ICU Medical, Inc.; Elwha LLC; Advanced Healthcare Systems, Inc.; Quality Standards,
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`LLC; Therap Services, LLC; and Devicor Medical Products, Inc.
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`15.
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`The Decapolis Patents each include numerous claims defining distinct inventions. No single
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`claim is representative of any other.
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`16.
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`The priority date of each of the Decapolis Patents is at least as early as December 18, 1999.
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`As of the priority date, the inventions as claimed were novel, non-obvious, unconventional,
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`and non-routine. Indeed, the Decapolis Patents overcame a number of specific technological
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`problems in the industry and provided specific technological solutions.
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`17.
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`By way of example, as of the date of invention, “Doctors or providers may base their
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`diagnoses and/or treatments, [relying on] patients who usually supply this information on
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`questionnaires or forms just prior to seeing the healthcare provider and/or during a
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`preliminary interview with the provider.” See U.S. Patent No. 7,464,040, Col. 1, ll. 52-6. As
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`a result, the “information obtained from these questionnaires or forms, as well as from these
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`preliminary interviews with the providers, may not necessarily result in sufficient,
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`comprehensive, and/or accurate, information being obtained regarding the patient.” Id.,
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`Col.1, ll. 56-60. Further, as of the date of invention: “there is no guarantee that the same
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`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`[patient medical history] information will be provided, in a uniform manner, to a next or
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`different provider. As a result, patient information may not be uniformly distributed and/or
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`be available to providers at the point of treatment and/or otherwise.” Id. “Another problem
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`which exists in the current healthcare system is that doctors or other providers do not always
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`have the latest information and/or research material available to them prior to, and/or during,
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`the diagnosis and/or treatment process.” Id., Col. 1, ll. 60-5.
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`18.
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`Further, at the time of the invention, it had “been estimated that between 44,000 and 98,000
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`individuals die in the United States alone, as the result of errors or mistakes made by doctors,
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`healthcare providers, and/or healthcare facility workers. There is no doubt that many of these
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`deaths result from inaccurate and/or erroneous information and/or the lack of the availability
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`of correct and/or up-to-date information.” Id., Col. 1, ll. 43-49.
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`19.
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`The Decapolis Patents overcame these technological problems by a method or apparatus
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`wherein a “medical doctor will transmit [a] final diagnosis and treatment plan…to [a] central
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`processing computer” and wherein “the central processing computer [sic] will then update
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`the patient's records in the database [sic] so as to include all of the data and information
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`described as being processed and/or generated by the central processing computer [sic],
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`including, but not limited to the patient's symptoms, if any, the examination findings, the
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`information contained in the diagnostic report and the treatment report, the final diagnosis
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`and the prescribed treatment. Thereafter, operation [sic] will cease [sic]. The patient's records
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`will then be updated and be available for the patient's next treatment and/or diagnosis.” Id.,
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`Cols. 28, ll. 66-7 and Col. 29, ll. 10-2.
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`20.
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`The claims of the Decapolis Patents are patent eligible under 35 U.S.C. § 101, 102, 103, and
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`112, as reflected by the fact that three different Patent Examiners all agreed and allowed the
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`Decapolis Patents over extensive prior art as disclosed and of record during the prosecution
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`of the Decapolis Patents. See Stone Basket Innov. v. Cook Medical, 892 F.3d 1175, 1179
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`(Fed. Cir. 2018) (“when prior art is listed on the face of a patent, the examiner is presumed to
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`have considered it”) (citing Shire LLC v. Amneal Pharm., LLC, 802 F.3d 1301, 1307 (Fed.
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`Cir. 2015)); Exmark Mfg. v. Briggs & Stratton, 879 F.3d 1332, 1342 (Fed. Cir. 2018).
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`21. Moreover, any arguments relating to eligibility as may be made by Defendant here are
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`necessarily merely cumulative with those already considered, and rejected, by the Patent
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`Examiners in allowing the Decapolis Patents. See, e.g., Technology Licensing Corp. v.
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`Videotek, Inc., 545 F.3d 1316, 1337 (Fed. Cir. 2008); Stone Basket, 892 F.3d at 1179.
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`22.
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`As further evidence of the unconventionality of the technological solutions captured in the
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`claims of the Decapolis Patents as of 1999, the United States of America, Department of the
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`Army even cites to the Decapolis Patents.
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`23.
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`24.
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`As noted, the claims of the Decapolis Patents have priority to at least December 18, 1999.
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`The claims of the Decapolis Patents are not drawn to laws of nature, natural phenomena, or
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`abstract ideas. Although the systems and methods claimed in the Asserted Patents are
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`ubiquitous now (and, as a result, are widely infringed), the specific combinations of
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`elements, as recited in the claims, were not conventional or routine at the time of the
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`invention.
