Case 6:20-cv-00804-ADA Document 1 Filed 09/01/20 Page 1 of 93
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`EXPRESS MOBILE, INC.,
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`Plaintiff,
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`Defendants.
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`v.
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`GOOGLE LLC.
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`Case No. 6:20-cv-804
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`Jury Trial Demanded
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`COMPLAINT FOR PATENT INFRINGEMENT
`Plaintiff Express Mobile, Inc. (“Express Mobile” or “Plaintiff”), by its attorneys,
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`demands a trial by jury on all issues so triable and for its Complaint against Google LLC
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`(“Google” or “Defendant”) alleges the following:
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`NATURE OF THE ACTION
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`1.
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`This action arises under 35 U.S.C. § 271 for Google’s infringement of
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`Express Mobile’s United States Patent Nos. 6,546,397 (“the ’397 patent”), 7,594,168
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`(“the ’168 patent”), 9,928,044 (“the ’044 patent”), 9,471,287 (“the ’287 patent”) and
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`9,063,755 (“the ’755 patent”).
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`THE PARTIES
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`2.
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`Plaintiff Express Mobile, Inc. is an inventor-owned corporation organized under
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`the laws of the State of Delaware with a place of business at 38 Washington Street, Novato,
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`California 94947.
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`3.
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`Upon information and belief, Google LLC is located at 500 W 2nd St., Austin, TX
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`78701 and can be served through its registered agent for service at CSC - Lawyers Incorporating
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`Service California 2710 Gateway Oaks Drive Ste 150N, Sacramento, California 95833.
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`4.
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`Upon information and belief, Google is an American multinational technology
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`company that specializes in Internet-related services and products, which include online
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`advertising technologies, a search engine, cloud computing, software, and hardware.
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`JURISDICTION AND VENUE
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`5.
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`This Court has jurisdiction over the subject matter of this action pursuant to 28
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`U.S.C. §§ 1331 and 1338(a).
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`6.
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`Upon information and belief, jurisdiction and venue for this action are proper in
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`the Western District of Texas.
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`7.
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`This Court has personal jurisdiction over Defendant because Defendant has
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`purposefully availed itself of the rights and benefits of the laws of this State and this Judicial
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`District. Upon information and belief, Google resides in the Western District of Texas by
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`maintaining a regular and established place of business at 500 W 2nd St., Austin, TX 78701.
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`8.
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`This Court also has personal jurisdiction over Defendant because it has done and
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`is doing substantial business in this Judicial District, both generally and, upon information and
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`belief, with respect to the allegations in this complaint, including Defendant’s one or more acts
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`of infringement in this Judicial District.
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`9.
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`Venue is proper in this Judicial District under 28 U.S.C. §§ 1391(b) and (c) and §
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`1400(b). Defendant has committed acts of infringement through, for example, performing a
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`method to allow users to produce Internet websites in the Western District of Texas and has a
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`regular and established place of business in this District. Google’s office at 500 W 2nd St.,
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`Austin, TX 78701 is a physical place in the District, it is an established location where Google’s
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`business has been carried out for several years, and Google publicly advertises its presence in
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`the District.
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`THE PATENTS-IN-SUIT
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`10.
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`Express Mobile is the lawful owner of all rights, title, and interest in the ’397
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`patent titled “Browser Based Web Site Generation Tool and Run Time Engine,” including the
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`right to sue and to recover for infringement thereof. The ’397 patent was duly and legally
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`issued on April 8, 2003, naming Steven H. Rempell as the inventor. A true and correct copy of
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`the ’397 patent is attached as Exhibit A.
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`11.
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`The inventions of the ’397 patent solve technical problems related to website
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`creation and generation. For example, the inventions enable the creation of websites through
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`browser-based visual editing tools such as selectable settings panels which describe website
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`elements, with one or more settings corresponding to commands. These features are exclusively
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`implemented utilizing computer technology including a virtual machine.
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`12.
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`The claims of the ’397 patent do not merely recite the performance of some pre-
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`Internet business practice on the Internet. Instead, the claims of the ’397 patent recite inventive
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`concepts that are rooted in computerized website creation technology, and overcome problems
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`specifically arising in the realm of computerized website creation technologies.
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`13.
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`The claims of the ’397 patent recite inventions that are not merely the routine or
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`conventional use of website creation systems and methods. Instead, the inventions teach a
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`browser-based website creation system and method in which the user-selected settings
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`representing website elements are stored in a database, and in which said stored information is
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`retrieved to generate said website.
