Case 6:20-cv-00736-ADA Document 1 Filed 08/14/20 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Pixmarx IP LLC,
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` Plaintiff,
`v.
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`TikTok Inc.,
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` Defendant.
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`
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`
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`
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`
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`Civil Action No. 6:20-cv-736
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`Jury Trial Demanded
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff Pixmarx IP LLC files this Complaint against TikTok Inc. for infringement of
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`
`
`
`
`
`
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`U.S. Patent No. 9,792,662 (“the ’662 patent”), U.S. Patent No. 10,102,601 (“the ’601 patent”),
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`and U.S. Patent No. 10,489,873 (“the ’873 patent”). The’662 patent, ’601 patent, and ’873
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`patent are referred to collectively as the “patents-in-suit.”
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`THE PARTIES
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`1.
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`Plaintiff Pixmarx IP LLC (“Pixmarx”) is a Texas limited liability company with
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`its principal place of business located in Dallas, Texas.
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`2.
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`Defendant TikTok Inc. (“TikTok) is a California corporation with a regular and
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`established place of business in Austin, Texas. TikTok may be served with process through its
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`registered agent, CT Corporation System, 1999 Bryan Street, Suite 900, Dallas, Texas 75201.
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`3.
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`TikTok is a video-sharing social networking service owned by ByteDance, a
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`Beijing-based Internet technology company founded in 2012. TikTok’s mobile application (the
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`“TikTok app”) was launched in 2017 for iOS and Android in most markets outside of mainland
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`China and is used to create short music, lip-sync, dance, comedy and talent videos. On
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`information and belief, the TikTok app has been widely used across the United States since, at
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`1
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`Case 6:20-cv-00736-ADA Document 1 Filed 08/14/20 Page 2 of 15
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`least, August 2018, and the TikTok servers that serve the United States market are located in this
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`country. As of August 2020, TikTok has surpassed 1 billion users worldwide, and the TikTok
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`app has been downloaded more than 80 million times in the United States alone.
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`4.
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`The TikTok app allows users to create short videos of themselves, often featuring
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`music in the background. The videos can be sped up, slowed down and/or edited with a filter.
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`Users can also add their own sound on top of the background music. To create a music video
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`with the TikTok app, users can choose background music from a wide variety of music genres,
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`edit with a filter, and record a 15-second video with speed adjustments before uploading it to
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`share with others on TikTok or other social media platforms.
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`JURISDICTION AND VENUE
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`5.
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`This action arises under the patent laws of the United States, 35 U.S.C. § 101, et
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`seq. This Court’s jurisdiction over this action is proper under the above statutes, including 35
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`U.S.C. § 271, et seq., 28 U.S.C. § 1331 (federal question jurisdiction) and § 1338 (jurisdiction
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`over patent actions).
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`6.
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`This Court has personal jurisdiction over TikTok in accordance with due process
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`and/or the Texas Long Arm Statute because TikTok does business in this state by, among other
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`things, “recruit[ing] Texas residents, directly or through an intermediary located in this state, for
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`employment inside or outside this state.” TEX. CIV. PRAC. & REM. CODE § 17.042(3):
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`2
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`Case 6:20-cv-00736-ADA Document 1 Filed 08/14/20 Page 3 of 15
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`See https://careers.tiktok.com/; see also, e.g., Exs. 1, 2.
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`7.
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`Further, this Court has personal jurisdiction over TikTok because TikTok has
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`engaged, and continues to engage, in continuous, systematic, and substantial activities within this
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`state, including the substantial marketing and sale of products and services within this state and
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`this District. Indeed, this Court has personal jurisdiction over TikTok because TikTok has
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`committed acts giving rise to Pixmarx’s claims for patent infringement within and directed to
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`this District, has derived substantial revenue from its goods and services provided to individuals
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`in this state and this District, and, upon information and belief, maintains a regular and
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`established place of business in this District, including offices in Austin, Texas. See, e.g., Ex. 3,
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`4. For example, senior executives at TikTok have noted, “We have many exciting roles across
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`Ops, Training, Quality, Policy, Data, and more to fill in our Austin office,” and “The TikTok
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`Austin Office is growing fast! Check out these great new jobs to join Rebecca Sawyer in
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`building an amazing team!” Ex. 3.
