Case 6:20-cv-00564-ADA Document 1 Filed 06/24/20 Page 1 of 31
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`S3G TECHNOLOGY LLC,
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`HOMEAWAY, INC.; HOMEAWAY.COM,
`INC.; and HOMEAWAY SOFTWARE, INC.,
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`Plaintiff,
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`v.
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`Defendants.
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`Case No. 6:20-cv-564
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`JURY TRIAL DEMANDED
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff S3G Technology LLC (“S3G”) alleges as follows for its complaint against
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`Defendant HOMEAWAY, INC.; HOMEAWAY.COM, INC.; and HOMEAWAY SOFTWARE,
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`INC. (collectively, “Defendants” or “HOMEAWAY”):
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`JURISDICTION AND VENUE
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`1.
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`This is an action for patent infringement in violation of the Patent Act of the
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`United States, 35 U.S.C. §§ 1 et seq.
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`2.
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`This Court has original and exclusive subject matter jurisdiction over patent
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`infringement claims for relief under 28 U.S.C. §§ 1331 and 1338(a).
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`3.
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`The Court has specific and general personal jurisdiction over Defendants pursuant
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`to due process and/or the Texas Long Arm Statute, due at least to Defendants’ substantial
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`business in this forum, including: (i) at least a portion of the infringements alleged herein; and
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`(ii) regularly doing or soliciting business, engaging in other persistent courses of conduct, and/or
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`deriving substantial revenue from goods and services provided to individuals in Texas and in this
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`District.
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`4.
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`Venue is proper in this judicial district pursuant to 28 U.S.C. § 1400(b) because,
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`among other things, Defendants are subject to personal jurisdiction in this judicial district,
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`Defendants have regular and established places of business in Texas and in this judicial district,
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`Defendants have purposely transacted business involving the use of the accused products in this
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`judicial district, and committed acts of infringement in this judicial district as described herein.
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`PARTIES
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`5.
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`S3G is a limited liability company organized under the laws of the State of
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`California with its principal place of business in Foster City, California. S3G has been, and
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`continues to, develop technology-based solutions for rural and remote populations in India to
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`facilitate economic empowerment and development. For example, S3G is developing mobile
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`solutions that enable the authenticated access to different types of spaces, including to buildings
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`and portions thereof. The information that S3G’s technology solutions may collect and maintain
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`about its users will further enable the delivery of educational and other services that may help
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`these users to emerge from poverty and change their lives and those of their families. In
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`connection with its mobile solutions, S3G has obtained patents covering its technology both in
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`the United States and worldwide. For example, its patent portfolio includes additional granted
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`patents and pending applications in Mexico, Brazil, Nicaragua, Costa Rica, India, Philippines
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`and Indonesia.
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`6.
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`The Managing Member of S3G, who is also the named inventor of the asserted
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`patents, is an award-winning MIT-trained researcher, technologist and inventor who has used
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`and continues to use innovative technologies to address many of the world’s critical problems,
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`including poverty, access to financial services and access to clean drinking water. The World
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`Economic Forum has recognized him for his professional accomplishments, commitment to
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`society and potential to contribute to shaping the future of the world.
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`7.
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`S3G is informed and believes, and on that basis alleges, that Defendant
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`HOMEAWAY, INC. is organized and existing under the laws of the State of Delaware, having a
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`place of business at 1011 West 5th Street, Suite 300, Austin, Texas 78703.
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`8.
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`S3G is informed and believes, and on that basis alleges, that Defendant
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`HOMEAWAY.COM, INC. is organized and existing under the laws of the State of Delaware,
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`having a place of business at 1011 West 5th Street, Suite 300, Austin, Texas 78703.
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`9.
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`S3G is informed and believes, and on that basis alleges, that Defendant
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`HOMEAWAY SOFTWARE, INC. is organized and existing under the laws of the State of
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`Delaware, having a place of business at 11800 Domain Blvd., Suite 300, Austin, Texas 78758.
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`10.
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`S3G is further informed and believes, and on that basis alleges, that Defendants
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`derive a significant portion of their revenue from the use, promotion and distribution of their
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`products and services, including from the use of Defendants' mobile application for devices
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`running the Android operating system known as HomeAway Vacation Rentals and Vrbo
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`Vacation Rentals (collectively, “Defendants app”)1, and their methods, systems, computing
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`devices, servers, software, and non-transitory computer readable storage medium that perform,
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`execute, run, store, support or facilitate the use of the Defendants app (collectively, “Accused
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`Instrumentalities”).
