Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 1 of 43
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`
`
`NEONODE SMARTPHONE LLC,
`
`
`
`
`Plaintiff,
`
`v.
`
`
`
`
`Civil Action No. 6:20-cv-00505
`
`
`
`JURY TRIAL DEMANDED
`
`
`APPLE INC.,
`
`
`
`
`
`Defendant.
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff Neonode Smartphone LLC (“Neonode”), by and through its attorneys, hereby
`
`alleges the following:
`
`I.
`
`NATURE OF THE ACTION
`
`1.
`
`This is a patent infringement action for damages and other appropriate remedies
`
`for Defendant Apple Inc.’s (“Apple’s) unauthorized and infringing manufacture, use, sale,
`
`offering for sale, and/or importation of products incorporating Plaintiff’s patented inventions.
`
`2.
`
`Neonode is the owner of all right, title, and interest in and to United States Patent
`
`Nos. 8,095,879 (the “’879 Patent”), issued January 10, 2012 and titled “User Interface for
`
`Mobile Handheld Computer Unit.” A true and correct copy of the ‘879 Patent is attached hereto
`
`as Exhibit A.
`
`3.
`
`Neonode is also the owner of all right, title, and interest in and to United States
`
`Patent Nos. 8,812,993 (the “’993 Patent”), issued August 19, 2014 and titled “User Interface.”
`
`The ‘993 Patent is a continuation of the ‘879 Patent. A true and correct copy of the ’993 Patent
`
`is attached hereto as Exhibit B.
`
`
`
`- 1 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 2 of 43
`
`4.
`
`Apple manufactures, provides, sells, offers for sale, imports, and/or distributes
`
`products that directly infringe the ’879 and ‘993 Patents. Further, Apple indirectly infringes the
`
`‘879 and ‘993 Patents by inducing and contributing to infringement by others, including users of
`
`Apple devices.
`
`5.
`
`Neonode seeks monetary damages, prejudgment interest, injunctive relief, and
`
`other relief for Apple’s past and continuing infringement of the ‘879 and ‘993 Patents.
`
`II.
`
`PARTIES
`
`6.
`
`Plaintiff Neonode is a Wyoming limited liability company having a principal
`
`place of business at 30 N. Gould St., Suite R, Sheridan, WY 82801.
`
`7.
`
`Upon information and belief, Defendant Apple Inc. is a corporation organized and
`
`existing under the laws of California and has several regular and established places of business in
`
`the Austin, Texas area, including at 12545 Riata Vista Circle, Austin, Texas. As of November
`
`2019, Apple stated that it had approximately 7,000 employees in the city of Austin. As of May
`
`2020, Apple had posted job listings on its website for at least ten jobs at Apple facilities in
`
`Austin. The work done at these locations in Texas includes work related to Apple’s iPhone and
`
`iPad products.
`
`8.
`
`Upon information and belief, Apple also operates brick-and-mortar Apple Stores
`
`at Barton Creek Square, Austin, Texas and at Apple Domain Northside, Austin, Texas. See
`
`www.apple.com/retail/. Apple uses, offers for sale and sells iPhones at these Apple Stores.
`
`9.
`
`Apple may be served with process through its registered agent for service in
`
`Texas: CT Corporation System, 1999 Bryan Street, Suite 900, Dallas, Texas 75201.
`
`
`
`- 2 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 3 of 43
`
`III.
`
`JURISDICTION AND VENUE
`
`10.
`
`This is an action for patent infringement, which arises under the Patent Laws of
`
`the United States, in particular, 35 U.S.C. §§ 271, 281, 282, 284, and 285. The Court has
`
`jurisdiction over the subject matter of this action under 28 U.S.C. §§ 1331 and 1338(a).
`
`11.