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`14.
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`The technology claimed in the ’397 patent does not preempt all ways of using
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`website or web page authoring tools nor any other well-known prior art technology.
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`15.
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`Accordingly, each claim of the ’397 patent recites a combination of elements
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`sufficient to ensure that the claim amounts to significantly more than a patent on an ineligible
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`concept.
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`16.
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`Plaintiff is the lawful owner of all rights, title, and interest in United States Patent
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`No. 7,594,168 titled “Browser Based Web Site Generation Tool and Run Time Engine,”
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`including the right to sue and to recover for infringement thereof. The ’168 patent was duly and
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`legally issued on September 22, 2009, naming Steven H. Rempell as the inventor. A true and
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`correct copy of the ’168 patent is attached as Exhibit B.
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`17.
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`The inventions of the ’168 patent solve technical problems related to website
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`creation and generation. For example, the inventions enable the creation of websites through
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`browser-based build tools and a user interface. The inventions greatly improve the productivity
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`of the designer utilizing an innovative implementation for styles. These features are
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`implemented utilizing computer technology.
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`18.
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`The claims of the ’168 patent do not merely recite the performance of some pre-
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`Internet business practice on the Internet. Instead, the claims of the ’168 patent recite inventive
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`concepts that are rooted in computerized website creation technology and overcome problems
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`specifically arising in the realm of computerized website creation technologies.
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`19.
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`The claims of the ’168 patent recite inventions that are not merely the routine or
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`conventional use of website creation systems and methods. Instead, the inventions teach a
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`browser-based website creation system including a server comprising a build engine configured
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`to create and apply styles to, for example, a website with web pages comprised of objects.
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`20.
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`The technology claimed in the ’168 patent does not preempt all ways of using
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`website or webpage authoring tools nor any other well-known or prior art technology.
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`21.
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`Accordingly, each claim of the ’168 patent recites a combination of elements
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`sufficient to ensure that the claim amounts to significantly more than a patent on an ineligible
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`concept.
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`22.
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`In Express Mobile v. KTree Computer Solutions, a case filed in the Eastern
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`District of Texas, the defendant, KTree Computer Solutions, brought a Motion for Judgment on
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`the Pleadings asserting that the ’397 patent and the ’168 patent is invalid as claiming abstract
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`subject matter under 35 U.S.C. § 101. (C.A. 2:17-00128; Dkt. 9, 17, 22-27). The briefing
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`associated with the motion is incorporated by reference into this Complaint.
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`23.
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`After considering the respective pleadings, Magistrate Judge Payne
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`recommended denial of KTree’s motion, without prejudice, holding that “the claims appear to
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`address a problem particular to the internet: dynamically generating websites and displaying
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`web pages based on stored user-selected settings” and further stating “the asserted claims do not
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`bear all of the hallmarks of claims that have been invalidated on the pleadings by other courts in
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`the past. For example, the claims are not merely do-it-on-a-computer claims.” (Dkt. 29,
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`attached as Exhibit C.) No objection was filed to the Magistrate Judge’s report and
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`recommendation and the decision therefore became final.
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`24.
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`In Express Mobile v. Pantheon Systems, Inc., a case filed in the Northern District
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`of California, the defendant, Pantheon Systems, Inc., brought a Motion to Dismiss Plaintiff's
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`First Amended Complaint asserting that the ’397 patent and the ’168 patent were directed to the
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`abstract idea of creating and displaying webpages based upon information from a user with no
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`further inventive concept and purportedly ineligible for patenting under 35 U.S.C. § 101. (Case
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`No. 3:18-CV-04688-RS; Dkt. 26, 32 and 34). The briefing associated with the motion is
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`incorporated by reference into this Complaint.
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`25.
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`In Express Mobile v. Code and Theory LLC, a case filed in the Northern District
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`of California, the defendant, Code and Theory LLC, brought a Motion to Dismiss Plaintiff’s
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`Complaint asserting that the ’397 patent and the ’168 patent are not subject matter eligible under
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`35 U.S.C. § 101 as a matter of law. (Case No. 3:18-CV-04679-RS; Dkt. 35, 40 and 41). The
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`briefing associated with the motion is incorporated by reference into this Complaint.
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`26.
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`After a hearing and a consideration of the respective pleadings, Hon. Richard
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`Seeborg denied both motions holding that:
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`• “The patents here are directed at a purportedly revolutionary technological solution to
`a technological problem—how to create webpages for the internet in a manner that
`permits ‘what you see is what you get’ editing, and a number of other alleged
`improvements over the then-existing methodologies.” Id. at 5.