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`1 See https://play.google.com/store/apps/details?id=com.vacationrentals.homeaway&hl=en_US
`and https://play.google.com/store/apps/details?id=com.vrbo.android&hl=en_US.
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`11.
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`S3G is informed and believes and thereon alleges that each of the Defendants
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`conspired and acted in concert with one another to commit the wrongs against S3G alleged
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`herein, and in doing so were at all relevant times the agents, servants, employees, principals,
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`joint venturers, alter egos, and/or partners of each other. S3G is further informed and believes
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`and on that basis avers that, in doing the things alleged in this Complaint, each of the Defendants
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`was acting within the scope of authority conferred upon that Defendant by the consent, approval,
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`and/or ratification of the other Defendants.
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`12.
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`S3G is informed and believes, and on that basis alleges, that, at all times relevant
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`hereto, Defendants have conducted and continue to conduct business, including the use,
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`distribution, promotion, and/or the offer for sale and sale of their products and services using the
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`Accused Instrumentalities, including the Defendants app, in this Judicial District. On
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`information and belief, Defendants do business themselves, or through their subsidiaries,
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`affiliates, and franchisees, in the State of Texas and the Western District of Texas.
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`PATENTS
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`13.
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`United States Patent No. 8,572,571 (the “’571 patent”) entitled “Modification of
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`Terminal and Service Provider Machines Using an Update Server Machine” was duly and legally
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`issued on October 29, 2013. A true and correct copy of the ’571 patent is attached hereto as
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`Exhibit “A” and incorporated herein by this reference. By a series of assignments, S3G is now
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`the assignee of the entire right, title and interest in and to the ’571 patent, including all rights to
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`enforce the ’571 patent and to recover for infringement. The ’571 patent is valid and in force.
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`14.
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`United States Patent No. 9,304,758 (the “’758 patent”) entitled “Modification of
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`Terminal and Service Provider Machines Using an Update Server Machine” was duly and legally
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`issued on April 5, 2016. A true and correct copy of the ’758 patent is attached hereto as Exhibit
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`“B” and incorporated herein by this reference. S3G is the assignee of the entire right, title and
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`interest in and to the ’758 patent, including all rights to enforce the ’758 patent and to recover for
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`infringement. The ’758 patent is valid and in force.
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`15.
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`United States Patent No. 10,387,140 (the “’140 patent”) entitled “Modification of
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`Terminal and Service Provider Machines Using an Update Server Machine” was duly and legally
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`issued on August 20, 2019. A true and correct copy of the ’140 patent is attached hereto as
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`Exhibit “C” and incorporated herein by this reference. S3G is the assignee of the entire right,
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`title and interest in and to the ’140 patent, including all rights to enforce the ’140 patent and to
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`recover for infringement. The ’140 patent is valid and in force.
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`The Technical Problems Addressed by the Patents-in-Suit
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`16.
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`The ’571 Patent, ’758 Patent and the ’140 Patent (collectively, the “Asserted
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`Patents”) disclose that at the time of the invention, often times, after a computerized system has
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`been initially constructed, modifications may be required, either to improve the functionality of
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`the system or to customize the system to meet new requirements. Typically, a software
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`application includes computer-executable instructions that are not able to be edited or modified
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`directly by a developer. Instead, the developer may make the required changes by either creating
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`or editing original source code. Once edited or modified, the updated source code must then be
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`recompiled or translated into an updated set of computer-executable instructions. These updated
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`set of computer-executable instructions often includes a relatively large amount of information,
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`which must then be distributed to the hardware devices in the system as an updated software
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`application. ‘571 Patent, Col. 2:1-17.2
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`2 Unless otherwise indicated, all citations are to the ’571 Patent. The ’758 and ’140 Patents are
`continuations and continuation in part of the ’571 Patent, respectively, and also include the
`portions of the specification cited herein.
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`17.
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`At the time of the invention, in many situations it may be difficult to distribute a
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`newly compiled version of the updated software application to all of the devices in the system.