`
`This Court has personal jurisdiction over Apple because Apple has committed
`
`acts giving rise to this action within Texas and within this judicial district. Defendant also
`
`regularly does business or solicits business in this District and in Texas, engages in other
`
`persistent courses of conduct and derives substantial revenue from products and services
`
`provided in this District and in Texas, and has purposefully established substantial, systematic,
`
`and continuous contacts within this District and should reasonably expect to be sued in a court in
`
`this District. For example, Apple has offices within this District. The website www.apple.com
`
`solicits sales of infringing products to consumers in this District and in Texas. Given these
`
`contacts, the Court’s exercise of jurisdiction over Apple will not offend traditional notions of fair
`
`play and substantial justice.
`
`12.
`
`Venue in the Western District of Texas is proper pursuant to 28 U.S.C. §§
`
`1391(b), (c) and l400(b) because Apple has regular and established places of business in this
`
`District, including at 12545 Riata Vista Circle, Austin, Texas, has committed acts within this
`
`judicial district giving rise to this action, and Apple continues to conduct business in this judicial
`
`district, including multiple acts of making, selling, using, importing and/or offering for sale
`
`infringing products and providing support service to Apple’s customers in this District.
`
`IV.
`
`THE PATENTS-IN-SUIT
`
`13. Magnus Goertz, the named inventor of both the ‘879 and ‘993 Patents, co-
`
`founded Neonode AB in or about 2001. Neonode AB and its affiliated and successor entities
`
`developed and commercialized the Neonode N1 and N2 mobile phones. The N1 and N2
`
`
`
`- 3 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 4 of 43
`
`incorporated the company’s zForce and Neno touchscreen and interface technologies, which
`
`enabled production of a phone small enough to fit in the palm of your hand and allowed the user
`
`to navigate menus and functions with simple finger-based taps and swipes. Patents covering
`
`these technologies were later issued in the United States to Neonode Inc. As of 2020, the zForce
`
`technology had been incorporated into at least 73 million products worldwide.
`
`14.
`
`The ‘879 and ‘993 Patents relate to the Neno technology for presenting and
`
`interacting with a user interface of a mobile handheld computer unit that includes a touch
`
`sensitive display.
`
`15.
`
`The specification common to both the ‘879 Patent and the ‘993 Patent identifies
`
`technical problems in the prior art and discloses solutions to these problems. For instance, the
`
`specification explains that there was a recognized problem in the prior art as of 2002, the priority
`
`date of both patents, providing an interface on mobile handheld computers that was “adapted to
`
`handle a large amount of information and different kinds of traditional computer-related
`
`applications on a small handheld computer unit.” (‘879 Patent, col. 1:49-52; ‘993 Patent, col.
`
`1:59-62) It was also “a problem to provide a small handheld computer unit with an easily
`
`accessible text input function.” (‘879 Patent, col. 1:56-57; ‘993 Patent, col. 1:66-67) It was
`
`“also a problem to provide a simple way to make the most commonly used functions for
`
`navigation and management available in the environment of a small handheld computer unit.”
`
`(‘879 Patent, col. 1:58-61; ‘993 Patent, col. 2:1-4)
`
`16.
`
`In order to overcome these problems, the ‘879 and ‘993 Patents taught, among
`
`other things, that a mobile device with a touch sensitive display could be configured to provide a
`
`user interface presenting multiple representations of predefined functions, each of which could
`
`be activated when the device detects a particular type of movement of an object on the display,
`
`
`
`- 4 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 5 of 43
`
`such as, for example, a user’s finger touching the display and gliding away from the touched
`
`location. This teaching was novel, and, among other things, enabled more effective use of the
`
`limited space available on the touch sensitive display of a mobile computer unit such as a
`
`smartphone.
`
`V.
`
`APPLE’S KNOWLEDGE OF THE PATENTS-IN-SUIT
`
`17.
`
`On information and belief, Apple has known of the ‘879 Patent since shortly after
`
`it issued, on January 10, 2012.
`
`18.
`
`On or about February 8, 2012, Apple Inc. filed a complaint against Samsung
`
`Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications
`
`America, LLC, entitled Apple Inc. v. Samsung Electronics Co., Ltd., et al., in the U.S. District
`
`Court for the Northern District of California, Case No. 12-CV-00630-LHK (“the Apple v.