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`• The claims of the ‘397 and ‘168 patents are “directed to a specific improvement to the
`way computers operate,” and “it simply cannot be said on the present record that the
`claims are drawn so broadly as to be divorced from the potentially patent-eligible
`purported technological improvements described in the specification.” Id. at 5-6.
`(Case No. 3:18-CV-04679-RS; Dkt.45; Case No. 3:18-CV-04688-RS Dkt.40; attached
`as Exhibit D.)
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`27.
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`In Case Nos. 1:18-CV-01173-RGA and 1:18-CV-01175-RGA, infringement
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`actions filed by Plaintiff in the District of Delaware, the respective defendants in those actions,
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`Dreamhost LLC and Hostway Services, Inc., brought Motions to Dismiss claims of the ’397
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`and ’168 patents on the basis of invalidity under 35 U.S.C. § 101. (Case No. 1:18-CV-01173-
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`RGA D.I. 14, D.I. 18-21 and 24 Case No. 1:18-CV-01175-RGA D.I. 17-19 and 23). The
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`briefing associated with the motion is incorporated by reference into this Complaint.
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`28.
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`After consideration of the respective pleadings, Judge Andrews denied both
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`motions in a joint order, pointing to factual allegations of inventiveness identified by the
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`Plaintiff, and an expert declaration explaining inventiveness of the claims, noting that such
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`factual issues preclude a finding of invalidity on a motion to dismiss. (Case No. 1:18-CV-
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`01173-RGA D.I. 43; Case No. 1:18-CV-01175-RGA D.I. 42; attached as Exhibit E.)
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`29.
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`Plaintiff is the lawful owner of all rights, title, and interest in United States Patent
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`No. 9,928,044 titled “Systems and Methods for Programming Mobile Devices,” including the
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`right to sue and to recover for infringement thereof. The ’044 patent was duly and legally
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`issued on March 27, 2018, naming Steven H. Rempell, David Chrobak and Ken Brown as the
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`inventors. A true and correct copy of the ’044 patent is attached as Exhibit F.
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`30.
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`The inventions of the ’044 patent solve technical problems associated with
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`methods and systems for displaying content on displays of devices by providing more efficient
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`ways of generating, storing and retrieving code for displaying content, for example, dynamic
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`content, uniformly across different kinds of devices. For example, the inventions of the ’044
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`patent allow a data-efficient and flexible association between a symbolic name with a User
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`Interface (“UI”) object (e.g., a UI object for a widget) corresponding to a web component of a
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`web service, that is manually or automatically selected. The symbolic name has a data format
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`type corresponding to a subclass of UI objects that support the data format type of the symbolic
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`name and is only available to UI objects that support the data format of the symbolic name.
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`Information representative of the defined UI object can be stored in a database and subsequently
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`retrieved from the database to build an application consisting of at least a portion of the database
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`using a player, which uses the information to generate one or more web pages for display across
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`different kinds of devices (e.g., PC, mobile or tablet; or different browsers, operating systems
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`and applications, including for example both native and browser-based applications.)
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`31.
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`The claims of the ’044 patent do not merely recite the performance of some pre-
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`Internet business practice on the Internet. Instead, the claims of the ’044 patent recite inventive
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`concepts that are rooted in the computerized, data-efficient definition, selection, storage and
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`generation of user defined object attributes (e.g., a UI object for a widget) on displays for
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`different types of devices, such as PC, mobile or tablet or different browsers, and applications.
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`Such features are specifically grounded in, and overcome problems with data efficiency and
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`flexibility specifically arising in, the realm of computerized content generation and display
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`technologies, and are not well-understood, routine and conventional elements.
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`32.
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`For example, the claimed inventions of the ’044 patent recite innovative,
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`technical improvements that select and associate symbolic names with defined UI objects (e.g.,
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`UI objects for a widget) corresponding to web components of web services based on, for
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`example, data format type, storing information representative of such settings in a database, and
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`building applications, which together with players, generate uniform, data-efficient content,
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`such as dynamic content, for display across different types of devices.
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`33.
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`The technology claimed in the ’044 patent does not preempt all ways for the
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`computerized generation of code for a display of a device nor any other well-known or prior art
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`technology. For example, the specific, innovative technical improvements do not preempt well-
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`known methods of generating code for a display of a device by programming in HTML or
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`JavaScript code.