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`This is particularly true if the system is distributed over a large geographic area making it
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`difficult to locate each system device and transport it to a central location where the newly
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`updated computer-executable instructions can be uploaded. This lack of physical access to the
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`devices often means that the new software application cannot be uploaded using a traditional
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`wired connection (e.g., an interface cable). Col. 2:18-26.
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`18.
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`The Asserted Patents further explain that using a wireless communications
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`network to upload the updated computer-executable instructions also has several significant
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`drawbacks. First, the size of the updated computer-executable instructions may exceed the
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`transmission capabilities of the communications network, i.e., the size of the file is too large to
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`be uploaded. Second, even if the updated computer-executable instructions can be uploaded and
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`transmitted over the wireless network, it may take an excessive amount of time. Third, these
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`problems are exacerbated if (1) the computer system includes a large number of devices that
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`must be updated with the modified computer-executable instructions and (2) the devices contain
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`different versions of the application or multiple applications need updates. Col. 2:26-52.
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`The Claimed Solution to the Technical Problems
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`19.
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`The Asserted Patents are directed to a technological solution, i.e., improving the
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`way computers operate. In particular, the Asserted Patents claim a specific computerized system
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`able to provide efficient modification of a specific type of software applications that are
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`distributed across a network of remote devices. Col. 2:53-55. As an example, FIG. 1 (below)
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`discloses, and the Asserted Patents claim, a unique and very specific type of computer system
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`structure involving three entities: a service provider machine 110, a terminal machine 120 and an
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`update server machine 102. Within this specific system, a terminal machine 120 and a service
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`provider machine 110 communicate via applications running on the machines (as depicted by the
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`vertical arrows in the figure).
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`20.
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`As shown below in FIG. 2, the applications running on these machines have a
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`very specific structure: namely, the terminal application 122 comprises first computer-executable
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`instructions 224, which has been construed to mean “computer instructions that can be directly
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`executed on a processor,”3 and first code 222. Col. 7:40-45. The Asserted Patents expressly
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`define that “code” is not just any generic software code; instead, the Asserted Patents teach a
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`very specific structure for “code,” clearly stating that “[t]he code represents at least some
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`3 See S3G Tech. LLC v. Unikey Techs., Inc., Civil Action No. 6:16-cv-400-RWS-KNM, Dkt. 74
`[Report and Recommendation of United States Magistrate Judge], attached hereto as Exhibit D;
`see also Dkt. 91 [Order Adopting Rep. & Rec. of Mag. Judge], attached hereto as Exhibit E.
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`information that must be translated by the software application before it can be implemented on
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`the machine processor.” Col. 4:21-25 (emphasis added).4 The terminal application conducts the
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`terminal machine’s portion of the dialogue with the service provider machine.
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`21.
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`In like fashion, as shown in FIG. 2, the service provider machine runs an
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`application having a very specific structure: namely, the provider application 112 comprises
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`second computer-executable instructions 214, which can be directly executed on a processor, and
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`second code 212, which must be translated before it can be executed on a processor. The
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`provider application conducts the service provider’s portion of the dialogue with the terminal
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`machine.
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`4 Consistent with the specification, the term "code" has been construed to mean "information that
`must be translated before it can be executed on a processor." See Exhibit D at Appendix A.
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`22.
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`FIGS. 1 and 2 also show that the computer system structure in the Asserted
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`Patents is unique in having a third entity, an update server machine. The update server machine
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`is able to communicate with both the terminal machine and the service provider machine (as
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`depicted by the diagonal arrows in the FIG. 1). The update server machine also has a unique and
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`very specific data structure for communicating with the terminal and service provider machines:
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`namely, the update server machine sends one or more dialogue modules, which has been
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`construed to mean “code or instructions related to a dialogue sequence.”5
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`23.
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`As part of the dialogue between the terminal machine and the service provider
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`machine, the terminal machine is modified by receiving a terminal dialogue module. As noted,
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`the dialogue module is a specific structure that contains information that must be translated by
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`the software application before it can be implemented on the machine processor. After receiving
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`the dialogue module, specific actions can be taken. For example, the dialogue module may
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`replace existing terminal code already saved on the terminal machine or the terminal code may
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`supplement other code previously saved on the terminal machine. Col. 8:44-52. These steps
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`produce first updated code, which adapts the terminal application to display a further prompt for
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`the terminal machine’s portion of a modified dialogue sequence with the service provider
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`machine. Significantly, when terminal and service provider applications are modified using a
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`dialogue module it does not result in replacing the prior applications with entirely new
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`applications. This is important because this system with its specific structures results in a number
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`of technological benefits: namely, computing resource, improved network utilization, and design
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`efficiencies. Col. 6:47-49; 14:43-48; FIGS. 8A-B.