`
`Samsung litigation”). In the Apple v. Samsung litigation, Apple alleged that the defendant
`
`Samsung entities had infringed and were infringing a number of Apple patents. Among the
`
`Apple patents asserted in this action were U.S. Patent No. 8,046,721, entitled “Unlocking a
`
`device by performing gestures on an unlock image.” On information and belief, this patent
`
`became widely known as the “swipe to unlock” or “slide to unlock” patent.
`
`19.
`
`On information and belief, Apple and/or its litigation counsel regularly monitored
`
`industry press relating to the subject matter of the litigation against Samsung and undertook
`
`substantial research and investigative efforts to obtain information pertinent to the subject matter
`
`of the litigation against Samsung, on an ongoing basis from at least February 2012 forward.
`
`20.
`
`On or about February 22, 2012, an article entitled “Neonode Beat Apple By Three
`
`Years With The Swipe-To-Unlock Patent” was published in the online journal The Tech Journal,
`
`https://thetechjournal.com/tech-news/industry-news/neonode-beat-apple-by-three-years-with-
`
`the-swipe-to-unlock-patent.xhtml. The article stated, among other things, that “[a] small but
`
`
`
`- 5 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 6 of 43
`
`feisty Swedish company, Neonode figured out how to integrate a slide to unlock feature in its
`
`phones, long before Apple even considering making an iPhone.” The article further stated:
`
`Apparently, in July 2004, Neonode introduced to the market a small phone called N1 that
`
`had the unlock feature. Neonode already had patented a slide to unlock feature, without
`
`the associated graphics and obtained the patent in December 2002 (the US patent
`
`number: 8095879).
`
`Id. The article included images of Figures 11 and 12 from the ‘879 Patent. On information and
`
`belief, Apple became aware of this article shortly after it was published.
`
`
`
`21.
`
`On or about February 27, 2012, an article entitled “A Swedish Company Claims It
`
`Owns A Swipe Patent Used By Apple” was published in the online journal Tech Crunch,
`
`https://techcrunch.com/2012/02/27/a-swedish-company-claims-it-owns-a-swipe-patent-that-is-
`
`used-by-apple/. The article stated, among other things:
`
`Another front has opened in the multi-faceted story of patent battles: Neonode, an optical
`
`touchscreen tech company based in Sweden, says that it has been granted a patent in the
`
`U.S. that covers the touch-and-glide gesture that it claims is used on devices like the
`
`iPhone and iPad.
`
`The patent is notable not only because Neonode says the patent covers functions like the
`
`horizontal touch gesture that Apple uses between screens on its iOS devices, as well as in
`
`the slide-to-unlock feature. But also because slide-to-unlock is the same feature that
`
`Apple has been citing in its own patent lawsuits against Android device makers Motorola
`
`and Samsung.
`
`Id. The article identified the patent by number – “number 8,095,879 from the U.S. Patent and
`
`Trademark Office” – and stated: “We have contacted Apple for its response to this and will
`
`
`
`- 6 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 7 of 43
`
`update the story as we learn more.” Id. On information and belief, Apple became aware of this
`
`article shortly after it was published.
`
`22.
`
`On or about February 28, 2012, an article entitled “Swedish company claims
`
`rights to ‘slide to unlock’ with new UI patent” was published in the online journal
`
`“appleinsider,”
`
`https://appleinsider.com/articles/12/02/28/swedish_company_claims_rights_to_slide_to_unlock_
`
`with_new_ui_patent. The article stated, among other things, that “Neonode says it was issued
`
`U.S. Patent No. 8,095,879 which covers gesture-based interaction with a touch sensitive surface,
`
`a description that is similar to Apple's "slide to unlock" patent,” and that:
`
`Apple is supposedly the first target for Neonode, though Shain said the company is
`
`looking for "friendly licensing" deals before pursuing patent infringement lawsuits.