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`34.
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`Accordingly, each claim of the ’044 patent thus recites a combination of
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`elements sufficient to ensure that the claim amounts to significantly more than a patent on an
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`ineligible concept.
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`35.
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`Plaintiff is the lawful owner of all rights, title, and interest in United States Patent
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`No. 9,471,287 titled “Systems and Methods for Integrating Widgets on Mobile Devices,”
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`including the right to sue and to recover for infringement thereof. The ’287 patent was duly and
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`legally issued on October 18, 2016, naming Steven H. Rempell, David Chrobak and Ken Brown
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`as the inventors. A true and correct copy of the ’287 patent is attached as Exhibit G.
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`36.
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`The inventions of the ’287 patent solve technical problems associated with
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`methods and systems for displaying content on displays of devices by providing more efficient
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`ways of generating code for uniformly displaying content, for example dynamic content, across
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`different kinds of devices. For example, the inventions of the ’287 patent allow a data-efficient
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`and flexible association between a symbolic name and a UI object (e.g., a UI object for a
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`widget) corresponding to a web component of a web service, that is defined for presentation on
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`a display of a device. The defined UI object can be selected by a user of an authoring tool or
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`automatically selected by a system based on a web component selected by the user. Further, the
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`symbolic name has a data format type corresponding to a subclass of UI objects that support the
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`data format type of the symbolic name. A device-independent application including the
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`symbolic name is then produced and provided to the device together with a device-platform-
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`dependent player. Such operations provide a user-friendly platform allowing the UI object to be
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`efficiently defined and uniformly displayed across different kinds of devices (e.g., PC, mobile or
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`tablet; or different browsers, operating systems, and applications, including for example both
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`native and browser-based applications).
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`37.
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`The claims of the ’287 patent do not recite merely the performance of a known
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`business practice on the Internet. Instead, the claims of the ’287 patent recite inventive concepts
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`grounded in the computerized, data-efficient definition and generation of object attributes (e.g.,
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`a UI object for a widget) on displays for different types of devices, such as PC, tablet, or mobile
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`devices, or different browsers and applications. Such features are specifically grounded in, and
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`overcome problems with data efficiency and flexibility specifically arising in, the realm of
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`computerized content generation and display technologies, and are not well-understood, routine,
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`and conventional elements.
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`38.
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`For example, the claimed inventions of the ’287 patent recite innovative,
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`technical improvements that associate symbolic names with UI objects (e.g., UI objects for a
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`widget) corresponding to web components of web services that are manually or automatically
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`selected, and defined based on, for example, data format type, and produce device-independent
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`applications including those symbolic names, together with device-dependent players, to
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`provide uniform, data-efficient server-based content display across different types of devices.
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`39.
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`The technology claimed in the ’287 patent does not preempt all ways for the
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`computerized generation of code for a display of a device nor any other well-known or prior art
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`technology. For example, the specific, innovative technical improvements do not preempt well-
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`known methods of generating code for a display of a device by programming in HTML or
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`JavaScript code.
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`40.
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`Each claim of the ’287 patent thus recites a combination of elements sufficient to
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`ensure that the claim amounts to significantly more than a patent on an ineligible concept.
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`41.
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`Accordingly, each claim of the ’287 patent recites a combination of elements
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`sufficient to ensure that the claim amounts to significantly more than a patent on an ineligible
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`concept.
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`42.
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`Plaintiff is the lawful owner of all rights, title, and interest in United States Patent
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`No. 9,063,755 titled “Systems and Methods for Presenting Information on Mobile Devices,”
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`including the right to sue and to recover for infringement thereof. The ’755 patent was duly and
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`legally issued on June 23, 2015, naming Steven H. Rempell, David Chrobak and Ken Brown as
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`the inventors. A true and correct copy of the ’755 patent is attached as Exhibit H.
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`43.
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`The inventions of the ’755 patent utilize inventive concepts to solve technical
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`problems associated with methods and systems for displaying content on displays of devices,
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`providing more efficient ways of generating code for uniformly displaying content, for example
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`dynamic content, across different kinds of devices. For example, the inventions of the ’755
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`patent allow a data-efficient and flexible association between a symbolic name and a UI object
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`(e.g., a UI object for a widget), corresponding to a web component of a web service, that is
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`defined for presentation on a display of a device. A device-independent application including
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`the symbolic name is produced and provided to the device, together with a device-platform-
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`dependent player.
