throbber
Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 1 of 24
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`PANTHER INNOVATIONS, LLC,
`
`Plaintiff,
`
`v.
`
`MICROSOFT CORPORATION,
`
`Defendant.
`
`CIVIL ACTION NO.
`
`6:20-cv-1071
`
`JURY TRIAL DEMANDED
`
`PLAINTIFF’S COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff Panther Innovations, LLC (“Panther” or “Plaintiff”) files this Complaint for patent
`
`infringement against Microsoft Corporation (“Microsoft” or “Defendant”) and states as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is a civil action for patent infringement under the patent laws of the United
`
`States of America, 35 U.S.C. § 1 et seq.
`
`2.
`
`Panther is the owner of all right, title, and interest in U.S. Patent Nos. 7,840,652
`
`(the “’652 Patent”) and 8,069,231 (the “’231 Patent”) (collectively “the Asserted Patents”), which
`
`are attached as Exhibits A and B and incorporated herein by reference.
`
`3.
`
`Defendant Microsoft has infringed and continues to infringe one or more claims of
`
`the Asserted Patents by making, using, offering to sell, and selling within the United States,
`
`including in this District, certain products and services. Panther seeks to recover monetary
`
`damages, attorneys’ fees, and costs.
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 2 of 24
`
`THE PARTIES
`
`4.
`
`Panther is a Texas limited liability company with a principal place of business at
`
`2325 Oak Alley, Tyler, Texas 75703.
`
`5.
`
`Defendant Microsoft is a corporation organized under the laws of the State of
`
`Washington, with its principal place of business at 1 Microsoft Way, Redmond, Washington 98052.
`
`Defendant may be served via its registered agent, Corporation Service Company, at 211 East 7th
`
`Street, Suite 620, Austin, Texas 78701.
`
`6.
`
`Microsoft has been registered to do business in the state of Texas under Texas SOS
`
`file number 0006776606 since at least 1986.
`
`JURISDICTION AND VENUE
`
`7.
`
`The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§
`
`1331 and 1338(a).
`
`8.
`
`This Court has personal jurisdiction over Defendant because Defendant does
`
`continuous and systematic business in this District, including by providing infringing products and
`
`services to the residents of the Western District of Texas that Defendant knew would be used
`
`within this District, and by soliciting business from the residents of the Western District of Texas.
`
`For example, Defendant is subject to personal jurisdiction in this Court because, inter alia,
`
`Defendant has regular places of business in the District at 10900 Stonelake Boulevard, Suite 225,
`
`Austin, Texas 78759 and Concord Park II, 401 East Sonterra Boulevard, Suite 300, San Antonio,
`
`Texas 78258. Defendant directly, and through agents, regularly does, solicits, and transacts
`
`business in the Western District of Texas.
`
`9.
`
`Defendant has committed and continues to commit acts of infringement in violation
`
`of 35 U.S.C. § 271 within the Western District of Texas. Defendant has in the past made, used,
`
`
`
`2
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 3 of 24
`
`marketed, distributed, offered for sale, sold, and/or imported infringing products, and performed
`
`infringing methods, in the State of Texas and in the Western District of Texas. Defendant
`
`continues to make, use, market, distribute, offer for sale, sell, and/or import infringing products,
`
`and perform infringing methods, in the State of Texas and in the Western District of Texas.
`
`Accordingly, Defendant has in the past engaged, and continues to engage, in infringing conduct
`
`within and directed at or from this District. Additionally, Defendant has purposefully and
`
`voluntarily placed its infringing products into the stream of commerce with the expectation that its
`
`infringing products will be used in this District. The infringing products have been and continue
`
`to be distributed to and used in this District. Upon information and belief, the infringing products
`
`have been and continue to be distributed from this District. Defendant’s acts have caused, and
`
`continue to cause, injury to Plaintiff, including within this District.
`
`10.