`
`Id. On information and belief, the person referenced above was Joseph Shain, Neonode Inc.’s
`
`Vice President of Intellectual Property. The article included images of Figures 10-12 from the
`
`‘879 Patent. On information and belief, Apple became aware of this article shortly after it was
`
`published.
`
`23.
`
`On March 19, 2012, Mr. Shain, as well as Bjorn Thomas Eriksson, CEO of
`
`Neonode Technologies AB and Neonode Inc., were deposed by counsel for Apple and Motorola
`
`Mobility, Inc. in the action entitled Motorola Mobility, Inc. v. Apple, Inc., in the U.S District
`
`Court for the Southern District of Florida, Case No. 1:10cv023580-Civ-UU. In the course of this
`
`deposition, the ‘879 Patent was marked as an exhibit, and counsel for both Apple and Motorola
`
`asked Mr. Shain numerous questions relating to the patent.
`
`24.
`
`On information and belief, Apple has known of the ‘993 Patent since shortly after
`
`it issued, on August 19, 2014.
`
`
`
`- 7 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 8 of 43
`
`25.
`
`On or about July 8, 2013, Samsung filed “Samsung’s Reduction of Invalidity
`
`References,” Dkt. No. 671, in the Apple v. Samsung litigation. Samsung’s Reduction of
`
`Invalidity References identified “Neonode N1 Quickstart Guide V0.5” as a reference against
`
`Apple’s “swipe to unlock” patent.
`
`26.
`
`After a 13-day trial in the Apple v. Samsung litigation, the jury found the asserted
`
`claims of Apple’s “swipe to unlock” patent infringed and not invalid. Samsung appealed the
`
`finding that the patent was not invalid. In an opinion issued on or about February 26, 2016, the
`
`Federal Circuit held that Apple’s “swipe to unlock” patent would have been obvious over a
`
`combination that included the Neonode N1 Quickstart Guide. In a second opinion issued on or
`
`about October 7, 2016, the Federal Circuit, sitting en banc, held that there was substantial
`
`evidence to support the jury’s finding that Apple’s “swipe to unlock” patent was not obvious
`
`over the cited combination, and affirmed and reinstated the district court judgment.
`
`27.
`
`On information and belief, to the extent that Apple was not already aware of the
`
`‘993 Patent, Samsung’s reliance on the Neonode N1 Quickstart Guide as a principal prior art
`
`reference over several years of litigation that included a jury trial, an appeal to the Federal
`
`Circuit and two issued Federal Circuit opinions on the merits, combined with Apple’s knowledge
`
`of the ‘879 Patent – from which the ‘993 Patent descended as a continuation – from at least early
`
`2012, caused Apple to become aware of the ‘993 Patent as a result of, inter alia, the work of
`
`Apple’s counsel in connection with the Apple v. Samsung litigation.
`
`
`
`28.
`
`Apple was again made aware of the ‘879 and ‘993 Patents on or about May 13,
`
`2017, when Mr. Shain informed Apple that Neonode Inc. had “a family of user interface patents
`
`that relate to Neonode’s N2 smartphone and that have been identified in the industry as being
`
`pioneering, in particular US Patent Nos. 8095879, 8650510, 8812993, 9165654 and their
`
`
`
`- 8 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 9 of 43
`
`continuations,” and inquired as to “whether Apple might be interested in acquiring the patent
`
`family.” Denise Kerstein, Head of Patent Acquisitions for Apple, requested that Mr. Shain send
`
`her a prospectus concerning the portfolio. The next day, Mr. Shain emailed the prospectus to
`
`Ms. Kerstein. The prospectus included, among other things, a citation analysis showing that the
`
`‘879 Patent had been cited by Apple in Apple’s own patent prosecution efforts more than 30
`
`times, and illustrated what Neonode Inc. contended were 11 usage scenarios under the ‘879
`
`Patent and six usage scenarios under the ‘993 Patent.
`
`29. Ms. Kerstein and Mr. Shain discussed the Neonode Inc. patents on May 15, 2017.
`
`30.
`
`On July 21, 2017, Elaine Wong, of the Patent Acquisitions group at Apple,
`
`informed Mr. Shain that Apple had decided “to pass on the opportunity.”