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`44.
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`The claimed inventions of the ’755 patent allow the UI object to be efficiently
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`displayed across different kinds of devices (e.g., PC, mobile or tablet; or different browsers,
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`operating systems, and applications, including both native and browser-based applications), as
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`opposed to, for example, programming directly in HTML or JavaScript code. In turn, a user can
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`enter an input value to the UI object, and obtain an output value based on a web service
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`associated with the UI object, the input value and output value also being communicated
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`through symbolic names to provide an additional level of efficiency.
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`45.
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`The claims of the ’755 patent do not recite merely the performance of a known
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`business practice on the Internet. Instead, the claims of the ’755 patent recite inventive concepts
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`concerning the computerized, data-efficient generation of server-based content (e.g., a UI object
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`for a widget) on displays for different types of devices, such as PC, tablet, or mobile devices, or
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`different browsers and applications. For example, the claims of the ’755 utilize symbolic name
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`associations and provide device-independent applications including those symbolic names,
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`together with device-platform-dependent players, to devices. Further, input values and output
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`values for the defined content are also communicated as symbolic names. Such features are
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`specifically grounded in, and overcome problems with data efficiency and flexibility
`
`specifically arising in, the realm of computerized content generation and display technologies,
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`and are not well-understood, routine, and conventional elements.
`
`46.
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`For example, the claimed inventions of the ’755 patent recite innovative,
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`technical improvements that associate symbolic names with defined UI objects (e.g., UI objects
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`for a widget) corresponding to web components of web services, and produce device-
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`independent applications including those symbolic names, together with device-platform-
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`dependent players, to provide uniform, data-efficient content, such as dynamic content, for
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`display across different types of devices.
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`47.
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`The technology claimed in the ’755 patent does not preempt all ways for the
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`computerized generation of code for a display of a device, nor any other well-known or prior art
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`technology. For example, the specific, innovative technical improvements claimed in the ’755
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`patent do not preempt well-known methods of generating code for a display of a device by
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`programming in HTML or JavaScript code.
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`48.
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`Each claim of the ’755 patent thus recites a combination of elements sufficient to
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`ensure that the claim amounts to significantly more than a patent on an ineligible concept.
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`Accordingly, each claim of the ’755 patent recites a combination of elements sufficient to
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`ensure that the claim amounts to significantly more than a patent on an ineligible concept.
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`BACKGROUND
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`49.
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`Plaintiff Express Mobile is a leader in the business of developing mobile app and
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`web site design and creation platforms, and has intellectual property including U.S. patents
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`relating to certain tools useful in the field. Express Mobile is managed by individuals with
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`decades of technology and business experience. The Chairman of the Board and CTO of
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`Express Mobile, Steve Rempell, is the inventor of Express Mobile’s patent portfolio. Mr.
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`Rempell has over 50 years of experience in technology companies, with much of that work
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`focused on web-based technologies and applications.
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`50.
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`Defendant Google is American multinational technology company that
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`specializes in Internet-related services and products, which include online advertising
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`technologies, a search engine, cloud computing, software, and hardware. Google generates
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`billions of dollars of revenue per year.
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`Case 6:20-cv-00804-ADA Document 1 Filed 09/01/20 Page 13 of 93
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`COUNT I - INFRINGEMENT OF U.S. PATENT NO. 6,546,397
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`51.
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`Plaintiff incorporates by reference the allegations contained in paragraphs 1 to 50
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`above.
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`52.
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`Defendant has performed a method to allow users to produce Internet websites
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`which infringed, either literally or under the doctrine of equivalents, one or more claims of
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`the ’397 patent in violation of 35 U.S.C. § 271(a).
`
`53.
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`Upon information and belief, Google directly infringed at least claim 1 of
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`the ’397 patent through its Google Docs Document and Presentation Extensions (the “Accused
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`Instrumentality”) that provided browser-based website authoring tools in which the user-
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`selected settings representing website elements are stored in a database and in which said stored
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`information is retrieved to generate said website.
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`54.
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`The Accused Instrumentality enabled a user to produce a website through a
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`browser on the user’s computer. For example, the Accused Instrumentality practiced a method
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`to allow users to produce Internet websites on and for computers having a browser and a virtual
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`machine capable of generating displays. Users of these Google products created web sites
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`through either drive.google.com or docs.google.com.