`
`Venue is proper in this District under the provisions of 28 U.S.C. §§ 1391 and
`
`1400(b) at least because Defendant has committed acts of infringement in this District and has a
`
`regular and established places of business in this District at 10900 Stonelake Boulevard, Suite 225,
`
`Austin, Texas 78759 and Concord Park II, 401 East Sonterra Boulevard, Suite 300, San Antonio,
`
`Texas 78258.
`
`BACKGROUND
`
`11.
`
`Years before Microsoft added the accused functionality to its Windows operating
`
`system, Ascentive, LLC was developing intellectual property directed to optimizing network
`
`speeds. Adam Schran and Robert Darlington, the named inventors of the Asserted Patents, sought
`
`to address the inefficiency in the Internet connection by computers and the difficulty of adjusting
`
`network configuration settings of a computer for Internet data transfer. Mr. Schran and Mr.
`
`Darlington conceived of a novel way of optimizing a computer’s Internet connection by selecting
`
`
`
`3
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 4 of 24
`
`from groups of network configuration settings and conducting one or more performance tests to
`
`automatically adjust the configuration settings to enhance the end-user’s Internet performance.
`
`This invention resulted in the Asserted Patents.
`
`U.S. PATENT NO. 7,840,652
`
`12.
`
`On October 15, 2004, the United States Patent and Trademark Office duly and
`
`legally issued the ’652 Patent, entitled “System and method for determining network configuration
`
`settings that provide optimal network performance” after a full and fair examination.
`
`13.
`
`14.
`
`15.
`
`Exhibit A is a true and correct copy of the ’652 Patent.
`
`The ’652 Patent is valid and enforceable under United States patent laws.
`
`Plaintiff is the owner of the ’652 Patent, having received all right, title and interest
`
`in and to the ’652 Patent from the previous assignee of record.
`
`16.
`
`Plaintiff possesses all rights of recovery under the ’652 Patent, including the
`
`exclusive right to recover for past infringement.
`
`U.S. PATENT NO. 8,069,231
`
`17.
`
`On November 29, 2011, the United States Patent and Trademark Office duly and
`
`legally issued the ’231 Patent, entitled “Computer program product for determining a group of
`
`network configuration settings that provide optimal network performance” after a full and fair
`
`examination.
`
`18.
`
`19.
`
`20.
`
`Exhibit B is a true and correct copy of the ’231 Patent.
`
`The ’231 Patent is valid and enforceable under United States patent laws.
`
`Plaintiff is the owner of the ’231 Patent, having received all right, title and interest
`
`in and to the ’231 Patent from the previous assignee of record.
`
`
`
`4
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 5 of 24
`
`21.
`
`Plaintiff possesses all rights of recovery under the ’231 Patent, including the
`
`exclusive right to recover for past infringement.
`
`THE ASSERTED PATENTS
`
`22.
`
`The claims of the Asserted Patents are directed to patent-eligible, non-abstract
`
`inventions.
`
`23.
`
`The Asserted Patents address, among other things, specific technological
`
`improvements for optimizing Internet data transfer speeds. For example, when a computer
`
`connects to a server across a TCP/IP network, such as using a home computer to connect to
`
`www.bing.com, that computer’s operating system connects using certain user-selectable pre-
`
`configured TCP/IP settings. However, optimal settings for connecting to that server or any other
`
`server are not static; optimal settings for connections to that server will vary across time based on
`
`certain factors such as congestion and server demand. See, e.g., Ex. A ’652 Patent at 1:30-50. The
`
`Asserted Patents are directed to optimizing that connection by automatically adjusting specific
`
`user-selectable TCP/IP network settings by selecting from groups of network configuration
`
`settings and conducting one or more performance test to ensure the best data throughput. See, e.g.,
`
`id. at 1:59-2:55. These settings can also be continually tested to ensure an optimal connection in
`
`varying situations. Id.
`
`24.
`
`For instance, the Asserted Patents describe certain TCP/IP settings that can be
`
`adjusted to optimize the network connection, including, for example, Maximum Transmission Unit
`
`(MTU), Maximum Segment Size (MSS), Receive Window (RWIN), Time to Live (TTL), Black
`
`Hole Detection, and MTU Auto Discovery. See, e.g., id. at 2:41-46.