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`8.
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`Relative to patent infringement, TikTok has committed and continues to commit
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`acts in violation of 35 U.S.C. § 271, and has made, used, marketed, distributed, offered for sale,
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`and/or sold infringing products and services in this state, including in this District, and otherwise
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`engaged in infringing conduct within and directed at, or from, this District. Such infringing
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`products and services, namely the TikTok app, have been and continue to be distributed to, sold,
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`and used in this District and the infringing conduct has caused, and continues to cause, injury to
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`Pixmarx, including injury suffered within this District. These are purposeful acts and
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`transactions in this state and this District such that TikTok reasonably should know and expect
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`that it could be haled into this Court because of such activities.
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`3
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`Case 6:20-cv-00736-ADA Document 1 Filed 08/14/20 Page 4 of 15
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`9.
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`Venue is proper in this District under 28 U.S.C. §§ 1391 and 1400(b) because a
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`substantial part of the events or omissions giving rise to the Pixmarx claims occurred in this
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`District, because TikTok has committed acts of infringement in this District, and because TikTok
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`has a regular and established place of business in this District. Indeed, TikTok conducts business
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`in this District, including offering to sell, selling, and distributing infringing products and
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`services to TikTok customers in this District, servicing infringing products and services in this
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`District, and/or inducing the use of infringing products and services by TikTok’s customers in
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`this District. And, upon information and belief, TikTok maintains offices in this District (see Ex.
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`3) and hires and maintains employees in this District (see Exs. 1, 2), including an Office
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`Administrator in Austin, Texas (see Ex. 4), all consistent with a substantial physical presence in
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`this District.
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`10.
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`The inventors of the patents-in-suit are Barry Crutchfield and Gary Lipps. Mr.
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`Crutchfield resides within this District in Austin, Texas. Mr. Lipps resides nearby in Mandeville,
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`Louisiana. Both are material witnesses.
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`THE PATENTS-IN-SUIT
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`11.
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`The ’662 patent is entitled, “Embedding Digital Content Within a Digital
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`Photograph During Capture of the Digital Photograph.” The ’662 patent lawfully issued on
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`October 17, 2017 and stems from U.S. Patent Application No. 15/275,166, which was filed on
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`September 23, 2016 and is a continuation of U.S. Patent Application No. 14/251,707, filed on
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`April 14, 2014. A copy of the ’662 patent is attached hereto as Ex. 5.
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`12.
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`The ’601 patent is entitled, “Embedding Digital Content Within a Digital
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`Photograph During Capture of the Digital Photograph.” The ’601 patent lawfully issued on
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`October 16, 2018 and stems from U.S. Patent Application No. 15/705,703, which is a
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`4
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`continuation of U.S. Patent Application No. 15/275,166 and was filed on September 15, 2017. A
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`copy of the ’601 patent is attached hereto as Ex. 6.
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`13.
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`The ’873 patent is entitled, “Embedding Digital Content Within a Digital
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`Photograph During Capture of the Digital Photograph.” The ’873 patent lawfully issued on
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`November 26, 2019 and stems from U.S. Patent Application No. 16/118,108, which is a
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`continuation of U.S. Patent Application No. 15/705,703 and was filed on August 30, 2018. A
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`copy of the ’873 patent is attached hereto as Ex. 7.
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`14.
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`Pixmarx is the owner of the patents-in-suit with all substantial rights, including
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`the exclusive right to enforce, sue, and recover damages for past and future infringements.
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`15.
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`The patents-in-suit arose from Mr. Crutchfield’s and Mr. Lipp’s development of
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`the Pixmarx application, which was first released via the Apple App Store in November 2013.
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`16.
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`The patents-in-suit share a specification and claim priority to U.S. Provisional
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`Patent Application Serial No. 61/966,161, which was filed on February 15, 2014.
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`17.
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`The claims of the patents-in-suit are directed to patent eligible subject matter
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`under 35 U.S.C. § 101. They are not directed to an abstract idea, and the technologies covered
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`by the claims consist of ordered combinations of features and functions that, at the time of
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`invention, were not, alone or in combination, well-understood, routine, or conventional.
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`18.
