Case 6:20-cv-00612-ADA Document 1 Filed 07/06/20 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`VIRTUAL IMMERSION
`TECHNOLOGIES LLC,
`
`Plaintiff,
`
`v.
`
`TOYOTA MOTOR CORPORATION AND
`TOYOTA MOTOR NORTH AMERICA,
`INC.
`
`
`Defendants.
`
`
`
`Civ. No. 6:20-cv-612
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` JURY TRIAL DEMANDED
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff Virtual Immersion Technologies LLC (“VIT” or “Plaintiff”), by and through its
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`attorneys, hereby alleges for its Complaint on personal knowledge as to its own activities and on
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`information and belief as to all other matters, as follows:
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`NATURE OF THE ACTION
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`1. This is an action for patent infringement arising under the Patent Laws of the
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`United States, 35 U.S.C. § 1 et seq.
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`THE PARTIES
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`2. Plaintiff Virtual Immersion Technologies LLC is a limited liability company
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`organized under the laws of the State of Texas.
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`3. VIT is the current assignee of United States Patent No. 6,409,599 (“the ’599
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`patent” or “the patent-in-suit.”) On June 25, 2002, the United States Patent and Trademark
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`Office duly and legally issued the ’599 patent. The ’599 patent is titled “Interactive Virtual
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`Reality Performance Theater Entertainment System.” The application leading to the ’599 patent
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`was filed on July 19, 1999. A true and correct copy of the ’599 patent is attached hereto as
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`Exhibit A.
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`4. On or around February 24, 2016, VIT acquired 100% ownership of all right, title
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`and interest in the patent-in-suit, including the right to bring patent enforcement actions for
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`damages accruing prior to February 24, 2016. The assignment to VIT of ownership of the
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`patent-in-suit was recorded with the United States Patent & Trademark Office (“PTO”) on or
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`around August 26, 2016.
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`5. Defendant Toyota Motor Corporation (“Toyota JPN”) is a foreign corporation
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`having its principal place of business at 1 Toyota-Cho, Toyota City, Aichi Prefecture, Japan.
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`Toyota JPN makes use of virtual and augmented reality technologies worldwide, including in the
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`United States.
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`6. Defendant Toyota Motor North America, Inc. (“Toyota NA”) is a corporation
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`organized and existing under the laws of the State of California, with its principal place of
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`business at 6565 Headquarters Dr. Plano, TX 75024. Upon information and belief, Toyota NA is
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`a wholly owned subsidiary of Toyota NA. Toyota NA has a regular and established place of
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`business in this District located at 1 Lone Star Pass San Antonio, TX 78264 and has committed
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`and continues to commit acts of infringement within this District.
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`7.
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`Toyota NA is a subsidiary of Toyota JPN. Both defendants, Toyota NA and
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`Toyota JPN (collectively referred to as “Toyota” or “Defendants”) act in concert regarding the
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`allegations set forth in this Complaint and, therefore, the conducts described herein are fairly
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`attributable to either or both entities.
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`JURISDICTION AND VENUE
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`8.
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`This is an action for patent infringement arising under the patent laws of the
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`United States, Title 35, United States Code. Jurisdiction as to these claims is conferred on this
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`Court by 35 U.S.C. §§ 1331 and 1338(a).
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`9. Venue with respect to Defendant Toyota JPN is proper in this District under 28
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`U.S.C. § 1391(c)(3) because Defendant Toyota JPN is not a resident of the United States, and
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`that venue is proper as to a foreign defendant in any district. See In re HTC Corp., Appeal No.
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`2018-130 (Fed. Cir. 2018). Also, under 28 U.S.C. § 1391(b)(2), venue is proper because Toyota
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`JPN imports, sells and offers to sell products and services throughout the United States,
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`including in this District, and introduces products and services into the stream of commerce and
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`effectuates these sales knowing that the products and services would be sold in this District and
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`elsewhere in the United States.
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`10. This Court has personal jurisdiction over Toyota JPN. Toyota JPN is amenable to
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`service of summons for this action. Defendant Toyota JPN has sought protection and benefit
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`from the laws of the State of Texas by maintaining one or more of its United States affiliates
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`(Defendant Toyota NA) in this District and/or by placing infringing products and services into
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`the stream of commerce through an established distribution channel with the awareness and/or
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`intent that they will be purchased by consumers in this District.