`
`VI.
`
`THE INFRINGING APPLE DEVICES
`
`31.
`
`iPhone X and the Transition to Gestures. On September 12, 2017, Apple
`
`announced the impending release of the iPhone X. Apple touted the iPhone X as “the future of
`
`the smartphone” in a press release, in large part due to the phone’s “all-screen” design that
`
`eliminated the physical home button:
`
`“For more than a decade, our intention has been to create an iPhone that is all display.
`
`The iPhone X is the realization of that vision,” said Jony Ive, Apple’s chief design
`
`officer. “With the introduction of iPhone ten years ago, we revolutionized the mobile
`
`phone with Multi-Touch. iPhone X marks a new era for iPhone — one in which the
`
`device disappears into the experience.”
`
`https://www.apple.com/newsroom/2017/09/the-future-is-here-iphone-x/. As part of this
`
`“revolutionary” advance, iOS 11 was “redesigned to take full advantage of the Super Retina
`
`display and replace[d] the Home button with fast and fluid gestures, allowing customers to
`
`naturally and intuitively navigate iPhone X.” Id. For this new generation of iPhone, in order to
`
`
`
`- 9 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 10 of 43
`
`transition from the Lock Screen to the Home Screen, the user swiped up from the Home Bar at
`
`the bottom center of the display, which would transition the display directly to the Home Screen
`
`if Face ID was configured and enabled or to a passcode entry screen if it was not. In order to
`
`transition from the Lock Screen to the Control Center, the user swiped down from a horizontal
`
`bar at the upper right corner:
`
`
`
`32.
`
`The iPhone X was released in the United States on November 3, 2017. All
`
`subsequent models of the iPhone, as well as the third and fourth generation models of the iPad
`
`Pro, incorporated Apple’s new “all display” design and the suite of interface gestures introduced
`
`in iOS 11, which were carried forward in iOS 12, iOS 13, and iPadOS.
`
`
`
`- 10 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 11 of 43
`
`33.
`
`Swipe Typing. On June 2, 2014, at its Worldwide Developer Conference, Apple
`
`announced that iOS 8 would add support for third party keyboard applications, allowing users to
`
`download such applications from the Apple App Store to their iPhones and replace the native
`
`Apple keyboard. These applications included several that included code for enabling “swipe
`
`typing,” i.e., the ability to enter text on a keyboard by gliding an object (such as the user’s finger)
`
`across the keys on a keyboard rather than tapping each key individually. On stage at its
`
`Developer Conference, Apple showcased Swype as an example in the slides presented to its
`
`audience, highlighting Swype’s signature feature of quickly inputting text by dragging a finger
`
`across the screen:
`
`https://www.youtube.com/watch?v=w87fOAG8fjk, at 1:32:10.
`
`34.
`
`iOS 8 was released in the United States on September 17, 2014. In connection
`
`with the rollout of iOS 8, Apple specifically touted swipe typing as one the flagship
`
`
`
`
`
`- 11 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 12 of 43
`
`functionalities that would be enabled by third party keyboard applications, and began hosting and
`
`selling such third party keyboard applications on the Apple App Store:
`
`
`
`https://www.apple.com/my/ios/whats-new/quicktype/.
`
`
`
`35.
`
`Swype quickly became the top paid-download application available in the Apple
`
`App Store. One reviewer characterized the flood of downloads of the swipe typing application
`
`as a “stampede.” https://www.tomsguide.com/us/swype-ios8-keyboard,review-2398.html.
`
`36. With the release of iOS 13, on September 19, 2019, Apple introduced its own
`
`native swipe typing capability, which it branded “QuickPath.” The new functionality was lauded
`
`as a “great feature,” https://appletoolbox.com/use-quickpath-ipados-keyboard-feature/, that
`
`would “change the way you type on your iPhone,” https://www.cnet.com/how-to/how-to-use-
`
`the-iphones-new-slide-to-type-keyboard-in-ios-13/, adding a functionality that had “long been
`
`popular on Android devices,” https://www.groovypost.com/howto/use-quickpath-updated-ios-
`
`keyboard/, such as smartphones offered by Samsung, Apple’s main smartphone competitor in the
`
`United States market.