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`The specification of the patents-in-suit disclose shortcomings in the prior art and
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`then explain, in detail, the technical way the claimed inventions resolve or overcome those
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`shortcomings. See, e.g., Ex. 7 (’873 patent), at 7:7-50. For example, the patents-in-suit explain
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`that a disadvantage of prior art approaches to enhancing digital photographs was that they
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`required application of separate processes after taking a photograph (e.g., editing a label, border,
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`or special effect into a photograph after a photograph is taken). See id. at 2:9-16. The patents-
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`5
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`in-suit offer the following solution addressing disadvantages of prior art systems and methods for
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`enhancing digital photographs:
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`[E]mbodiments of the present invention are directed to displaying an embedded
`digital image (e.g., an electronic digital icon (e.g., watermark), picture, text, or the
`like) within an image viewing structure (e.g., eyepiece, visual display, or the like)
`of a digital imaging device prior to and during a photograph being taken using the
`digital imaging device. Accordingly, when a user of such a digital imaging
`device takes the photograph, as-viewed visual content seen within the image
`viewing structure (i.e., the embedded digital image overlaid on to-be-
`photographed visual content) is the same as what would be a corresponding
`outputted digital file of the imaging device. In this regard, the corresponding
`outputted digital file is a ‘What You See Is What You Get (WYSIWYG)’
`representation of the as-viewed visual content within the image viewing structure
`of the imaging device when the to-be-photographed visual content is captured by
`the digital imaging device.
`
`Id. at 2:28-45; see also id. at 4:7-25.
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`19.
`
`Such solutions are reflected in the independent claims of the patents-in-suit. For
`
`example, claim 1 of the ’873 patent requires (in part):
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`maintaining said embeddable content image in a static position in said
`image viewing structure when taking a captured image by the digital imaging
`device;
`displaying in combination in said image viewing structure a combined
`visual image comprising:
`said embeddable content image in said static position displayed as a mask
`over said captured image;
`said captured image provided from said digital imaging device in real time
`when taken by the digital imaging device, the captured image selectively
`positioned relative to said embeddable content image . . . .
`
` Claim 9 of the ’601 patent requires (in part):
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`displaying in combination in said image viewing structure a combined
`visual image comprising:
`a captured image provided from said digital imaging device in real time at
`a location of taking a photograph;
`an embeddable content image provided by said wireless communication
`device, said embeddable content image displayed as a mask over said captured
`image, said embeddable content image maintained in a static position in said
`image viewing structure during the taking of the photograph . . . .
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`6
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`And claim 1 of the ’662 patent requires (in part):
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`in conjunction with displaying the user-selected embeddable content
`image on the image viewing structure, causing visual content captured in real-
`time by a digital imaging device of the digital imaging device at a current location
`thereof to be displayed on the image viewing structure in combination with the
`user-selected embeddable content image, wherein displaying the user-selected
`embeddable content image includes maintaining the user-selected embeddable
`content image at a static position within an area of the image viewing structure
`independent of the visual content that is within a field of view of the digital
`imaging device at the current location and wherein causing the visual content
`captured in real-time to be displayed on the image viewing structure in
`combination with the user-selected embeddable content image includes causing
`the user-selected embeddable content image to be displayed as a mask applied to
`the visual content that is being captured in real-time . . . .
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`The patents-in-suit also introduce the concept of providing embeddable content
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`20.
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`(e.g., an electronic digital icon, picture, text, or the like) based on a digital imaging device’s
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`location. For example, the specification discloses that “the embedded digital content is
`
`advantageously selected based on an actual location of the digital imaging device at the time
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`when the to-be-photographed visual content is captured using the digital imaging device.” See,
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`e.g., Ex. 7 (’873 patent), at 4:21-25. This concept, which is reflected (for example) in claim 2 of
`
`the ’662 patent, claim 13 of the ’601 patent, and claim 6 of the ’873 patent, was not well-
`
`understood, routine, or conventional in the field of digital photography when Mr. Crutchfield and
`
`Mr. Lipps filed U.S. Provisional Application Serial No. 61/966,161 or U.S. Patent Application
`
`No. 14/251,707.
`
`COUNT I
`INFRINGEMENT OF U.S. PATENT NO. 9,792,662
`
`Pixmarx incorporates paragraphs 1 through 20 herein by reference.