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`11. Toyota JPN – directly or through intermediaries (including distributors, retailers,
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`and others), subsidiaries, alter egos, and/or agents – ships, distributes, offers for sale, and/or sells
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`its products and services in the United States and this District. Toyota JPN has purposefully and
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`voluntarily placed one or more of its infringing products into the stream of commerce with the
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`awareness and/or intent that they will be purchased by consumers in this District. Toyota JPN
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`knowingly and purposefully ships infringing products into and within this District through an
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`established distribution channel. These infringing products have been and continue to be
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`purchased by consumers in this District. Upon information and belief, through those activities,
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`Toyota JPN has committed the tort of patent infringement in this District.
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`12. On information and belief, Defendant Toyota JPN is subject to this Court’s
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`general and specific personal jurisdiction because Toyota JPN has sufficient minimum contacts
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`within Texas and this District, because Defendant Toyota JPN purposefully availed itself of the
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`privileges of conducting business in Texas and in this District, because Defendant Toyota JPN
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`regularly conducts and solicits business within Texas and within this District, and because
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`Plaintiff’s causes of action arise directly from Defendant Toyota JPN’s business contacts and
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`other activities in Texas and this District. Having purposefully availed itself of the privilege of
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`conducting business within this District, Defendant Toyota JPN should reasonably and fairly
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`anticipate being brought into court here.
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`13. Regarding Defendant Toyota NA, venue is proper within this District under 28
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`U.S.C. § 1400(b) because, on information and belief, Toyota NA maintains a regular and
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`established place of business in this District and has committed infringing acts in this District.
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`14. Upon information and belief, Toyota NA is subject to this Court’s general and
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`specific personal jurisdiction because it has sufficient minimum contacts within the State of
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`Texas and this District, pursuant to due process and/or the Texas Long-Arm Statute, because
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`Defendant Toyota NA purposefully availed itself of the privileges of conducting business in the
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`State of Texas and in this District, because Toyota NA regularly conducts and solicits business
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`within the State of Texas and within this District, and because Plaintiff’s causes of action arise
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`directly from Toyota NA’s business contacts and other activities in the State of Texas and this
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`District. Having purposefully availed itself of the privilege of conducting business within this
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`District, Toyota NA should reasonably and fairly anticipate being brought into court here.
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`15. Upon information and belief, Defendant Toyota NA maintains at least one regular
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`and established place of business in this District: at least part or all of a Toyota Logistics Center
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`and a Toyota Motor Manufacturing facility in this District (the “Toyota Facilities.”) (See source:
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`https://www.toyota.com/usa/operations/map.html#!/USTX; last accessed and downloaded July 6,
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`2020.) The Toyota Facilities are located at 1 Lone Star Pass, Sant Antonio, TX 78264 within
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`Bexar County in this District. (Id.)
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`16. Currently, the Toyota Facilities are publicly associated with Toyota. (Source:
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`https://www.toyota.com/usa/operations/map.html#!/tmmtx, last accessed and downloaded July 6,
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`2020.) Based at least on these facts, the Toyota Facilities in San Antonio, Texas are believed to
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`be a regular and established place of business that is associated directly with Toyota.
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`17.
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`Toyota has committed and continues to commit acts of infringement within the
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`state of Texas, as alleged herein.
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`18. Toyota is utilizing virtual reality to “play a significant role in reducing cost,
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`improving quality, time to market, building ever better cars and putting smiles on our customers
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`faces.” (Source: https://www.pny.com/File%20Library/Case%20Studies/Toyota-Case-
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`Study.pdf, last accessed and downloaded July 6, 2020.) For example, Toyota realizes these
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`benefits through the use of VR/AR headsets which has virtual reality functionality. (Source: See
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`id.; and see also https://www.wardsauto.com/technology/toyota-tilts-toward-future-maker-lab,
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`https://design.toyota-forklifts.eu/designing-in-virtual-reality/; and https://virtualreality.esi-
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`group.com/our-profile/our-clients-across-world; all last accessed and downloaded July 6, 2020.)