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`25.
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`Further, the claims of the Decapolis Patents contain inventive concepts. Even if a court ruled
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`the underlying aspects to be abstract, the inventive concepts disclosed in sufficient detail
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`would transform the claims into patent-eligible subject matter.
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`26.
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`The claims of the Decapolis Patents were investigated by the Patent Examiners in fields
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`exactly relevant to the patented inventions.
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`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`27. More specifically, the Patent Examiners performed for patent eligibility, including novelty,
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`an analysis of the claims of the Decapolis Patents in at least the 600/300 (Diagnostic
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`Testing), 705/2-4 (Health care management; Healthcare record management; and Patient
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`record management), and 715/530 (Data Processing)
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`28.
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`As further evidence of the inventive nature of the inventions claimed in the Decapolis
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`Patents, the Decapolis Patents each had at least 135 citations before being issued as valid and
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`enforceable patents.
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`29.
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`After giving full proper credit to the prior art and having conducted a thorough search for all
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`relevant art and having fully considered the most relevant art known at the time, the United
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`States Patent Examiners allowed all of the claims of the Decapolis Patents to issue. In so
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`doing, it is presumed that Examiners used their knowledge of the art when examining the
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`claims. See K/S Himpp v. Hear-Wear Techs., LLC, 751 F.3d 1362, 1369 (Fed. Cir. 2014). It
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`is further presumed that Patent Examiners had experience in the field of the invention, and
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`that the Patent Examiners properly acted in accordance with a person of ordinary skill. In re
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`Sang Su Lee, 277 F.3d 1338, 1345 (Fed. Cir. 2002).
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`30.
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`The claims of the Decapolis Patents are novel and non-obvious, including over all non-cited
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`art that is merely cumulative with the referenced and cited prior art. See 37 C.F.R. § 1.56(b)
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`(information is material to patentability when it is not cumulative to information already of
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`record in the application); see also AbbVie Deutschland GmbH v. Janssen Biotech, 759 F.3d
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`1285, 1304 (Fed. Cir. 2014); In re DBC, 545 F.3d 1373, 1382 (Fed. Cir. 2008). Likewise,
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`the claims of the Decapolis Patents are novel and non-obvious, including over all non-cited
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`contemporaneous state of the art systems and methods, all of which would have been known
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`to a person of ordinary skill in the art, and which were therefore presumptively also known
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`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`and considered by the Examiners. See, e.g., St. Clair I.P. Consultants v. Canon, Inc., 2011
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`WL 66166 at *6 (Fed. Cir. 2011); In re Sang Su Lee, 277 F.3d 1338, 1345 (Fed. Cir. 2002);
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`In re Koninklijke Philips Patent Litigation, 2020 WL 7392868 at *19 (N.D. Cal. 2020);
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`Standard Oil v. American Cyanamid, 774 F.2d 448, 454 (Fed. Cir. 1985) (persons of ordinary
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`skill are presumed to be aware of all pertinent prior art).
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`31.
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`The claims of the Decapolis Patents were all properly issued, and are valid and enforceable
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`for the respective terms of their statutory life through expiration, and are enforceable for
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`purposes of seeking damages for past infringement even post-expiration. See, e.g., Genetics
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`Institute, LLC v. Novartis Vaccines and Diagnostics, Inc., 655 F.3d 1291, 1299 (Fed. Cir.
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`2011) (“[A]n expired patent is not viewed as having ‘never existed.’ Much to the contrary, a
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`patent does have value beyond its expiration date. For example, an expired patent may form
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`the basis of an action for past damages subject to the six-year limitation under 35 U.S.C. §
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`286.”) (internal citations omitted).
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`THE ACCUSED INSTRUMENTALITIES
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`Upon information and belief, TRA makes, sells, advertises, offers for sale, uses, or otherwise
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`32.
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`provides a plurality of electronic healthcare systems, platforms and services, including but
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`not limited to NextGen cloud-based electronic health records (“EHR”) and practice
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`management system and software for patients, payers, health registries, and insurers. TRA
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`offers, among other things, a cloud database and framework to receive and send data and
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`messages, fill orders, manage patient care, referrals, admissions, scheduling, check-in, e-
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`prescriptions, discharge, billing, accounting, collections, security, payroll, materials
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`management, practice analytics, revenue management, and reporting. It includes features as
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`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`shown below in Figure 1, including all augmentations to these platforms or descriptions of
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`platforms.