`
`This cause of action arises under the patent laws of the United States, and in
`
`21.
`
`22.
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`particular, 35 U.S.C. §§ 271, et seq.
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`23.
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`Pixmarx is the owner of the ’662 patent with all substantial rights to the ’662
`
`patent including the exclusive right to enforce, sue, and recover damages for past and future
`
`infringements.
`
`24.
`
`The ’662 patent is valid and enforceable and was duly issued in full compliance
`
`with Title 35 of the United States Code.
`
`Direct Infringement (35 U.S.C. § 271(a))
`
`25.
`
`TikTok has infringed and continues to infringe one or more claims of the ’662
`
`patent in this District and elsewhere in Texas and the United States.
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`26.
`
`TikTok has infringed and continues to infringe, either by itself or via an agent, at
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`least claims 1, 6, 12, and 16 of the ’662 patent by, among other things, making, testing and/or
`
`using the TikTok app, including (but not limited to) the TikTok app “effects” features.
`
`27.
`
`Attached hereto as Ex. 8, and incorporated herein by reference, is a claim chart
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`detailing how TikTok, and customers and end users of the TikTok App, infringe the ʼ662 patent.
`
`28.
`
`TikTok is liable for its infringements of the ’662 patent pursuant to 35 U.S.C.
`
`§ 271.
`
`Indirect Infringement (Inducement – 35 U.S.C. § 271(b))
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`TikTok has also indirectly infringed and continues to indirectly infringe one or
`
`29.
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`more claims of the ’662 patent by inducing direct infringement by TikTok customers and end
`
`users.
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`30.
`
`TikTok has knowledge of the ʼ662 patent, its infringements, and the
`
`infringements of its customers and end users based, at least, on its receipt of this Complaint.
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`31.
`
`Despite having knowledge (or being willfully blind to the fact) that use of the
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`TikTok app infringes the ’662 patent, TikTok has specifically intended, and continues to
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`Case 6:20-cv-00736-ADA Document 1 Filed 08/14/20 Page 9 of 15
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`specifically intend, for persons who acquire and use the TikTok app, including TikTok
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`customers and end users, to use the TikTok app in a way that results in infringement of the ’662
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`patent, including at least claims 1, 6, 12, and 16. Indeed, TikTok knew or should have known
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`that its actions have induced, and continue to induce, such infringement.
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`32.
`
`TikTok instructs and encourages customers and end users to use the TikTok app
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`in a manner that infringes the ’662 patent. For example, TikTok provides users with the TikTok
`
`app, and TikTok’s product support webpage (https://support.tiktok.com/en) guides users with
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`instructions on how to use the “effects” features of the TikTok app in a way that results in
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`infringement of the ’662 patent.
`
`Damages
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`33.
`
`Pixmarx has been damaged as a result of TikTok’s infringing conduct described
`
`in this Count. TikTok is, thus, liable to Pixmarx in an amount that adequately compensates it for
`
`TikTok’s infringements, which, by law, cannot be less than a reasonable royalty, together with
`
`interest and costs as fixed by this Court under 35 U.S.C. § 284. Pixmarx and, on information and
`
`belief, its predecessors-in-interest have complied with the requirements of 35 U.S.C. § 287.
`
`COUNT II
`INFRINGEMENT OF U.S. PATENT NO. 10,102,601
`
`Pixmarx incorporates paragraphs 1 through 20 herein by reference.
`
`This cause of action arises under the patent laws of the United States, and in
`
`34.
`
`35.
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`particular, 35 U.S.C. §§ 271, et seq.
`
`36.
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`Pixmarx is the owner of the ’601 patent with all substantial rights to the ’601
`
`patent including the exclusive right to enforce, sue, and recover damages for past and future
`
`infringements.
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`37.
`
`The ’601 patent is valid and enforceable and was duly issued in full compliance
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`with Title 35 of the United States Code.
`
`Direct Infringement (35 U.S.C. § 271(a))
`
`38.
`
`TikTok has infringed and continues to infringe one or more claims of the ’601
`
`patent in this District and elsewhere in Texas and the United States.
`
`39.
