Case 6:20-cv-00369-ADA Document 22 Filed 08/06/20 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`
`PROVEN NETWORKS, LLC.,
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`Case No. 6:20-cv-00369-ADA
`
`
`
`
`
`v.
`
`JURY TRIAL DEMANDED
`
`NETAPP, INC.,
`
`
`
`
`
`
`
`Defendant.
`
`
`
`
`
`
`
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST NETAPP, INC.
`
`This is an action for patent infringement arising under the Patent Laws of the United States
`
`of America, 35 U.S.C. § 1 et seq., in which Plaintiff Proven Networks, LLC (“Plaintiff” or “Proven
`
`Networks”) makes the following allegations against Defendant NetApp, Inc. (“Defendant”):
`
`INTRODUCTION
`
`1.
`
`This complaint arises from Defendant’s unlawful infringement of the following
`
`United States patents owned by Proven Networks, each of which generally relate to data
`
`networking technology: United States Patent Nos. 8,018,852 (“’852 Patent”) and 7,450,507 (“’507
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`Patent”) (collectively, the “Asserted Patents”).
`
`2.
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`The management and optimization of data flow in networking systems is essential
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`in modern society. Not only do computers, smartphones, and home automation devices operating
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`via the Internet generate data traffic, but basic technology such as voice services and file transfers
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`do as well. The enormous increase in multimedia content, such as videos, has greatly increased
`
`data traffic without proportional increases in data bandwidth. One problem caused by the large
`
`consumption of high-bandwidth multimedia content is that more important data, including
`
`
`
`1
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`PROVEN NETWORKS, LLC.,
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`Case No. 6:20-cv-00369-ADA
`
`
`
`
`
`v.
`
`JURY TRIAL DEMANDED
`
`NETAPP, INC.,
`
`
`
`
`
`
`
`Defendant.
`
`
`
`
`
`
`
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST NETAPP, INC.
`
`This is an action for patent infringement arising under the Patent Laws of the United States
`
`of America, 35 U.S.C. § 1 et seq., in which Plaintiff Proven Networks, LLC (“Plaintiff” or “Proven
`
`Networks”) makes the following allegations against Defendant NetApp, Inc. (“Defendant”):
`
`INTRODUCTION
`
`1.
`
`This complaint arises from Defendant’s unlawful infringement of the following
`
`United States patents owned by Proven Networks, each of which generally relate to data
`
`networking technology: United States Patent Nos. 8,018,852 (“’852 Patent”) and 7,450,507 (“’507
`
`Patent”) (collectively, the “Asserted Patents”).
`
`2.
`
`The management and optimization of data flow in networking systems is essential
`
`in modern society. Not only do computers, smartphones, and home automation devices operating
`
`via the Internet generate data traffic, but basic technology such as voice services and file transfers
`
`do as well. The enormous increase in multimedia content, such as videos, has greatly increased
`
`data traffic without proportional increases in data bandwidth. One problem caused by the large
`
`consumption of high-bandwidth multimedia content is that more important data, including
`
`
`
`1
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`Case 6:20-cv-00369-ADA Document 22 Filed 08/06/20 Page 2 of 9
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`relatively low-bandwidth services such as voice services and data transfers (e.g., financial data),
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`can suffer due to lack of bandwidth, resulting in dropped calls and incomplete file transfers.
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`Optimization of data traffic in data networks has become even more important in order to navigate
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`the bandwidth limitations.
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`3.
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`The Asserted Patents address the general problem of network congestion and
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`bandwidth limitations by providing specific techniques to optimize and manage data traffic. The
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`Asserted Patents originated from telecommunications and wireless networking research from
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`Alcatel-Lucent. The inventors were keenly aware of the increase of high-bandwidth applications
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`such as video, especially in wireless and mobile networks, and sought to develop technology to
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`maintain acceptable performance for as many users, for as long as possible, under varying and
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`adverse data traffic conditions.
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`4.
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`For example, the ’852 Patent teaches methods to augment routing decisions in
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`networking equipment by using techniques based on “equal cost” paths to optimize data traffic.
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`The ’507 Patent teaches a rate-limiting hierarchy method to control the bandwidth usage of
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`different classifications of data traffic with provisions for exceeding the designated bandwidth by
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`borrowing excess bandwidth from other classifications of data traffic under configurable
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`conditions.
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`PARTIES
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`5.
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`Plaintiff Proven Networks, LLC is a company organized under the laws of the State
`
`of California. Proven Networks is the sole owner by assignment of all right, title, and interest in
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`each Asserted Patent.
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`2
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`Case 6:20-cv-00369-ADA Document 22 Filed 08/06/20 Page 3 of 9
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`6.
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`On information and belief, Defendant NetApp, Inc. is a corporation organized
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`under the laws of the State of Delaware, with its principal place of business at 1395 Crossman
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`Avenue, Sunnyvale, California 94089.
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`JURISDICTION AND VENUE
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`7.
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`This action arises under the patent laws of the United States, Title 35 of the United
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`States Code. This Court has original subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
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`1338(a).