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`
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`Figure 1 – Screenshot of TRA’s web portal for its use of NextGen’s EHR system and its features as
`visited on May 24, 2022 and located at https://www.texasretina.com/patient-portal and
`https://www.nextmd.com/ud2/Login/Login.aspx.
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`33.
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`Upon information and belief, SPI makes, sells, advertises, offers for sale, uses, or otherwise
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`provides a plurality of electronic healthcare systems, platforms and services, including but
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`not limited to NextGen’s cloud-based electronic health records (“EHR”) and practice
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`management system and software for patients, payers, health registries, and insurers. SPI
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`offers, among other things, a cloud database and framework to receive and send data and
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`messages, fill orders, manage patient care, referrals, admissions, scheduling, check-in, e-
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`prescriptions, discharge, billing, accounting, collections, security, payroll, materials
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`management, practice analytics, revenue management, and reporting. It includes features as
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`shown below in Figure 2, including all augmentations to these platforms or descriptions of
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`platforms.
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`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Figure 2 – Screenshot of Featured Customers’ webpage for SPI’s use of NextGen’s EHR system
`and its features as visited on May 24, 2022 and located at
`https://www.featuredcustomers.com/vendor/nextgen-
`healthcare/customers#https://cdn.featuredcustomers.com/Company.logo_medium/ng-logo-980x400-
`color_FC_GH3SYfO.png.
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`34.
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`Collectively, all the foregoing is referred to herein as the “Accused instrumentalities.”
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`35.
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`36.
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`COUNT I
`Infringement of U.S. Patent No. 7,490,048
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`Plaintiff incorporates the above paragraphs by reference.
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`Defendants have been on actual notice of the ’048 Patent at least as early as the date it
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`received service of the Original Complaint in this litigation.
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`37.
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`The damages period begins at least as early as six years prior to the date of service of the
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`Original Complaint in this litigation.
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`38.
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`Upon information and belief, Defendants own, direct, and/or control the operation of the
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`Accused Instrumentalities and generates substantial financial revenues and benefits
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`therefrom.
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`39.
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`Upon information and belief, Defendants have directly infringed and continue to directly
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`infringe at least Claims 1, 2, 10, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36,
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`37, 38, 39, and 40 of the ’048 Patent. As exemplary, Claim 20 is by making, using,
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`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`importing, selling, and/or offering for sale the Accused Instrumentalities. Defendants
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`directly make the infringing Accused Instrumentalities at least because they are solely
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`responsible for putting the infringing systems into service by directing or controlling the
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`systems as a whole and by obtaining the benefits therefrom. More specifically, and on
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`information and belief, with respect to the Accused Instrumentalities, Defendants: (i)
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`executed contracts with third party servicers for the provision of archival services and
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`databases for healthcare and related records and/or designed and assembled such archival
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`services and databases using its own employees and/or contractors; (ii) developed, own, and
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`maintain digital storage archives for healthcare and related records; (iii) provide access to
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`such records via its own branded Internet domains and/or software applications using its own
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`name and business trade dress; (iv) exercise authority over the provision of such record
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`archival services and databases; (v) openly advertise and promote such record archival
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`services and databases bearing its name and business trade dress to customers in the United
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`States; (vi) authored or commissioned the preparation of computer code for accessing and
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`retrieving stored and/or archived healthcare records via its Internet domain web pages and/or
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`software applications; (vii) claim ownership and control over such stored and/or archived
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`healthcare records by virtue of its corporate branding and the provision of direct access; and
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`(viii) receive monetary benefits from the provision of such healthcare records storage,
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`archival, and retrieval services to customers.
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`40.
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`Further on information and belief, Defendants directly use the infringing Accused
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`Instrumentalities at least because they assembled the combined infringing elements and
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`makes them collectively available in the United States, including via their Internet domain
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`web pages and/or software applications, as well as via its internal systems and interfaces.
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`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Further, and on information and belief, Defendants have directly infringed by using the
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`infringing Accused Instrumentalities as part of its ongoing and regular testing and/or internal
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`legal compliance activities. Such testing and/or legal compliance necessarily requires
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`Defendants to make and use the Accused Instrumentalities in an infringing manner. Still
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`further, Defendants are direct infringers by virtue of their branding and marketing activities,
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`which collectively comprise the sale and offering for sale of the infringing Accused
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`Instrumentalities.
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`41. More specifically, and on information and belief, Defendants are making, using, and offering
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`for sale a computer-implemented method, identified as the Accused Instrumentalities,
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`comprising: receiving information regarding a restriction or limitation regarding an ability of
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`a person or an entity to at least one of access, obtain, change, alter, and modify, information
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`contained in an individuals or patients healthcare record or an individual’s or patients
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`healthcare file, wherein the individuals or patient’s healthcare record or the individuals or
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`patient’s healthcare file contains healthcare information or healthcare-related information
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`personal to the individual or patient.