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`On information and belief, Toyota uses and develops these virtual reality technologies within the
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`state of Texas and this District. (Source: See
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`https://www.pny.com/File%20Library/Case%20Studies/Toyota-Case-Study.pdf;
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`https://www.wardsauto.com/technology/toyota-tilts-toward-future-maker-lab,
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`https://design.toyota-forklifts.eu/designing-in-virtual-reality/; and https://virtualreality.esi-
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`group.com/our-profile/our-clients-across-world, last accessed and downloaded July 6, 2020.)
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`Specifically, Toyota states that its VR/AR solutions are to be used within its manufacturing
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`plants as well. (See source: https://www.wardsauto.com/technology/toyota-tilts-toward-future-
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`maker-lab.) Toyota maintains its Toyota Motor Manufacturing facility, a major manufacturing
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`plant, within this District. Therefore, upon information and belief, Toyota makes use of these
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`technologies within this District.
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`19. Therefore, because Toyota emphasizes the need and critical use of virtual
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`technologies for its business, uses and develops these technologies within this District, and
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`maintains its presence in this District through its Toyota Facilities, Toyota has committed and
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`continues to commit acts of infringement within the state of Texas and this District.
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`20. As previously stated, Defendants currently use virtual and augmented reality
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`systems. (https://design.toyota-forklifts.eu/designing-in-virtual-reality/, last accessed and
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`downloaded July 6, 2020.) This technology includes an immersive virtual reality environment
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`where participants and live performers can interact with each other and the environment via input
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`and output devices for the performers and the participants. (See VIT’s Claim Chart for claim 9
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`of the ʼ599 patent, Ex. B at 1-11.)
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`21. As detailed in the paragraphs below, Defendants utilize a virtual reality system
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`and practice method for participants and performers to interact in an immersive virtual reality
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`environment, which meets all the features of the asserted claim. (Id. at 1-11.)
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`22.
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`The Defendants’ method includes providing at least one performer input and
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`output devices in electronic communication with the virtual environment and one or more
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`participant input and output devices in electronic communication with the virtual environment.
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`(Id. at 3-8.)
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`23. Defendants’ method provides the virtual environment, which includes a video
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`image of one or more live performers with audio communication between the one or more live
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`performers and one or more participants. (Id. at 8-9.)
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`24. In the Defendants’ method, the one or more participants interact with the one or
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`more live performers and the virtual environment resulting in an experience partially controlled
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`by the one or more participants using an input device. (Id. at 9-11.)
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`25. Defendants have derived substantial revenues from its infringing acts, including
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`those of Toyota occurring within Texas, including in this District.
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`26. Toyota NA is subject to the Court’s personal jurisdiction at least due to its
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`utilization of the virtual reality system within Texas, including in this District.
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`27. Toyota has committed such purposeful acts or transactions in Texas and this
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`District such that it reasonably should know and expect that it could be haled into court in this
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`State because of such activities.
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`28. As detailed in the paragraphs below, Toyota supports the creation, maintenance
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`and utilization of an immersive virtual reality system and practice method, which permits live
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`performers and participants to interact with each other and the environment in the United States,
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`including those infringing actions of Toyota occurring within the state of Texas, including in this
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`District.
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`29. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a).
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`30. Venue is proper in this district under 28 U.S.C. § 1400(b) with respect to
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`Defendant Toyota NA. Defendant Toyota NA maintains a regular and established place of
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`business in this District and has committed infringing acts in this District.
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`31. For the above reasons, personal jurisdiction exists and venue is proper in this
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`Court for Defendants.
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`PATENT INFRINGEMENT OF UNITED STATES PATENT NO. 6,409,599
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`COUNT I
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`32. Plaintiff incorporates the above paragraphs herein by reference.
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`33. The ’599 patent relates to a system and practice method in which participants
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`interact with a computerized environment in addition to live and/or pre-recorded performers.
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`(See Ex. A at 1:20-23.)1 The ’599 patent describes and enables immersive interactive virtual
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`reality computer systems in which participants interact with a virtual reality environment and
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`live performers using a variety of immersion and input devices.” (Id. at 1:23-26.)
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`34. The claims of the ’599 patent are directed to tangible embodiments. Claim 9, for
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`example, is a method claim, which clearly requires providing several input/output devices in
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`electronic communication with an immersive virtual reality environment. (Id. at 18:61-20:12.)