`
`25.
`
`Figure 3 of the Asserted Patents is illustrated below:
`
`
`
`5
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 6 of 24
`
`
`
`26.
`
`Figure 3 generally describes a process where a user may either select network
`
`configuration preferences (305) or elect to use default network configuration settings (310). See,
`
`e.g., id. at 5:18-7:22. An application, for example, then performs tests to determine an optimal
`
`network configuration (315). Id. A dynamic mode (330, 335, and 340) is also described where
`
`the network settings are continuously analyzed and adjusted to ensure optimal network
`
`connectivity. Id.
`
`MICROSOFT’S INFRINGING PRODUCTS AND ACTIVITIES
`
`27. Microsoft Windows Products (the “Accused Products”) provide various user-
`
`selectable network configuration settings. The Accused Products include at least Windows Vista,
`
`Windows 7, Windows 8, and Windows 10 operating systems, including at least as made available
`
`as software for download or purchase, software pre-installed in Microsoft or OEM computer
`
`products, and software pre-installed in Microsoft Xbox and Surface products. Upon information
`
`
`
`6
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 7 of 24
`
`and belief, the accused features were introduced in 2008 in the Windows Vista and Windows
`
`Server 2008 operating systems with, for example, user-selectable TCP Auto-tuning functionality,
`
`user-selectable Congestion Provider functionality, and user-selectable Scaling Heuristics
`
`functionality.
`
`28.
`
`For example, Microsoft Windows Products provide TCP auto-tuning. A TCP auto-
`
`tuning level of normal will provide a scale factor of 8 (which is the maximum scale factor to be
`
`used) to automatically optimize RWIN. The autotuning feature implements a sliding window
`
`based on network constraints:
`
`https://docs.microsoft.com/en-us/windows-server/networking/technologies/network-
`subsystem/net-sub-performance-tuning-nics (last visited Nov. 18, 2020).
`
`
`
`
`
`https://support.microsoft.com/en-us/help/947239/description-of-the-receive-window-auto-
`tuning-feature-for-http-traffic (last visited Nov. 18, 2020).
`
`
`
`7
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 8 of 24
`
`
`
`29.
`
`On information and belief, Microsoft Windows Products are enabled to implement
`
`Congestion Provider functionality to automatically optimize network configuration settings
`
`including MSS. By default, client computers use NewReno, but may also be configured to
`
`implement CTCP or DCTCP:
`
`
`https://docs.microsoft.com/en-us/powershell/module/nettcpip/set-nettcpsetting?view=win10-ps
`(last visited Nov. 18, 2020).
`
`
`30.
`
`CTCP, or Compound TCP, is a Microsoft implementation that includes the ability
`
`to automatically optimize performance:
`
`
`
`8
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 9 of 24
`
`
`https://www.microsoft.com/en-us/research/project/the-compound-tcp-for-high-speed-and-long-
`distance-networks/;
`see
`also,
`https://www.microsoft.com/en-us/research/wp-
`content/uploads/2016/02/tr-2005-86.pdf (last visited Nov. 18, 2020).
`
`
`31.
`
`The Accused Products also are enabled to implement Scaling Heuristics
`
`functionality to optimize scaling:
`
`
`
`9
`
`
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 10 of 24
`
`https://docs.microsoft.com/en-us/powershell/module/nettcpip/set-nettcpsetting?view=win10-ps
`(last visited Nov. 18, 2020)
`
`
`
`https://www.windows-security.org/192ee4e61e5b3a5334794f4af06f03a5/set-window-scaling-
`heuristics-state (last visited Nov. 18, 2020).
`
`
`32.
`
`For each of the TCP auto-tune, Congestion Provider, and Scaling Heuristics
`
`functionalities, the Accused Products are designed to automatically adjust these network
`
`configuration settings to optimize connectivity. For example, for TCP auto-tune functionality, the
`
`Accused Products conduct performance tests to optimize the network feature:
`
`
`https://support.microsoft.com/en-us/help/947239/description-of-the-receive-window-auto-
`tuning-feature-for-http-traffic (last visited Nov. 18, 2020).