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`5 Id.
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`24.
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`During litigation of the Asserted Patents, a Court also held that the “dialogue
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`module” is a very specific type of structure:
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`The recital [in the claims] of “sending a . . . dialogue module” demonstrates that
`the claim uses the term “module”’ to refer to a particular type of structure rather
`than to any structure for performing a function. Further, the specification is
`consistent with such an interpretation by disclosing that a “dialogue module” can
`contain code or other data and can be communicated:
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`Exhibit D at 12 (emphasis added).
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`25.
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`The Court also held that the claimed three entity system of the Asserted Patents
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`also is a particular structure. Specifically, this Court stated that “the surrounding claim language
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`[of terminal machine] provides details regarding how the terminal machine interacts with other
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`components . . . in a way that . . . inform[s] the structural character of [it] or otherwise impart[s]
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`structure.” Id. at 23. The Court held that “[s]ubstantially the same analysis” applies to service
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`provider and update server machines. Id. at 26, 29.
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`26.
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`Among other features, the Asserted Patents thus claim an unconventional and
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`inventive solution to the problem of transmitting large executable files required to replace
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`applications running on remote devices, which previously required networks having massive
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`bandwidth. Specifically, the Asserted Patent disclose the unconventional and inventive system
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`and method of transmitting dialogue modules to terminal and service provider machines to
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`modify and/or update software applications running on those machines. The software
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`applications also are unconventional and inventive in utilizing both computer-executable
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`instructions, which can be directly executed on a processor, and code, which must be translated
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`before it can be executed on a processor, to solve this technological problem.
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`27.
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`The use of “dialogue modules” containing “code” also results in various technical
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`benefits. For example, as the Asserted Patents explain, transmitting an entire software
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`application may represent a “large amount of information” that may not be feasible to transmit
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`due to bandwidth limitations on data transfer over the network. Col. 2:31-32. And, even if an
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`upload of the entire modified application is possible, it may take an unacceptable amount of time
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`due to the slow transfer rate of a wireless network.” Col. 2:40-44. By comparison, the Asserted
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`Patents disclose that, “[i]n a preferred embodiment, the dialogue module is less than 1 Mb to
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`facilitate communication over a network with limited data transfer capacity.” Col. 6:47-49.
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`Therefore, the use of the “dialogue modules” reduces network bandwidth utilization, thereby
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`allowing efficient modification of applications running on remote devices on a network. Another
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`benefit of using “dialogue modules” is that it enables the use of design tools that facilitate their
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`development and modification. Col. 14:43-48, FIGS. 8A, 8B. These tools thus enable and
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`improve the efficiency of modifying applications.
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`28.
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`During the prosecution of the Asserted Patents, the United States Patent Examiner
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`allowed the claims because, among other things, this unique structure described and claimed in
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`the Asserted Patents was not known and would not have been obvious:
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`As Applicants pointed out in the Remarks, the prior art of record do not
`disclose and/or fairly suggest at least claimed limitations recited in such
`manners in independent claim 1 " ... an update server machine comprising a
`processor and operable for sending a terminal dialogue module to the terminal
`machine and a provider dialogue module to the service provider machine to allow
`the terminal machine and the service provider machine to conduct a dialogue
`sequence with each other []....wherein the terminal application comprises a first
`set of computer-executable instructions and a first set of code, wherein the first set
`of computer-executable instructions are able to execute directly on a terminal
`processor of the terminal machine, and wherein the first set of code is not able to
`execute directly on the terminal processor; ... wherein the first set of updated code
`adapts the terminal application to use a second sequence of prompts and a second
`sequence of data entries for the terminal machine's portion of a modified dialogue
`sequence with the service provider machine...
`These claimed limitations are not present in the prior art of record and
`would not have been obvious, thus all pending claims are allowed.
`Exhibit F [’571 FH, Notice of Allowability, dated July 11, 2013, at Examiner’s Statement of
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`Reasons for Allowance] (emphasis added).
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`FIRST CLAIM FOR RELIEF
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`Infringement of the ’571 patent
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`29.