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`42.
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`As Figures 1-5 shows above, Defendants are making, using, and offering for sale a computer-
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`implemented method and apparatus, identified as the Accused Instrumentalities.
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`43.
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`Additionally, the Accused Instrumentalities are specially configured such that they perform a
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`method wherein the restriction or limitation contains information regarding at least one of a
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`healthcare provider, a healthcare payer, a healthcare insurer, and an authorized entity, and
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`information regarding a designated purpose for allowing each of the at least one of a
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`healthcare provider, a healthcare payer, a healthcare insurer, and an authorized entity, to at
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`least one of access, obtain, change, alter, and modify, the information contained in an
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`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`individuals or patients healthcare record or an individual’s or patient’s healthcare file,
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`wherein the designated purpose is at least one of to perform a diagnosis, to perform a
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`diagnosis for a certain ailment, illness, or symptom, to provide a second opinion, to verify or
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`disprove a condition or a pre-existing condition, to submit an insurance claim, and to process
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`an insurance claim.
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`44.
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`Defendants’ infringing methods each separately, are storing the information regarding a
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`restriction or limitation regarding an ability of a person or an entity to at least one of access,
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`obtain, change, alter, and modify, the information contained in an individuals or patient’s
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`healthcare record or an individual’s or patient’s healthcare file; processing, with a processor,
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`a request by a person or an entity to at least one of access, obtain, change, alter, and modify,
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`the information contained in an individuals or patient’s healthcare record or an individual’s
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`or patient’s healthcare file; determining, using the information regarding the restriction or
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`limitation, whether the person or the entity is allowed or authorized to at least one of access,
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`obtain, change, alter, and modify, the information contained in an individual’s or patient’s
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`healthcare record or an individuals or patient’s healthcare file; generating a message
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`containing at least one of information regarding the person or the entity making the request,
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`and identification information regarding the person or the entity making the request, and
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`further wherein the message contains an actual change, alteration, or modification, made to
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`the information contained in an individual’s or patients healthcare record or an individuals or
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`patient’s healthcare file; and transmitting the message to a communication device of the
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`individual or patient via, on, or over, a communication network.
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`45.
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`Additionally, upon information and belief, Defendants own, direct, and/or control the
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`infringing method operation of the Accused Instrumentalities that includes wherein the
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`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`message is transmitted to the communication device of the individual or patient at least one
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`of during, concurrently with, at a same time as, and prior to a completion of an at least one of
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`an accessing, an obtaining, a changing, an altering, and a modifying, of the information
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`contained in an individuals or patient’s healthcare record or an individual’s or patients
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`healthcare file by the person or the entity, or at least one of during, concurrently with, at a
`
`same time as, and prior to a completion of a processing of the request to at least one of
`
`access, obtain, change, alter, and modify, the information contained in an individuals or
`
`patient’s healthcare record or an individual’s or patient’s health care file.
`
`46.
`
`On information and belief, the infringement of the Decapolis Patents by Defendants will now
`
`be willful through the filing and service of this Complaint.
`
`47.
`
`In addition or in the alternative, Defendants now have knowledge and continue these actions
`
`and indirectly infringe by way of inducing direct infringement by others and/or contributing
`
`to the infringement by others of the ’048 Patent in the State of Texas, in this judicial district,
`
`and elsewhere in the United States, by, among other things, making, using, importing,
`
`offering for sale, and/or selling, without license or authority, infringing services for use in
`
`systems that fall within the scope of at least Claims 1, 2, 10, 20, 22, 23, 24, 25, 26, 27, 28,
`
`29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, and 40 of the ’048 Patent. This includes without
`
`limitation, one or more of the Accused Instrumentalities by making, using, importing
`
`offering for sale, and/or selling such services, Defendants injured Decapolis and is thus liable
`
`to Decapolis for infringement of the ’048 Patent under 35 U.S.C. § 271.
`
`48.
`
`Now with knowledge of the Decapolis Patents, Defendants induce infringement under Title
`
`35 U.S.C. § 271(b). Defendants will have performed actions that induced infringing acts that
`
`Defendants knew or should have known would induce actual infringements. See Manville
`
`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
`
`
`
`14
`
`

`

`Case 2:22-cv-00173-JRG-RSP Document 1 Filed 05/24/22 Page 15 of 23 PageID #: 15
`
`Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544, 553 (Fed.Cir.1990), quoted in DSU Med.