`
`
`33.
`
`For the Congestion Provider functionality, the Accused Products conduct
`
`performance tests to optimize the network feature:
`
`
`
`10
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 11 of 24
`
`
`https://www.microsoft.com/en-us/research/project/the-compound-tcp-for-high-speed-and-long-
`distance-networks/;
`see
`also,
`https://www.microsoft.com/en-us/research/wp-
`content/uploads/2016/02/tr-2005-86.pdf (last visited Nov. 18, 2020).
`
`
`34.
`
`For Scaling Heuristics, the Accused Products conduct performance tests to
`
`optimize the network feature:
`
`
`https://www.windows-security.org/192ee4e61e5b3a5334794f4af06f03a5/set-window-scaling-
`heuristics-state (last visited Nov. 18, 2020).
`
`
`35. Windows
`
`10
`
`is
`
`“active
`
`on more
`
`than
`
`900 million
`
`devices.”
`
`https://www.microsoft.com/investor/reports/ar19/index.html (last visited Nov. 18, 2020). The
`
`
`
`11
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 12 of 24
`
`Accused Products are sold to consumers and Microsoft’s Original Equipment Manufacturers. See,
`
`e.g., id. The Accused Products are also preinstalled on hardware devices sold by Microsoft
`
`including, at
`
`least, Xbox series devices and Surface series devices.
`
` See, e.g.,
`
`https://www.polygon.com/2015/8/10/9126899/phil-spencer-obliterating-distinction-between-
`
`xbox-pc-gamescom-interview-2015;
`
`https://www.quora.com/What-is-the-OS-of-a-Xbox-one;
`
`and
`
`https://support.microsoft.com/en-us/help/2858199/surface-supported-operating-systems.
`
`(last visited Nov. 18, 2020).
`
`COUNT I: INFRINGEMENT OF U.S. PATENT NO. 7,840,652
`
`36.
`
`Plaintiff incorporates by reference and re-alleges the foregoing paragraphs of this
`
`Complaint as if fully set forth herein.
`
`37.
`
`Defendant has directly infringed and continues to directly infringe at least claims 1
`
`and 29 of the ’652 Patent in violation of 35 U.S.C. § 271 et seq., by making, using, offering for
`
`sale, or selling in the United States, and/or importing into the United States without authority or
`
`license the Accused Products.
`
`38.
`
`The Accused Products meet all the limitations of at least claims 1 and 29 of the
`
`’652 Patent. For example, claim 1 of the ’652 Patent recites:
`
`A method of optimizing network configuration settings for a user's client machine,
`the method comprising:
`
`(a) providing a plurality of groups of network configuration settings to be used by
`the user's client machine;
`
`(b) establishing a network connection between the user's client machine and a
`remote server;
`
`(c) selecting one of the groups of network configuration settings to be used by the
`user's client machine from the provided groups of settings, wherein step (c) is
`initiated on the user's client machine;
`
`(d) automatically conducting one or more performance tests using the selected
`network configuration settings during the established network connection;
`
`
`
`12
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 13 of 24
`
`(e) repeating steps (c) and (d) for one or more other groups of network configuration
`settings during the established network connection; and
`
`(f) automatically adjusting the network configuration settings of the user's client
`machine provided in the groups based on the results of the performance tests,
`wherein the adjusted network configuration settings are settings that optimize the
`performance of the user's client machine.
`
`39.
`
`A non-limiting and exemplary claim chart comparing the Accused Products to
`
`claims 1 and 29 of the ’652 Patent is attached hereto as Exhibit C and is incorporated herein as if
`
`fully rewritten. This description is based on publicly available information. Plaintiff reserves the
`
`right to modify this description, including, for example, on the basis of information about the
`
`Accused Products that it obtains during discovery.
`
`40.
`
`As in claim 1 of the ’652 Patent, the Accused Products optimize network
`
`configuration settings for a user’s client machine (e.g., a computer running one of the MS Windows
`
`Products that is an Accused Product).