`
`COUNT I:
`
`INFRINGEMENT OF THE ‘879 PATENT
`
`37.
`
`Neonode incorporates paragraphs 1 through 36 herein by reference.
`
`
`
`- 12 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 13 of 43
`
`38.
`
`Direct Infringement – Control Bar: Apple has been and is presently directly
`
`infringing at least claim 1 of the ‘879 Patent by making, using, selling, or offering for sale within
`
`the United States, and/or importing into the United States, Apple iPhone X, XR, XS, XS Max,
`
`11, 11 Pro and 11 Pro Max devices, and iPad Pro third (2018) and fourth (2020) generation
`
`devices (collectively, “the Swipe to Open Devices”).
`
`39.
`
`As one non-limiting example of the claims of the ‘879 Patent that are infringed by
`
`the Swipe to Open Devices, claim 1 of the ‘879 Patent recites:
`
`
`
`40.
`
`The Swipe to Open Devices are mobile handheld computer units, and include a
`
`memory storing code which, when read by a processor, allows the devices to present a user
`
`interface as outlined below.
`
`41.
`
`The Swipe to Open Devices include a display that is touch sensitive, in which one
`
`or more representations of functions may be displayed. For example:
`
`
`
`- 13 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 14 of 43
`
`
`
`
`
`42.
`
`In the display as set forth above, the short orange horizontal bar in the upper right
`
`corner of the display (the “Control Bar”) is a representation of the function of opening the
`
`Control Center. The Control Bar consists of only one option for activating the function, and the
`
`function is activated by a multi-step operation comprising (i) an object (such as a user’s finger)
`
`touching the display at the location of the Control Bar and (ii) gliding along the display away
`
`from the touched location. The Control Bar is not relocated or duplicated during the gliding.
`
`
`
`
`
`- 14 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 15 of 43
`
`43.
`
`Direct Infringement – QuickPath: Apple has been and is presently directly
`
`infringing at least claim 1 of the ‘879 Patent by making, using, selling, or offering for sale within
`
`the United States, and/or importing into the United States, mobile devices with the QuickPath
`
`swipe-typing functionality loaded onto the device, including at least the following devices: (i)
`
`all iPhone 11, iPhone 11 Pro, iPhone 11 Pro Max, iPad (7th generation), and iPad Pro (4th
`
`generation) devices, (ii) all iPhone XR, iPhone 8, iPhone 8 Plus, iPad Mini (5th generation), iPad
`
`Air (3rd generation) devices sold in or after September 2019 with iOS 13 or iPadOS loaded onto
`
`the device, and (iii) all Apple devices to which iOS 13 or iPadOS was downloaded from a server
`
`owned and/or operated by or at the direction of Apple (collectively, “the QuickPath Devices”).
`
`44.
`
`Claim 1 of the ‘879 Patent, set forth above, is one non-limiting example of the
`
`claims of the ‘879 Patent that are infringed by the QuickPath Devices.
`
`45.
`
`The QuickPath Devices are mobile handheld computer units, and include a
`
`memory storing code which, when read by a processor, allows the devices to present a user
`
`interface as outlined below.
`
`46.
`
`The QuickPath Devices include a display that is touch sensitive, in which one or
`
`more representations of functions may be displayed. For example:
`
`
`
`- 15 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 16 of 43
`
`
`
`47.
`
`In the display as set forth above, each of the “key” icons of the virtual keyboard is
`
`a representation of a function, each of the keys consists of only one option for activating the
`
`function (i.e., one letter), and the function may be activated by a multi-step operation comprising
`
`(i) an object (such as a user’s finger) touching the display at the location of the key and (ii)
`
`gliding along the display away from the touched location. Keys are not relocated or duplicated
`
`during the gliding.
`
`48.