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`35. The claims of the ’599 patent are directed at providing a unique computing
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`solution that addresses a problem particular to computerized virtual reality systems—providing
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`an immersive interactive virtual reality system in which there exists three-way communication
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`among and between participants, live performers and the virtual reality environment. (Id. at
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`3:24-27.)
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`1 Citations to patents in this Complaint refer to columns and lines within columns of any cited
`patent. For example, the citation referenced by this footnote refers to column 1, at lines 20
`through 23, in the ’599 patent.
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`36. Providing an immersive interactive virtual reality system with three-way
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`communication in the manner claimed in the ’599 patent solved new challenges over the
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`techniques and systems known in the art at the time. Thus, the claims of the ’599 patent contain
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`inventive concepts, being both novel and unconventional, which are sufficient to render the ’599
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`patent claims to be patent-eligible.
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`37. Prior to the priority date of the ’599 patent, in systems, such as traditional virtual
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`reality systems, figures or objects not controlled by participants moved autonomously or, if a
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`participant had an opportunity to interact with such objects in the virtual reality environment, the
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`objects were limited to computer generated images and not live performers. (Id. at 1:57-67.)
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`38. Groups of participants have been entertained by graphically enhanced performers
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`on stage or television. However, these instances occurred through non-immersion mediums
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`without the enhancements of immersion-type devices or methods. (Id. at 2:5-9.)
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`39. Early entertainment systems, which allowed participants to interact with a host
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`and an environment using some input device, did not operate within an immersive virtual reality
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`environment and therefore lacked its immersive effects and their impact on participants. (Id. at
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`2:40-47.)
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`40. The ʼ599 patent overcame these disadvantages by, for example, describing and
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`enabling a system and method for delivering information “which provides three-way immersive
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`interactive communication amongst and between” participants, an immersive environment and
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`live performers. (Id. at 2:55-57.)
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`41. The inventors of the claimed invention in the ’599 patent changed the focus from
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`an interaction between individual participants and computer-generated graphical objects within a
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`virtual reality environment to a three-way communication amongst and between participants, live
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`or pre-recorded performers, and an immersive virtual reality environment. (Id. at 3:11-17.)
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`The inclusion of three-way communication results in a synergistic effect, which creates an
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`unparalleled experience. (Id. at 3:18-22.)
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`42. Furthermore, the claimed invention of the ’599 patent represents an intrinsic
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`improvement to the underlying computer technology involved. The claimed system includes a
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`variety of audio and video components. (See, e.g., claim 1 of the ’599 patent.) The variety of
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`audio and video components enable innovative mixing and switching techniques which allows
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`the system to present to each of the participants a virtual reality environment in which a live
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`representation of the performers is superimposed within the environment. (Id. at 4:5-9.) The
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`participants are able to view and interact with a novel display of both graphical data and live
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`representations for an exciting experience. (Id. at 4:9-12.)
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`43.
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`The inventors of the ’599 patent took considerable personal risks to nurture and
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`prove out the technology systems described in the ’599 patent, contributing substantially to
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`today’s virtual reality industry explosion.
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`44.
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`The inventors of the ’599 patent have utilized the technology described by the
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`’599 patent for more than ten years, shipping virtual reality systems to five continents and
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`entertaining or educating an estimated 30 million people worldwide with their immersive virtual
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`reality live theater attractions and promotions.
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`45.
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`The virtual reality theater technology created by the inventors has been
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`recognized and awarded on an international scale, the products winning “Best New Product” and
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`“Best of Show” at the International Association of Amusement Parks and Attractions global
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`convention in Atlanta in November 2000, and again for ‘Best of Show’ in 2002 in Orlando, as
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`well as national awards for graphics and creativity in the Print Media industry. The products and
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`concepts have garnered dozens of feature articles in news media promoting clients and their
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`products in a variety of industries.
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`46.
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`The inventors of the ’599 patent continue to have a direct interest in activities
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`related to the ’599 patent, working closely with Plaintiff to identify and evaluate entities making
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`use of the technology claimed by the ’599 patent without permission or license thereto.
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`47.