`
`41.
`
`As in claim 1 of the ’652 Patent, the Accused Products provide a plurality of groups
`
`of network configuration settings (e.g., TCP auto-tune, Congestion Provider, and Scaling
`
`Heuristics functionality) to be used by the user’s client machine. For example, a TCP auto-tuning
`
`level of normal will provide a scale factor of 8 (which is the maximum scale factor to be used) to
`
`automatically optimize RWIN. The auto-tuning feature implements a sliding window based on
`
`network
`
`constraints.
`
`
`
`See,
`
`e.g.,
`
`https://docs.microsoft.com/en-us/windows-
`
`server/networking/technologies/network-subsystem/net-sub-performance-tuning-nics;
`
`https://support.microsoft.com/en-us/help/947239/description-of-the-receive-window-auto-
`
`tuning-feature-for-http-traffic (last visited Nov. 18, 2020). In addition, the Accused Products
`
`implement Congestion Provider functionality to automatically optimize network settings including
`
`MSS. By default, client computers use NewReno, but may also be configured to implement CTCP
`
`or DCTCP.
`
` See, e.g., https://docs.microsoft.com/en-us/powershell/module/nettcpip/set-
`
`
`
`13
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 14 of 24
`
`nettcpsetting?view=win10-ps (last visited Nov. 18, 2020). CTCP, or Compound TCP, is a
`
`Microsoft implementation that includes the ability to automatically optimize performance. See,
`
`e.g.,
`
`https://www.microsoft.com/en-us/research/project/the-compound-tcp-for-high-speed-and-
`
`long-distance-networks/;
`
`https://www.microsoft.com/en-us/research/wp-
`
`content/uploads/2016/02/tr-2005-86.pdf (last visited Nov. 18, 2020). The Accused Products also
`
`implement Scaling Heuristics
`
`functionality
`
`to
`
`optimize
`
`scaling.
`
`
`
`See,
`
`e.g.,
`
`https://docs.microsoft.com/en-us/powershell/module/nettcpip/set-nettcpsetting?view=win10-ps;
`
`https://www.windows-security.org/192ee4e61e5b3a5334794f4af06f03a5/set-window-scaling-
`
`heuristics-state (last visited Nov. 18, 2020).
`
`42.
`
`As in claim 1 of the ’652 Patent, the Accused Products establish a network
`
`connection between the user’s client machine (e.g., a computer running one of the Accused
`
`Products) and a remote server (e.g., a webserver). For example, the Accused Products are designed
`
`with certain functionality that is specifically directed to establishing a network connection between
`
`a client machine and remote servers using TCP. WinHTTP is one such example that is designed
`
`to allow a computer running one of the Accused Products to communicate with a remote server.
`
`See, e.g., https://support.microsoft.com/en-us/help/947239/description-of-the-receive-window-
`
`auto-tuning-feature-for-http-traffic (last visited Nov. 18, 2020).
`
`43.
`
`As in claim 1 of the ’652 Patent, the Accused Products select one of the groups of
`
`network configurations settings (e.g., one of TCP auto-tune, Congestion Provider, and Scaling
`
`Heuristics functionality) to be used by the user’s client machine from the provided groups of
`
`settings (e.g., TCP auto-tune, Congestion Provider, and Scaling Heuristics functionality), where
`
`this step is initiated on the client machine. For example, the Accused Products implement separate
`
`unique algorithms that select from and adjust network configuration settings, such as TCP auto-
`
`
`
`14
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 15 of 24
`
`tune, Congestion Provider,
`
`and Scaling Heuristics
`
`functionality.
`
`
`
`See,
`
`e.g.,
`
`https://docs.microsoft.com/en-us/windows-server/networking/technologies/network-
`
`subsystem/net-sub-performance-tuning-nics#autotuning-levels (last visited Nov. 18, 2020).
`
`44.