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`8.
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`This Court has personal jurisdiction over Defendant in this action because
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`Defendant has committed acts within this District giving rise to this action, and has established
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`minimum contacts with this forum such that the exercise of jurisdiction over Defendant would not
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`offend traditional notions of fair play and substantial justice. Defendant, directly and through
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`subsidiaries or intermediaries, has committed and continues to commit acts of infringement in this
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`District by, among other things, making, using, importing, offering to sell, and selling products
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`that infringe the Asserted Patent.
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`9.
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`Venue is proper in this District under 28 U.S.C. § 1400(b). Defendant is registered
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`to do business in Texas, and upon information and belief, Defendant has transacted business in
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`this District and has committed acts of direct and indirect infringement in this District by, among
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`other things, importing, offering to sell, and selling products that infringe the Asserted Patent.
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`Defendant has a regular and established place of business in the District, including corporate
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`offices at 9606 N Mopac Expressway, Austin, Texas 78759.1
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`
`1 See, e.g., Ex. 1 (https://www.mapquest.com/us/texas/netapp-409777953); Ex. 2
`(https://www.b2byellowpages.com/company-information/292954468-netapp.html). NetApp also
`posts job openings for this Austin location. See, e.g., Ex. 3 (https://jobs.netapp.com/job/Austin-
`Technical-Partner-Manager-TX-78759/645440900/).
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`3
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`Case 6:20-cv-00369-ADA Document 22 Filed 08/06/20 Page 4 of 9
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`COUNT I
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`INFRINGEMENT OF U.S. PATENT NO. 8,018,852
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`10.
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`Plaintiff realleges and incorporates by reference the foregoing paragraphs as if fully
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`set forth herein.
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`11.
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`Plaintiff owns by assignment all rights, title, and interest in U.S. Patent No.
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`8,018,852, titled “Equal-Cost Source-Resolved Routing System and Method.” The ’852 Patent
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`was duly and legally issued by the United States Patent and Trademark Office on September 13,
`
`2011. A true and correct copy of the ’852 Patent is attached as Exhibit 4.
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`12.
`
`On information and belief, Defendant makes, uses, offers for sale, sells, and/or
`
`imports certain products (“Accused Products”), such as the NetApp ONTAP operating system and
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`storage and network controllers running the ONTAP operating system, that directly infringe,
`
`literally and/or under the doctrine of equivalents, claims 1–18 of the ’852 Patent.
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`13.
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`As of the filing and service of the Original Complaint, Defendant also knowingly
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`and intentionally induces infringement of claims 1–18 of the ’852 Patent in violation of 35 U.S.C.
`
`§ 271(b). Based on the filing and service of the Original Complaint, Defendant has knowledge of
`
`the ’852 Patent and the infringing nature of the Accused Products. Despite this knowledge of the
`
`’852 Patent, Defendant continues to actively encourage and instruct its customers and end users
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`(for example, through user manuals and online instruction materials on their website) to use the
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`Accused Products in ways that directly infringe the ’852 Patent. Defendant does so knowing and
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`intending that its customers and end users will commit these infringing acts. Defendant also
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`continues to make, use, offer for sale, sell, and/or import the Accused Products, despite its
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`knowledge of the ’852 Patent, thereby specifically intending for and inducing its customers to
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`4
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`Case 6:20-cv-00369-ADA Document 22 Filed 08/06/20 Page 5 of 9
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`
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`infringe the ’852 Patent through the customers’ normal and customary use of the Accused
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`Products.
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`14.
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`The Accused Products satisfy all claim limitations of claims 1–18 of the ’852
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`Patent. A claim chart comparing independent claim 1 of the ’852 Patent to the representative
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`Accused Product, the NetApp ONTAP 9 operating system, is attached as Exhibit 5.
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`15.
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`By making, using, offering for sale, selling and/or importing into the United States
`
`the Accused Products, Defendant has injured Plaintiff and is liable for infringement of the ’852
`
`Patent pursuant to 35 U.S.C. § 271.
`
`16.
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`As a result of Defendant’s infringement of the ’852 Patent, Plaintiff is entitled to
`
`monetary damages in an amount adequate to compensate for Defendant’s infringement, but in no
`
`event less than a reasonable royalty for the use made of the invention by Defendant, together with
`
`interest and costs as fixed by the Court.
`
`COUNT II
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`INFRINGEMENT OF U.S. PATENT NO. 7,450,507
`
`17.
`
`Plaintiff realleges and incorporates by reference the foregoing paragraphs as if fully
`
`set forth herein.
`
`18.
`
`Plaintiff owns by assignment all rights, title, and interest in U.S. Patent No.
`
`7,450,507 titled “Hierarchal Rate-Limiting at a Network Node that Utilizes an Infinity Rate-Limit
`
`Check.” The ’507 Patent was duly and legally issued by the United States Patent and Trademark
`
`Office on November 11, 2008. A true and correct copy of the ’507 Patent is attached as Exhibit 6.
`
`19.