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`The inventions of the ’599 patent resolve technical problems related to virtualized
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`interactive technology. For example, the inventions allow parties to interact in a virtual
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`environment in real time with one or more live performers and participants, which, on
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`information and belief, is exclusively implemented using computer technology.
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`48.
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`The claims of the ’599 patent do not merely recite the performance of some
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`method known from the pre-Internet world along with the requirement to perform it on the
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`Internet. Instead, the claims of the ’599 patent recite inventive concepts that are rooted in
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`computerized virtual reality technology, and overcome problems specifically arising in the realm
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`of computerized virtual reality technologies.
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`49.
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`The claims of the ’599 patent recite an invention that is not merely the routine or
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`conventional use of computerized communication technology. Instead, the invention makes it
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`possible to interact with one or more live performers and/or participants in a virtualized
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`environment, which does not require the physical presence of either the one or more performers,
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`or participants in order for such interactions to take place. The ’599 patent claims thus specify
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`how communication input, output, and system devices are manipulated to yield a virtual,
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`interactive experience controlled in part by one or more participants.
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`50.
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`The technology claimed in the ’599 patent does not preempt all ways of using
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`interactive communications technology, nor preempt the use of any well-known communications
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`technology, nor preempt any other well-known or prior art technology.
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`51. The ʼ599 patent claims are not directed to any “method of organizing human
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`activity,” “fundamental economic practice long prevalent in our system of commerce,” nor are
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`any of the claims “a building block of the modern economy.”
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`52. The ʼ599 patent does not take a well-known or established business method or
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`process and “apply it to a general purpose computer.” Instead, the specific systems and
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`processes described in the ʼ599 patent have no direct corollary to a process that predates the
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`advent of the Internet.
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`53. The ʼ599 patent claims are directed toward a solution rooted in computer
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`technology and uses technology, unique to computers and networks, to overcome a problem
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`specifically arising in the realm of computerized virtual reality technologies.
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`54. The ʼ599 patent claims are not directed at a mere mathematical relationship or
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`formula.
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`55. The ʼ599 patent claims cannot be performed by a human, in the human mind, or
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`by pen and paper.
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`56.
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` Accordingly, each claim of the ’599 patent recites a combination of elements
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`sufficient to ensure that the claim in practice amounts to significantly more than a patent on an
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`ineligible concept.
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`57. Upon information and belief, Toyota directly infringes and continues to directly
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`infringe at least claim 9 of the ’599 patent, in the United States, under 35 U.S.C. § 271(a) by
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`making, using, selling, offering to sell, importing and/or providing and/or causing to be used an
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`interactive, real time, virtual reality systems system and its practice method (See Toyota is
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`utilizing augmented reality to benefit from the ability to “play a significant role in reducing cost,
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`improving quality, time to market, building ever better cars and putting smiles on our customers
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`faces.” (Source: https://www.pny.com/File%20Library/Case%20Studies/Toyota-Case-
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`Study.pdf, last accessed and downloaded July 6, 2020), along with related systems and software
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`for access and use of such systems and methods (the “Accused Instrumentalities”) as in claim 9
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`of the ’599 patent. (See VIT’s Claim Chart for claim 9 of the ’599 patent, Ex. B at 1-11.)
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`58. On information and belief, Defendants Toyota are a for-profit organization with
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`revenues of approximately $270 billion U.S.D. per year. Moreover, Defendants, its employees
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`and/or agents make, use, sell, offer to sell, import, and/or provide and/or cause to be used the
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`Accused Instrumentalities for Defendant’s partners and customers, leading to direct or indirect
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`revenues and profit. As one example of indirect profit, Toyota utilizes the system to reduce costs
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`by increasing the speed of design and project time. On information and belief, without the
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`availability of infringing tools such as the Accused Instrumentalities, Defendants would be at a
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`disadvantage in the marketplace and would generate less revenue and profit overall.
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`59.
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`In particular, claim 9 of the ’599 patent generally recites a method of providing
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`interactive communications between participants and performers comprising the steps of
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`providing an immersive virtual reality environment; providing performer and participant input
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`and output devices in communication with the immersive virtual reality environment; having the
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`live performer interact with the participant and immersive virtual reality environment by
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`including a live or prerecorded image of the live performer and audio communication between
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`the live performer and the participant or between the participant and live performer or both;
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`having the participant interact with the live performer producing an experience controlled by the
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`participant and participant input device. (Id. at 3-11.)