`
`As in claim 1 of the ’652 Patent, the Accused Products automatically conduct one
`
`or more performance tests using the selected network configuration settings (e.g., one of TCP auto-
`
`tune, Congestion Provider, and Scaling Heuristics functionality) during the established network
`
`connection. For example, for TCP auto-tune functionality, the Accused Products conduct
`
`performance tests to optimize the network feature. See, e.g., https://support.microsoft.com/en-
`
`us/help/947239/description-of-the-receive-window-auto-tuning-feature-for-http-traffic
`
`(last
`
`visited Nov. 18, 2020). Similarly, for the Congestion Provider functionality, the Accused Products
`
`conduct
`
`performance
`
`tests
`
`to
`
`optimize
`
`the
`
`network
`
`feature.
`
`
`
`See,
`
`e.g.,
`
`https://www.microsoft.com/en-us/research/project/the-compound-tcp-for-high-speed-and-long-
`
`distance-networks/; https://www.microsoft.com/en-us/research/wp-content/uploads/2016/02/tr-
`
`2005-86.pdf (last visited Nov. 18, 2020). Further, for Scaling Heuristics, the Accused Products
`
`conduct performance tests to optimize the network feature. See, e.g., https://www.windows-
`
`security.org/192ee4e61e5b3a5334794f4af06f03a5/set-window-scaling-heuristics-state
`
`(last
`
`visited Nov. 18, 2020).
`
`45.
`
`As in claim 1 of the ’652 Patent, the Accused Products repeat steps (c) and (d) for
`
`one or more other groups of network configuration settings (e.g., one of TCP auto-tune,
`
`Congestion Provider, and Scaling Heuristics functionality) during the established network
`
`connection. For example, the Accused Products optimize each of TCP auto-tune, Congestion
`
`Provider, and Scaling Heuristics functionality.
`
`
`
`15
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 16 of 24
`
`46.
`
`As in claim 1 of the ’652 Patent, the Accused Products automatically adjust the
`
`network configuration settings (e.g., TCP auto-tune, Congestion Provider, and Scaling Heuristics
`
`functionality) of the user’s client machine (e.g., a computer running MS Windows Products)
`
`provided in the groups based on the results of the performance tests, wherein the adjusted network
`
`configuration settings are settings that optimize the performance of the user’s client machine. For
`
`example, the purpose of TCP auto-tune, Congestion Provider, and Scaling Heuristics functionality
`
`is
`
`to
`
`optimize
`
`the
`
`performance.
`
`
`
`See,
`
`e.g.,
`
`https://support.microsoft.com/en-
`
`us/help/947239/description-of-the-receive-window-auto-tuning-feature-for-http-traffic;
`
`https://www.microsoft.com/en-us/research/project/the-compound-tcp-for-high-speed-and-long-
`
`distance-networks/; https://www.microsoft.com/en-us/research/wp-content/uploads/2016/02/tr-
`
`2005-86.pdf;
`
`https://www.windows-security.org/192ee4e61e5b3a5334794f4af06f03a5/set-
`
`window-scaling-heuristics-state (last visited Nov. 18, 2020).
`
`47.
`
`Defendant makes, uses, sells, and/or offers to sell the Accused Products which
`
`practice at least claim 1 of the ’652 Patent and which comprise all of the elements of claim 29 of
`
`the ’652 Patent.
`
`48.
`
`In violation of 35 U.S.C. § 271, Defendant is now, and has been directly infringing
`
`the ’652 Patent, including through its own use, testing, and sale of the Accused Products.
`
`49.
`
`Defendant has had knowledge of infringement of the ’652 Patent at least as of the
`
`service of the present Complaint.
`
`50.
`
`Defendant has directly infringed and continues to directly infringe at least one claim
`
`of the ’652 Patent by making, using, offering for sale, and selling the Accused Products without
`
`authority in the United States. As a direct and proximate result of Defendant’s direct infringement
`
`of the ’652 Patent, Panther has been and continues to be damaged.
`
`
`
`16
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 17 of 24
`
`51.
`
`By engaging in the conduct described herein, Defendant has injured Panther and is
`
`thus liable for infringement of the ’652 Patent, pursuant to 35 U.S.C. § 271.
`
`52.