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`Case 6:20-cv-00804-ADA Document 1 Filed 09/01/20 Page 14 of 93
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`Source: https://drive.google.com/drive/my-drive
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`Source: https://drive.google.com/drive/my-drive
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`Case 6:20-cv-00804-ADA Document 1 Filed 09/01/20 Page 15 of 93
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`Source: https://docs.google.com/presentation/u/0/
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`55.
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`The Accused Instrumentality included a user selectable panel of settings
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`describing elements on a website comprising all extensions available. The Accused
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`Instrumentality presented viewable menus having a user selectable panel of settings describing
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`elements on a website. These panels of settings were presented through a browser on a
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`computer adapted to accept dozens of selectable settings in said panels as inputs therefrom, and
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`these user selectable settings in said panels corresponded to commands to a virtual machine
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`(e.g., a Webkit virtual machine). For example, a user could create a Google Doc document and
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`add an element such as a picture. Right clicking on the image would open a selectable panel of
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`settings describing this element. This panel was presented through a browser on a computer.
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`For example, a user could change settings of the element, and the Google Doc
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`would take these selectable settings as inputs, where these inputs are commands to a virtual
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`machine. For example, a user who changed the brightness and contrast settings in the panel
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`would see his or her changes reflected in the virtual machine of the browser.
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`Source:
`https://docs.google.com/document/d/1V2urd9XIuQ11qbAaBN79RbTLhi11pJhawnBAq37uEds/
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`The Accused Instrumentality generated or updated the display immediately upon
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`57.
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`the selection of a user selectable setting. When a generated UI object was selected its selected
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`settings were displayed for editing. When the user changed the setting, the display was
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`generated.
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`Source:
`https://docs.google.com/document/d/1V2urd9XIuQ11qbAaBN79RbTLhi11pJhawnBAq37uEds/
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`58.
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`The Accused Instrumentality stored information representative of the one or
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`more user selected settings in a database. For example, when a user changed a setting (e.g., by
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`moving the slider), the settings were stored in the Google database, as reflected in the HTML of
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`the page, such as the “29% brightness” settings below.
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`Source:
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`The Accused Instrumentality generated a website at least in part by retrieving the
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`59.
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`information representative of the one or more user selected settings stored in said database. For
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`example, when the settings were saved, Google generated the website based on these settings.
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`Source:
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`Because these settings were saved in the Google database, these settings were
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`used to generate a website, as shown, for example, when a user accessed the document.
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`Source:
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`For example, when the document above was shared with a link, a user (e.g., a non-logged in
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`user with Firefox in the example below) who looked at the linked document would see the
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`image with the same settings saved in the database.
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`Source:
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`The Accused Instrumentality built one or more web pages to generate the website
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`61.
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`from at least a portion of the database and at least one run time file, where the at least one run
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`time file utilizes information stored in the database to generate virtual machine commands for
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`the display of at least a portion of said one or more web pages. As shown below, the Accused
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`Instrumentality relied on a number of runtime javascript files to generate, monitor, and display
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`the various elements of the customizable portion of the page based on user settings, such as the
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`“docs-image-effect-adjustment-transparency-slider” function in the “3754595833-
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`client_js_prod_kix_tertiary.js” javascript file shown below.
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`Source:
`https://docs.google.com/document/d/1V2urd9XIuQ11qbAaBN79RbTLhi11pJhawnBAq37uEds/
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`Google was made aware of the ’397 patent and its infringement thereof at least as
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`62.
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`early as December 20, 2018 when Express Mobile provided notice of Google’s infringement of
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`the ’397 patent to Kent Walker, Senior Vice-President of Global Affairs of Google. From at
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`least the time Google received notice, Google induced others to infringe at least one claim of
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`the ’397 patent under 35 U.S.C. § 271(b) by, among other things, and with specific intent or
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`willful blindness, actively aiding and abetting others to infringe, including but not limited to
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`Google’s clients, customers, and end users, whose use of the Accused Instrumentality
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`constituted direct infringement of at least one claim of the ’397 patent. In particular, Google’s
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`actions that aided and abetted others such as customers and end users to infringe included
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`advertising and distributing the Accused Instrumentality and providing instruction materials,
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`training, and services regarding the Accused Instrumentality. See e.g., https://docs.google.com/,
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`https://developers.google.com/slides/, https://support.google.com/docs/,
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`https://support.google.com/docs/community, including all related domains and subdomains.
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`Upon information and belief, Google engaged in such actions with specific intent to cause
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`infringement or with willful blindness to the resulting infringement because Google had actual
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`knowledge of the ’397 patent an