`
`On information and belief, Defendant makes, uses, offers for sale, sells, and/or
`
`imports certain products (“Accused Products”), such as the NetApp ONTAP 9.4 (and later)
`
`operating system and storage and network controllers running the ONTAP 9.4 operating system,
`
`
`
`5
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`Case 6:20-cv-00369-ADA Document 22 Filed 08/06/20 Page 6 of 9
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`that directly infringe, literally and/or under the doctrine of equivalents, claims 1–20 of the ’507
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`Patent.
`
`20.
`
`As of the filing and service of the Original Complaint, Defendant also knowingly
`
`and intentionally induces infringement of claims 1–20 of the ’507 Patent in violation of 35 U.S.C.
`
`§ 271(b). Based on the filing and service of the Original Complaint, Defendant has knowledge of
`
`the ’507 Patent and the infringing nature of the Accused Products. Despite this knowledge of the
`
`’507 Patent, Defendant continues to actively encourage and instruct its customers and end users
`
`(for example, through user manuals and online instruction materials on its website) to use the
`
`Accused Products in ways that directly infringe the ’507 Patent. Defendant does so knowing and
`
`intending that its customers and end users will commit these infringing acts. Defendant also
`
`continues to make, use, offer for sale, sell, and/or import the Accused Products, despite its
`
`knowledge of the ’507 Patent, thereby specifically intending for and inducing its customers to
`
`infringe the ’507 Patent through the customers’ normal and customary use of the Accused
`
`Products.
`
`21.
`
`The Accused Products satisfy all claim limitations of claims 1–20 of the ’507
`
`Patent. A claim chart comparing independent claim 1 of the ’507 Patent to the representative
`
`Accused Product, the NetApp ONTAP 9.4 operating system, is attached as Exhibit 7.
`
`22.
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`By making, using, offering for sale, selling and/or importing into the United States
`
`the Accused Products, Defendant has injured Plaintiff and is liable for infringement of the ’507
`
`Patent pursuant to 35 U.S.C. § 271.
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`23.
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`As a result of Defendant’s infringement of the ’507 Patent, Plaintiff is entitled to
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`monetary damages in an amount adequate to compensate for Defendant’s infringement, but in no
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`6
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`Case 6:20-cv-00369-ADA Document 22 Filed 08/06/20 Page 7 of 9
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`event less than a reasonable royalty for the use made of the invention by Defendant, together with
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`interest and costs as fixed by the Court.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff respectfully requests that this Court enter:
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`a.
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`A judgment in favor of Plaintiff that Defendant has infringed, either literally and/or
`
`under the doctrine of equivalents, the ’852 Patent and ’507 Patent;
`
`b.
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`A judgment and order requiring Defendant to pay Plaintiff its damages, costs,
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`expenses, and pre-judgment and post-judgment interest for Defendant’ infringement of the ’852
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`Patent and ’507 Patent; and
`
`c.
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`A judgment and order requiring Defendant to provide an accounting and to pay
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`supplemental damages to Plaintiff, including without limitation, pre-judgment and post-judgment
`
`interest;
`
`d.
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`A judgment and order finding that this is an exceptional case within the meaning
`
`of 35 U.S.C. § 285 and awarding to Plaintiff its reasonable attorneys’ fees against Defendant; and
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`e.
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`Any and all other relief as the Court may deem appropriate and just under the
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`circumstances.
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`DEMAND FOR JURY TRIAL
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`Plaintiff, under Rule 38 of the Federal Rules of Civil Procedure, requests a trial by jury of
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`any issues so triable by right.
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`7
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`Case 6:20-cv-00369-ADA Document 22 Filed 08/06/20 Page 8 of 9
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`Dated: August 6, 2020
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`Respectfully submitted,
`
`/s/ Reza Mirzaie
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`
`Reza Mirzaie (CA SBN 246953)
`rmirzaie@raklaw.com
`Marc A. Fenster (CA SBN 181067)
`Email: mfenster@raklaw.com
`Brian D. Ledahl (CA SBN 186579)
`Email: bledahl@raklaw.com
`Benjamin T. Wang (CA SBN 228712)
`Email: bwang@raklaw.com
`Paul A. Kroeger (CA SBN 229074)
`Email: pkroeger@raklaw.com
`Kent N. Shum (CA SBN 259189)
`kshum@raklaw.com
`Jonathan Ma (CA SBN 312773)
`jma@raklaw.com
`RUSS AUGUST & KABAT
`12424 Wilshire Blvd. 12th Floor
`Los Angeles, CA 90025
`Phone: (310) 826-7474
`
`Attorneys for Plaintiff Proven Networks, LLC
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`8
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`Case 6:20-cv-00369-ADA Document 22 Filed 08/06/20 Page 9 of 9
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`CERTIFICATE OF SERVICE
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`I certify
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`that on August 6, 2020, a
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`true and correct copy of
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`foregoing document was electronically filed with the Court and served on all
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`parties of record via the Court’s CM/ECF system.
`
`/s/ Reza Mirzaie
`Reza Mirzaie
`Attorneys for Plaintiff
`Proven Networks, LLC
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