`
`TikTok has infringed and continues to infringe, either by itself or via an agent, at
`
`least claims 2-11, 14, and 16 of the ’601 patent by, among other things, making, testing and/or
`
`using the TikTok app, including (but not limited to) the TikTok app “effects” features.
`
`40.
`
`Attached hereto as Ex. 9, and incorporated herein by reference, is a claim chart
`
`detailing how TikTok, and customers and end users of the TikTok App, infringe the ʼ601 patent.
`
`41.
`
`TikTok is liable for its infringements of the ’601 patent pursuant to 35 U.S.C.
`
`§ 271.
`
`Indirect Infringement (Inducement – 35 U.S.C. § 271(b))
`
`TikTok has also indirectly infringed and continues to indirectly infringe one or
`
`42.
`
`more claims of the ’601 patent by inducing direct infringement by TikTok customers and end
`
`users.
`
`43.
`
`TikTok has knowledge of the ʼ601 patent, its infringements, and the
`
`infringements of its customers and end users based, at least, on its receipt of this Complaint.
`
`44.
`
`Despite having knowledge (or being willfully blind to the fact) that use of the
`
`TikTok app infringes the ’601 patent, TikTok has specifically intended, and continues to
`
`specifically intend, for persons who acquire and use the TikTok app, including TikTok
`
`customers and end users, to use the TikTok app in a way that results in infringement of the ’601
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`10
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`patent, including at least claims 2-11, 14, and 16. Indeed, TikTok knew or should have known
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`that its actions have induced, and continue to induce, such infringement.
`
`45.
`
`TikTok instructs and encourages customers and end users to use the TikTok app
`
`in a manner that infringes the ’601 patent. For example, TikTok provides users with the TikTok
`
`app, and TikTok’s product support webpage (https://support.tiktok.com/en) guides users with
`
`instructions on how to use the “effects” features of the TikTok app in a way that results in
`
`infringement of the ’601 patent.
`
`Damages
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`46.
`
`Pixmarx has been damaged as a result of TikTok’s infringing conduct described
`
`in this Count. TikTok is, thus, liable to Pixmarx in an amount that adequately compensates it for
`
`TikTok’s infringements, which, by law, cannot be less than a reasonable royalty, together with
`
`interest and costs as fixed by this Court under 35 U.S.C. § 284. Pixmarx and, on information and
`
`belief, its predecessors-in-interest have complied with the requirements of 35 U.S.C. § 287.
`
`COUNT III
`INFRINGEMENT OF U.S. PATENT NO. 10,489,873
`
`Pixmarx incorporates paragraphs 1 through 20 herein by reference.
`
`This cause of action arises under the patent laws of the United States, and in
`
`47.
`
`48.
`
`particular, 35 U.S.C. §§ 271, et seq.
`
`49.
`
`Pixmarx is the owner of the ’873 patent with all substantial rights to the ’873
`
`patent including the exclusive right to enforce, sue, and recover damages for past and future
`
`infringements.
`
`50.
`
`The ’873 patent is valid and enforceable and was duly issued in full compliance
`
`with Title 35 of the United States Code.
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`Direct Infringement (35 U.S.C. § 271(a))
`
`51.
`
`TikTok has infringed and continues to infringe one or more claims of the ’873
`
`patent in this District and elsewhere in Texas and the United States.
`
`52.
`
`TikTok has infringed and continues to infringe, either by itself or via an agent, at
`
`least claims 1-3, 7, 9-14, 17-20, and 23 of the ’873 patent by, among other things, making,
`
`testing and/or using the TikTok app, including (but not limited to) the TikTok app “effects”
`
`features.
`
`53.
`
`Attached hereto as Ex. 10, and incorporated herein by reference, is a claim chart
`
`detailing how TikTok, and customers and end users of the TikTok App, infringe the ʼ873 patent.
`
`54.
`
`TikTok is liable for its infringements of the ’873 patent pursuant to 35 U.S.C.
`
`§ 271.
`
`Indirect Infringement (Inducement – 35 U.S.C. § 271(b))
`
`TikTok has also indirectly infringed and continues to indirectly infringe one or
`
`55.
`
`more claims of the ’873 patent by inducing direct infringement by TikTok customers and end
`
`users.
`
`56.