`
`Direct Infringement – Third Party Keyboard Applications: Apple has been
`
`and is presently directly infringing at least claim 1 of the ‘879 Patent by making, within the
`
`United States, mobile devices that include code for enabling swipe typing functionality (“the
`
`
`
`- 16 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 17 of 43
`
`Swipe-Typing Keyboard App Devices”), by causing third party keyboard applications that
`
`include swipe-typing functionality (collectively, “Swipe-Typing Keyboard Apps”) that are
`
`hosted on servers owned and/or operated by or at the direction of Apple to be downloaded to
`
`Apple devices.
`
`49.
`
`The Swipe-Typing Keyboard App Devices include at least the following devices,
`
`from and after any download to the device of a Swipe-Typing Keyboard App: Apple iPhone 4S,
`
`iPhone 5, iPhone 5C, iPhone 5S, iPhone 6, iPhone 6 Plus, iPhone SE, iPhone 6s, iPhone 6s Plus,
`
`iPhone 7, iPhone 7 Plus, iPhone 8, iPhone 8 Plus, iPhone X, iPhone XR, iPhone XS, iPhone XS
`
`Max, iPhone 11, iPhone 11 Pro, iPhone 11 Pro Max, iPad Air 2, iPad Air (3d generation), iPad
`
`mini 4, iPad mini (5th generation), iPad (5th, 6th, 7th generations), and iPad Pro (1st, 2nd, 3rd,
`
`4th generations), and Apple Watch.
`
`50.
`
`Claim 1 of the ‘879 Patent, set forth above, is one non-limiting example of the
`
`claims of the ‘879 Patent that are infringed by the Swipe-Typing Devices.
`
`51.
`
`The Swipe-Typing Keyboard App Devices are mobile handheld computer units,
`
`and include a memory storing code which, when read by a processor, allows the devices to
`
`present a user interface as outlined below.
`
`52.
`
`The Swipe-Typing Keyboard App Devices include a display that is touch
`
`sensitive, in which one or more representations of functions may be displayed. For example:
`
`
`
`- 17 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 18 of 43
`
`
`
`53.
`
`In the display as set forth above, which displays the GBoard Swipe-Typing
`
`Keyboard App, each of the “key” icons of the virtual keyboard is a representation of a function,
`
`each of the keys consists of only one option for activating the function (i.e., one letter), and the
`
`function may be activated by a multi-step operation comprising (i) an object (such as a user’s
`
`finger) touching the display at the location of the key and (ii) gliding along the display away
`
`from the touched location. Keys are not relocated or duplicated during the gliding.
`
`54.
`
`Direct Infringement – Third Party Keyboard Applications: Apple has been
`
`and is presently directly infringing at least claim 1 of the ‘879 Patent by selling and offering to
`
`sell, within the United States, the Swipe-Typing Devices, as a single device consisting of two
`
`
`
`- 18 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 19 of 43
`
`components: the devices identified in paragraph 55 below, and the Swipe-Typing Keyboard
`
`Apps.
`
`55.
`
`Apple has sold and offered for sale, or is selling and offering for sale, within the
`
`United States all of the following devices: Apple iPhone 4S, iPhone 5, iPhone 5C, iPhone 5S,
`
`iPhone 6, iPhone 6 Plus, iPhone SE, iPhone 6s, iPhone 6s Plus, iPhone 7, iPhone 7 Plus, iPhone
`
`8, iPhone 8 Plus, iPhone X, iPhone XR, iPhone XS, iPhone XS Max, iPhone 11, iPhone 11 Pro,
`
`iPhone 11 Pro Max, iPad Air 2, iPad Air (3d generation), iPad mini 4, iPad mini (5th generation),
`
`iPad (5th, 6th, 7th generations), and iPad Pro (1st, 2nd, 3rd, 4th generations), and Apple Watch
`
`(collectively, when running iOS 8 or a later version of iOS, iPadOS or WatchOS, “the Swipe-
`
`Typing Keyboard App-Ready Devices”).
`
`56.