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`30.
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`S3G refers to and incorporates herein by reference the preceding paragraphs.
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`Defendants, by the acts complained of herein, and by making, using, selling,
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`offering for sale, and/or importing in the United States, including in the Western District of
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`Texas, instrumentalities embodying the invention, have in the past, do now, and continue to
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`infringe the ’571 patent directly, contributorily and/or by inducement, literally and/or under the
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`doctrine of equivalents, in violation of 35 U.S.C. § 271.
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`31.
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`At least since the filing of this complaint, Defendants have had actual knowledge
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`of the ’571 patent.
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`32.
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`On information and belief, Defendants have directly infringed one or more claims
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`of the ’571 patent by making, using, importing, supplying, selling, or offering for sale the
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`Accused Instrumentalities. By doing so, Defendants have directly infringed at least claim 2 of
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`the ’571 patent.
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`33.
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`Defendants provide a system for modifying a terminal machine and a service
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`provider machine ("Accused system").
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`34.
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`The Accused system includes an update server machine (e.g., a smart phone or
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`other computing device accessing the Defendants system) comprising a processor and operable
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`for sending a terminal dialogue module (e.g., terminal machine portion of a Trip Board) to the
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`terminal machine (e.g., an Android smart phone or other Android computing device running the
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`Defendants app) and a provider dialogue module (e.g., service provider machine portion of a
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`Trip Board) to the service provider machine (e.g., Defendants server) to allow the terminal
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`machine (e.g., an Android smart phone or other Android computing device running the
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`Defendants app) and the service provider machine (e.g., Defendants server) to conduct a
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`dialogue sequence (e.g., series of prompts and corresponding user data entries) with each other.
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`The Accused system includes an update server machine (e.g., a smart phone or other computing
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`device accessing the Defendants system) comprising a processor. Alternatively, the Accused
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`system includes an update server machine (e.g., Defendants server) comprising a processor. One
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`of ordinary skill would understand that smart phones or other computing devices necessarily
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`comprise a processor, e.g., to run the operating system, applications, etc. The Accused system
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`includes an update server machine (e.g., a smart phone or other computing device accessing the
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`Accused system) that is operable for sending a terminal dialogue module (e.g., terminal machine
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`portion of a Trip Board) to the terminal machine (e.g., an Android smart phone or other Android
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`computing device running the Defendants app). Alternatively, the Accused system includes an
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`update server machine (e.g., Defendants server) that is operable for sending a terminal dialogue
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`module (e.g., terminal machine portion of a Trip Board) to the terminal machine (e.g., an
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`Android smart phone or other Android computing device running the Defendants app (terminal
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`application)). The Accused system can be accessed from any device, including PCs, Android
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`and iOS tablets, and Android and iOS phones. Therefore, these and other devices that can access
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`the Accused system constitute update server machine, which is a computing device capable of
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`sending one or more dialogue modules. For example, without limitation, a dialogue module is
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`sent from a user’s device accessing the Accused system to the Defendants server. The
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`Defendants server then sends information to the Defendants app. On information and belief, the
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`format of the information that is sent from the Defendants server to the Defendants app is, for
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`example, JSON. The Accused system includes an update server machine (e.g., a smart phone or
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`other computing device accessing the Accused system) that is operable for sending a provider
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`dialogue module (e.g., service provider machine portion of a Trip Board) to the service provider
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`machine (e.g., Defendants server). This is done using, for example, HTTP. For example,
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`without limitation, after receiving the respective dialogue module, users can view Trip Boards.
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`For example, without limitation, after receiving a respective dialogue module, a user will be
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`prompted to edit, delete or share one or more Trip Boards. In response to these prompts, the user
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`selects the appropriate data entry (e.g., button). Thereafter, the user is provided additional
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`prompts. Alternatively, the Accused system includes an update server machine (e.g., Defendants
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`server) that is operable for sending a provider dialogue module (e.g., service provider machine
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`portion of a Trip Board) to the service provider machine (e.g., Defendants server).
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`35.