`
`TikTok has knowledge of the ʼ873 patent, its infringements, and the
`
`infringements of its customers and end users based, at least, on its receipt of this Complaint.
`
`57.
`
`Despite having knowledge (or being willfully blind to the fact) that use of the
`
`TikTok app infringes the ’873 patent, TikTok has specifically intended, and continues to
`
`specifically intend, for persons who acquire and use the TikTok app, including TikTok
`
`customers and end users, to use the TikTok app in a way that results in infringement of the ’873
`
`patent, including at least claims 1-3, 7, 9-14, 17-20, and 23. Indeed, TikTok knew or should
`
`have known that its actions have induced, and continue to induce, such infringement.
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`58.
`
`TikTok instructs and encourages customers and end users to use the TikTok app
`
`in a manner that infringes the ’873 patent. For example, TikTok provides users with the TikTok
`
`app, and TikTok’s product support webpage (https://support.tiktok.com/en) guides users with
`
`instructions on how to use the “effects” features of the TikTok app in a way that results in
`
`infringement of the ’873 patent.
`
`Damages
`
`59.
`
`Pixmarx has been damaged as a result of TikTok’s infringing conduct described
`
`in this Count. TikTok is, thus, liable to Pixmarx in an amount that adequately compensates it for
`
`TikTok’s infringements, which, by law, cannot be less than a reasonable royalty, together with
`
`interest and costs as fixed by this Court under 35 U.S.C. § 284. Pixmarx and, on information and
`
`belief, its predecessors-in-interest have complied with the requirements of 35 U.S.C. § 287.
`
`DEMAND FOR A JURY TRIAL
`
`Pixmarx demands a trial by jury on all issues triable of right by jury pursuant to Rule 38
`
`of the Federal Rules of Civil Procedure.
`
`PRAYER FOR RELIEF
`
`Pixmarx respectfully requests that this Court enter judgment in its favor and grant the
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`following relief:
`
`(i)
`
`Judgment and Order that TikTok has directly and/or indirectly infringed one or
`
`more claims of each of the patents-in-suit;
`
`(ii)
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`Judgment and Order that TikTok must pay Pixmarx past and future damages
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`under 35 U.S.C. § 284, including supplemental damages arising from any
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`continuing, post-verdict infringement for the time between trial and entry of the
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`Case 6:20-cv-00736-ADA Document 1 Filed 08/14/20 Page 14 of 15
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`final judgment, together with an accounting, as needed, as provided under 35
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`U.S.C. § 284;
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`(iii)
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`Judgment and Order that TikTok must pay Pixmarx reasonable ongoing royalties
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`on a go-forward basis after Final Judgment;
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`(iv)
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`Judgment and Order that TikTok must pay Pixmarx pre-judgment and post-
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`judgment interest on the damages award;
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` Judgment and Order that TikTok must pay Pixmarx’s costs;
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`Judgment and Order that the Court find this case exceptional under the provisions
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`(v)
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`(vi)
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`of 35 U.S.C. § 285; and
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`(vii) Such other and further relief as the Court may deem just and proper.
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`Case 6:20-cv-00736-ADA Document 1 Filed 08/14/20 Page 15 of 15
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`Dated: August 14, 2020
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`Respectfully submitted,
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`/s/ Edward R. Nelson III
`EDWARD R. NELSON III
`STATE BAR NO. 00797142
`CHRISTOPHER G. GRANAGHAN
`STATE BAR NO. 24078585
`NELSON BUMGARDNER ALBRITTON PC
`3131 West 7th Street, Suite 300
`Fort Worth, Texas 76107
`817.377.9111 (telephone)
`903.758.7397 (facsimile)
`ed@nbafirm.com
`chris@nbafirm.com
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`TIMOTHY E. GROCHOCINSKI
`ILLINOIS BAR NO. 6295055
`PRO HAC VICE FORTHCOMING
`JOSEPH P. OLDAKER
`ILLINOIS BAR NO. 6295319
`PRO HAC VICE FORTHCOMING
`NELSON BUMGARDNER ALBRITTON PC
`15020 S. Ravinia Avenue, Suite 20
`Orland Park, Illinois 60462
`708.675.1974 (telephone)
`tim@nbafirm.com
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`COUNSEL FOR PLAINTIFF
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`15
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