`
`In addition, Apple has been and is presently selling and offering for sale through
`
`the Apple “App Store” Swipe-Typing Keyboard Apps for download to the Swipe-Typing
`
`Keyboard App-Ready Devices.
`
`57.
`
`On information and belief, Apple hosts the Swipe-Typing Keyboard Apps
`
`available in its App Store on servers owned and/or operated by or at the direction of Apple, and
`
`causes the download of such applications to the Swipe-Typing Keyboard App-Ready Devices to
`
`execute.
`
`58.
`
`On information and belief, Apple has the authority to enter into transactions with
`
`users of the Swipe-Typing Keyboard App-Ready Devices concerning Swipe-Typing Keyboard
`
`Apps that are hosted on Apple’s App Store. On information and belief, the developers of Swipe-
`
`Typing Keyboard Apps that are hosted on Apple’s App Store have no discretion as to whether to
`
`reject, accept or confirm specific transactions with users of the Swipe-Typing Keyboard App-
`
`Ready Devices concerning Swipe-Typing Keyboard Apps.
`
`
`
`- 19 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 20 of 43
`
`59.
`
`On information and belief, Apple controls the content displayed to a user on the
`
`Apple App Store, including the content displayed for each Swipe-Typing Keyboard App.
`
`60.
`
`For each of the Swipe-Typing Keyboard Apps that are or have been available for
`
`download from the Apple App Store, Apple displays on the App Store, among other things, the
`
`price of the application (which may include “GET,” which indicates that the initial price of the
`
`application is $0), an icon enabling a user to obtain a download of the application by simply
`
`tapping the icon, one or more graphical depictions associated with the application, information
`
`concerning the application (including but not limited to a description of the application, user
`
`ratings of the application, a ranking of the application against other applications in its category,
`
`and a version history concerning the application).
`
`61.
`
`On information and belief, Apple enables download of Swipe-Typing Keyboard
`
`Apps that are or have been available for download from the Apple App Store only to the Swipe-
`
`Typing Keyboard App-Ready Devices. On information and belief, Swipe-Typing Keyboard
`
`Apps are sold for use only with the Swipe-Typing Keyboard App-Ready Devices, as part of a
`
`system that includes the Apple device and the application.
`
`62.
`
`A user of any of the Swipe-Typing Keyboard App-Ready Devices may obtain a
`
`download of a Swipe-Typing Keyboard App by simply tapping an icon on a product page on the
`
`Apple App Store that states “GET” (indicating a price of $0) or another price. On information
`
`and belief, upon the user tapping the icon, Apple executes a download of the application to the
`
`user’s device, which executes code in the iOS operating system to cause the device to onboard
`
`the application and store in memory the code for the application transmitted from Apple.
`
`63.
`
`Following a user’s tap on the price icon, in the event that a price is stated in a
`
`specific monetary amount, Apple obtains payment directly from the user. For example, in more
`
`
`
`- 20 -
`
`

`

`Case 6:20-cv-00505 Document 1 Filed 06/08/20 Page 21 of 43
`
`recent models of the Swipe-Typing Keyboard App-Ready Devices, Apple instructs the user to,
`
`e.g., “Double Click [on a side button] to Pay,” or to “Confirm with Side Button,” with graphical
`
`representations and illustrations of the button the user is instructed to click. At no point in the
`
`transaction does the user interact with the third party developer of the application; the user
`
`interacts solely with Apple in order to obtain the application.
`
`64.
`
`On information and belief, following execution of the download, Apple retains a
`
`record of the user’s purchase of the application, such that if the user deletes the application and
`
`later views the display concerning the application on Apple’s App Store, the price icon will be
`
`replaced by an icon resembling a cloud and a downward pointing arrow, suggesting that the user
`
`download the application.
`
`65.
`
`The content concerning Swipe-Typing Keyboard Apps that is displayed to a user
`
`on the Apple App Store suggests to the user that Apple is selling the application. The content
`
`concerning Swipe-Typing Keyboard Apps that is displayed to a user on the Apple App Store
`
`su