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`The Accused system includes a terminal machine (e.g., an Android smart phone
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`or other Android computing device running the Defendants app) that is configured to run a
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`terminal application (e.g., Defendants app for Android) that conducts the terminal machine’s
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`portion of the dialogue sequence (e.g., series of prompts and corresponding user data entries)
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`with the service provider machine (e.g., Defendants server). The terminal application conducts
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`the terminal machine's portion of the dialogue sequence with the service provider machine
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`because, for example, without limitation, using the Defendants app, a user is able to review, edit
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`and delete a Trip Board. The user is prompted to edit or update the Trip Board. This
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`information is necessarily communicated to the Defendants server because, for example, without
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`limitation, it must be stored and available to the user, including in the future or to retrieve the
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`latest list of homes within that Trip Board. The terminal application is operable for displaying a
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`prompt in a first sequence of prompts and accepting a user data entry in an associated first
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`sequence of user data entries as explained herein, including above. The Accused system includes
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`a terminal application (e.g., Defendants app for Android), and one of ordinary skill would
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`understand that the Defendants app for Android comprises a first set of computer executable
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`instructions and a first set of code, wherein the first set of computer-executable instructions are
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`able to execute directly on a terminal processor of the terminal machine, and wherein the first set
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`of code is not able to execute directly on the terminal processor. For example, without limitation,
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`the Android Runtime (ART) comprises computer executable instructions that are able to execute
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`directly on a terminal processor, while the app’s bytecode is not able to execute directly on the
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`terminal processor.
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`36.
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`The Accused system includes a service provider machine (e.g., Defendants
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`server) that is configured to run a provider application (e.g., Defendants server application) that
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`conducts the service provider machine's portion of the dialogue sequence (e.g., series of prompts
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`and corresponding user data entries) with the terminal machine. As explained herein, user data
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`entries (corresponding to the prompts) are communicated from the terminal application on the
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`terminal machine to the provider application on the service provider machine. The Accused
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`system includes a provider application (e.g., Defendants server application, which, upon
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`information and belief, is, for example, a Java application), and one of ordinary skill would
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`understand that the Defendants server application comprises a second set of computer-executable
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`instructions and a second set of code, wherein the second set of computer-executable instructions
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`are able to execute directly on a provider processor of the service provider machine, and wherein
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`the second set of code is not able to execute directly on the provider processor. For example,
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`without limitation, the Java platform, including the JVM engine, that manages the execution of
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`the Java program comprises computer-executable instructions which are able to execute directly
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`on a provider processor, while the Java program is not able to execute directly on the provider
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`processor.
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`37.
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`In the Accused system, the terminal dialogue module (e.g., terminal machine
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`portion of a Trip Board) modifies the first set of code to produce a first set of updated code
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`wherein the first set of updated code adapts the terminal application to use a second sequence of
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`prompts and a second sequence of data entries for the terminal machine's portion of a modified
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`dialogue sequence (e.g., series of prompts and corresponding user data entries) with the service
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`provider machine. As explained above, when a user inputs a Trip Board using the Accused
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`system, information is communicated to the Defendants app (terminal application on the terminal
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`machine). As also explained above, without limitation, the dialogue sequence (e.g., series of
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`prompts and corresponding user data entries) is evidenced in the one or more prompts associated
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`with a Trip Board. In response, the user selects the appropriate data entry (e.g., button), e.g.,
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`edit, delete, etc. Additional prompts and associated data entries include, for example, without
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`limitation, selecting one or more home results and their associated information, including the
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`ability to make a booking. At least a portion of the information is necessarily stored on the
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`terminal machine because, for example, without limitation, the Trip Board is necessarily
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`available, even later, on the user’s device and allows the user to select a Trip Board, even at a
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`later time. Therefore, the terminal dialogue module modifies the first set of code to produce a
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`first set of updated code. The first set of updated code adapts the terminal application to use a
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`second sequence of prompts and a second sequence of data entries for the terminal machine's
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`portion of a modified dialogue sequence with the service provider machine. For example,
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`without limitation, as already explained herein, a second sequence of prompts and a second
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`sequence of data entries is demonstrated when new Trip Boards are added or updated, and they
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`appear on the user’s device. This necessarily represents a modified dialogue sequence with the
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`service provider machine. In the Accused system, the provider dialogue module (e.g., service
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`provider machine portion of a Trip Board) modifies the second set of code to produce a second
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`set of updated code wherein the second set of updated code adapts the provider application to use
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`a second sequence of prompts and a second sequence of data entries for the service provider
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`machine's portion of the modified dialogue sequence with t