`
`Defendant has committed these acts of infringement without license or
`
`authorization.
`
`53.
`
`As a result of Defendant’s infringement of the ’652 Patent, Plaintiff has suffered
`
`monetary damages and is entitled to a monetary judgment in an amount adequate to compensate
`
`for Defendant’s past infringement, together with interests and costs.
`
`54.
`
`Plaintiff reserves the right to modify its infringement theories as discovery
`
`progresses in this case; it shall not be estopped for infringement contention or claim construction
`
`purposes by the claim chart that it provides with this Complaint. The claim chart depicted in
`
`Exhibit C is intended to satisfy the notice requirements of Rule 8(a)(2) of the Federal Rule of Civil
`
`Procedure and does not represent Plaintiff’s preliminary or final infringement contentions or
`
`preliminary or final claim construction positions.
`
`COUNT II: INFRINGEMENT OF U.S. PATENT NO. 8,069,231
`
`55.
`
`Plaintiff incorporates by reference and re-alleges the foregoing paragraphs of this
`
`Complaint as if fully set forth herein.
`
`56.
`
`Defendant has directly infringed and continues to infringe at least claim 1 of the
`
`’231 Patent in violation of 35 U.S.C. § 271 et seq., by making, using, offering for sale, or selling
`
`in the United States, and/or importing into the United States without authority or license the
`
`Accused Product.
`
`57.
`
`The Accused Products meet all the limitations of at least claim 1 of the ’231 Patent.
`
`For example, claim 1 of the ’231 Patent recites:
`
`A computer program product for optimizing network configuration settings for a
`user's client machine, the computer program product comprising non-transitory
`
`
`
`17
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 18 of 24
`
`computer-readable media encoded with instructions for execution by a processor to
`perform a method comprising:
`
`(a) providing a plurality of groups of network configuration settings to be used by
`the user's client machine;
`
`(b) establishing a network connection between the user's client machine and a
`remote server;
`
`(c) selecting one of the groups of network configuration settings to be used by the
`user's client machine from the provided groups of settings, wherein step (c) is
`initiated on the user's client machine;
`
`(d) automatically conducting one or more performance tests using the selected
`network configuration settings during the established network connection;
`
`(e) repeating steps (c) and (d) for one or more other groups of network configuration
`settings during the established network connection; and
`
`(f) automatically adjusting the network configuration settings of the user's client
`machine provided in the groups based on the results of the performance tests,
`wherein the adjusted network configuration settings are settings that optimize the
`performance of the user’s client machine.
`
`58.
`
`A non-limiting and exemplary claim chart comparing the Accused Products to
`
`claim 1 of the ’231 Patent is attached hereto as Exhibit C and is incorporated herein as if fully
`
`rewritten. This description is based on publicly available information. Plaintiff reserves the right
`
`to modify this description, including, for example, on the basis of information about the Accused
`
`Product that it obtains during discovery.
`
`59.
`
`As in claim 1 of the ’231 Patent, the Accused Products are computer program
`
`products for optimizing network configuration settings for a user’s client machine (e.g., a computer
`
`running one the MS Windows Products that is an Accused Product), the Accused Products include
`
`non-transitory computer-readable media (e.g., software) encoded with instructions for execution
`
`by a processor to perform the claimed function.
`
`60.
`
`As in claim 1 of the ’231 Patent, the Accused Products are designed to enable
`
`providing a plurality of groups of network configuration settings (e.g., TCP auto-tune, Congestion
`
`
`
`18
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 19 of 24
`
`Provider, and Scaling Heuristics functionality) to be used by the user’s client machine. For
`
`example, a TCP auto-tuning level of normal will provide a scale factor of 8 (which is the maximum
`
`scale factor to be used) to automatically optimize RWIN. The auto-tuning feature implements a
`
`sliding window based on network constraints. See, e.g., https://docs.microsoft.com/en-
`
`us/windows-server/networking/technologies/network-subsystem/net-sub-performance-tuning-
`
`nics; https://support.microsoft.com/en-us/help/947239/description-of-the-receive-window-auto-
`
`tuning-feature-for-http-traffic (last visited Nov. 18, 2020). In addition, the Accused Products are
`
`enabled to implement Congestion Provider functionality to automatically optimize network
`
`settings including MSS. By default, client computers use NewReno, but may also be configured
`
`to
`
`implement CTCP
`
`or DCTCP.