`
`Corp. v. JMS Co., 471 F.3d 1293, 1306 (Fed.Cir.2006) (en banc in relevant part). “[A]
`
`finding of inducement requires a threshold finding of direct infringement—either a finding of
`
`specific instances of direct infringement or a finding that the accused products necessarily
`
`infringe.” Ricoh, 550 F.3d at 1341 (citing ACCO Brands, Inc. v. ABA Locks Manufacturer
`
`Co., 501 F.3d 1307, 1313, (Fed. Cir. 2007).
`
`49.
`
`Plaintiff will rely on direct and/or circumstantial evidence to prove the intent element. See
`
`Fuji Photo Film Co. v. Jazz Photo Corp., 394 F.3d 1368, 1377 (Fed. Cir. 2005) (“A patentee
`
`may prove intent through circumstantial evidence.”); Water Techs. Corp. v. Calco, Ltd., 850
`
`F.2d 660, 668 (Fed. Cir. 1988) (“While proof of intent is necessary, direct evidence is not
`
`required; rather, circumstantial evidence may suffice.”).
`
`50.
`
`Defendants have taken active steps to induce infringement, such as advertising an infringing
`
`use, which supports a finding of an intention for the accused product to be used in an
`
`infringing manner. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913,
`
`932, 125 S. Ct. 2764, 162 L. Ed. 2d 781 (2005) (explaining that the contributory
`
`infringement doctrine “was devised to identify instances in which it may be presumed from
`
`distribution of an article in commerce that the distributor intended the article to be used to
`
`infringe another’s patent, and so may justly be held liable for that infringement”).
`
`51.
`
`In addition, on information and belief, and based in part upon the clear infringement by the
`
`Accused Instrumentalities, Defendants have a practice of not performing a review of the
`
`patent rights of others first for clearance or to assess infringement thereof prior to launching
`
`products and services. As such, Defendants have been willfully blind to the patent rights of
`
`Plaintiff.
`
`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
`
`
`
`15
`
`

`

`Case 2:22-cv-00173-JRG-RSP Document 1 Filed 05/24/22 Page 16 of 23 PageID #: 16
`
`52.
`
`The foregoing infringement on the part of Defendants have caused past and ongoing injury to
`
`Plaintiff. The specific dollar amount of damages adequate to compensate for the
`
`infringement shall be determined at trial but is in no event less than a reasonable royalty from
`
`the date of first infringement to the expiration of the Decapolis Patents.
`
`53.
`
`Each of Defendants’ aforesaid activities have been without authority and/or license from
`
`Plaintiff.
`
`COUNT II
`Infringement of U.S. Patent No. 7,464,040
`
`Plaintiff incorporates the above paragraphs by reference.
`
`Defendants have been on actual notice of the ’040 Patent at least as early as the date it
`
`received service of the Original Complaint in this litigation.
`
`54.
`
`55.
`
`56.
`
`The infringement damages period begins at least as early as six years prior to the date of
`
`service of the Original Complaint in this litigation.
`
`57.
`
`The ’040 patent application claims the benefit of priority of U.S. Provisional Patent
`
`Application Ser. No. 60/286,422, filed April 25, 2001, titled “APPARATUS AND
`
`METHOD FOR PROCESSING AND/OR FOR PROVIDING HEALTH CARE
`
`INFORMATION AND/OR HEALTHCARE-RELATED INFORMATION,” the subject
`
`matter and teachings of which are hereby incorporated by reference herein.
`
`58.
`
`Upon information and belief, Defendants own, direct, and/or control the operation of the
`
`Accused Instrumentalities and generates substantial financial revenues and benefits
`
`therefrom.
`
`59.
`
`Upon information and belief, Defendants have directly infringed and continue to directly
`
`infringe at least Claims 1 and 46 of the ’040 Patent by making, using, importing, selling,
`
`and/or offering for sale the Accused Instrumentalities. Defendants directly make the
`
`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
`
`
`
`16
`
`

`

`Case 2:22-cv-00173-JRG-RSP Document 1 Filed 05/24/22 Page 17 of 23 PageID #: 17
`
`infringing Accused Instrumentalities at least because it is solely responsible for putting the
`
`infringing systems into service by directing or controlling the systems as a whole and by
`
`obtaining the benefits therefrom. More specifically, and on information and belief, with
`
`respect to the Accused Instrumentalities, Defendants: (i) executed contracts with third party
`
`servicers for the provision of archival services and databases for healthcare and related
`
`records and/or designed and assembled such archival services and databases using its own
`
`employees and/or contractors; (ii) developed, own, and maintain digital storage archives for
`
`healthcare and related records; (iii) provide access to such records via its own branded
`
`Internet domains and/or so

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