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`60. Toyota provides a method of providing interactive communications between
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`participants and performers. (Id. at 3-4.)
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`61. The method provided by Toyota includes providing an immersive virtual reality
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`environment. (Id. at 4-5.)
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`62. Toyota’s method also includes providing at least one performer input device in
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`electronic communication with said immersive virtual reality environment. (Id. at 5-6.)
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`63. Toyota’s method further includes providing at least one participant input device in
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`electronic communication with said immersive virtual reality environment. (Id. at 6.)
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`64. Additionally, Toyota’s method includes providing at least one performer output
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`device in electronic communication with said immersive virtual reality environment. (Id. at 7.)
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`65. Defendants’ method also includes providing at least one participant output device
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`in electronic communication with said immersive virtual reality environment. (Id. at 7-8.)
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`66. The method provided by Toyota also includes having at least one live performer
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`interact with at least one participant and said immersive virtual reality environment, by including
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`with said virtual reality environment a live or prerecorded video image of said at least one live
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`performer and audio communication between said at least one live performer and said at least
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`one participant, or between said at least one participant and said at least one live performer, or
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`both. (Id. at 8-9).
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`67. Toyota’s method also includes having at least one participant interact with at least
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`one such live performer and said immersive virtual reality environment, thereby resulting in an
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`experience which is in part controlled by said at least one participant and said at least one
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`participant input device. (Id. at 9-11.)
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`68. Defendants were made aware of the ’599 patent and its infringement thereof at
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`least as early as the filing and service of this Complaint. Despite Plaintiff’s notice to Toyota by
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`this Complaint regarding the ʼ599 patent, the Defendants continue to infringe the ʼ599 patent.
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`69. Upon information and belief, since at least the time it received notice by this
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`Complaint, Toyota’s infringement has been and continues to be willful.
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`70. Plaintiff VIT has been harmed by each of Toyota’s infringing activities with
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`respect to the ʼ599 patent.
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`71. VIT reserves the right to modify its infringement theories as discovery progresses
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`in this case. It shall not be estopped for purposes of its infringement contentions or its claim
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`constructions by the claim charts it provides with this Complaint. VIT intends the claim chart
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`(Exhibit B) for the ’599 patent to satisfy the notice requirements of Rule 8(a)(2) of the Federal
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`Rule of Civil Procedure. The claim chart is not VIT’s preliminary or final infringement
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`contentions or preliminary or final claim construction positions.
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`JURY DEMAND
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`Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff demands a trial by
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`jury on all issues triable as such.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff demands judgment for itself and against Defendants as follows:
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`A.
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`B.
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`An adjudication that Defendants have infringed the ’599 patent;
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`An award of damages to be paid by Defendants adequate to compensate Plaintiff
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`for Defendants’ past infringement of the ’599 patent, and any continuing or future infringement
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`Case 6:20-cv-00612-ADA Document 1 Filed 07/06/20 Page 16 of 16
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`through the date such judgment is entered, including interest, costs, expenses and an accounting
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`of all infringing acts including, but not limited to, those acts not presented at trial;
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`C.
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`A declaration that this case is exceptional under 35 U.S.C. § 285, and an award of
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`Plaintiff’s reasonable attorneys’ fees; and
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`D.
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`An award to Plaintiff of such further relief at law or in equity as the Court deems
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`just and proper.
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`Dated: July 6, 2020
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`DEVLIN LAW FIRM LLC
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`
`
`/s/ Alex Chan
`Timothy Devlin (pro hac vice to be filed)
`tdevlin@devlinlawfirm.com
`Patrick R. Delaney (pro hac vice to be filed)
`pdelaney@devlinlawfirm.com
`Cory Edwards (pro hac vice to be filed)
`cedwards@devlinlawfirm.com
`1526 Gilpin Ave.
`Wilmington, Delaware 19806
`Telephone: (302) 449-9010
`Facsimile: (302) 353-4251
`
`Attorneys for Plaintiff
`Virtual Immersion Technologies LLC
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