`
`
`
`See,
`
`e.g.,
`
`https://docs.microsoft.com/en-
`
`us/powershell/module/nettcpip/set-nettcpsetting?view=win10-ps (last visited Nov. 18, 2020).
`
`CTCP, or Compound TCP, is a Microsoft implementation that includes the ability to automatically
`
`optimize performance.
`
` See, e.g., https://www.microsoft.com/en-us/research/project/the-
`
`compound-tcp-for-high-speed-and-long-distance-networks/;
`
`https://www.microsoft.com/en-
`
`us/research/wp-content/uploads/2016/02/tr-2005-86.pdf (last visited Nov. 18, 2020). The
`
`Accused Products also are enabled to implement Scaling Heuristics functionality to optimize
`
`scaling.
`
`
`
`See,
`
`e.g.,
`
`https://docs.microsoft.com/en-us/powershell/module/nettcpip/set-
`
`nettcpsetting?view=win10-ps;
`
`https://www.windows-
`
`security.org/192ee4e61e5b3a5334794f4af06f03a5/set-window-scaling-heuristics-state
`
`(last
`
`visited Nov. 18, 2020).
`
`61.
`
`As in claim 1 of the ’231 Patent, the Accused Products are designed to enable
`
`establishing a network connection between the user’s client machine (e.g., a computer running one
`
`of the MS Windows Products that is an Accused Product) and a remote server (e.g., a webserver).
`
`
`
`19
`
`

`

`Case 6:20-cv-01071 Document 1 Filed 11/20/20 Page 20 of 24
`
`For example, the Accused Products are designed with certain functionality that is specifically
`
`directed to establishing a network connection between a client machine and remote servers using
`
`TCP. WinHTTP is one such example that is designed to allow a computer running one of the
`
`Accused
`
`Products
`
`to
`
`communicate with
`
`a
`
`remote
`
`server.
`
`
`
`See,
`
`e.g.,
`
`https://support.microsoft.com/en-us/help/947239/description-of-the-receive-window-auto-
`
`tuning-feature-for-http-traffic (last visited Nov. 18, 2020).
`
`62.
`
`As in claim 1 of the ’231 Patent, the Accused Products are designed to enable
`
`selecting one of the groups of network configurations settings (e.g., one of TCP auto-tune,
`
`Congestion Provider, and Scaling Heuristics functionality) to be used by the user’s client machine
`
`from the provided groups of settings (e.g., TCP auto-tune, Congestion Provider, and Scaling
`
`Heuristics functionality), where this step is initiated on the client machine. For example, the
`
`Accused Products are designed with separate unique algorithms that are designed to select from
`
`and adjust network configuration settings, such as TCP auto-tune, Congestion Provider, and
`
`Scaling Heuristics
`
`functionality.
`
` See, e.g., https://docs.microsoft.com/en-us/windows-
`
`server/networking/technologies/network-subsystem/net-sub-performance-tuning-
`
`nics#autotuning-levels (last visited Nov. 18, 2020).
`
`63.
`
`As in claim 1 of the ’231 Patent, the Accused Products are designed to enable
`
`automatically conducting one or more performance tests using the selected network configuration
`
`settings (e.g., one of TCP auto-tune, Congestion Provider, and Scaling Heuristics functionality)
`
`during the established network connection. For example, for TCP auto-tune functionality, the
`
`Accused Products conduct performance tests to optimize the network feature. See, e.g.,
`
`https://support.microsoft.com/en-us/help/947239/description-of-the-receive-window-auto-
`
`tuning-feature-for-http-traffic (last visited Nov. 18, 2020). Similarly, for the Congestion Provider
`
`
`
`20
`
`

`

`Case 6:20-cv-01071

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