Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 1 of 28
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`DDC TECHNOLOGY, LLC,
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`Plaintiff,
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`Case No.: 6:21-cv-00850
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`v.
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`
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`MERGE LABS, INC. (dba MERGE VR),
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`JURY TRIAL DEMANDED
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`Defendant.
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff DDC Technology, LLC complains of Defendant Merge Labs, Inc. (dba Merge
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`VR) as follows:
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`NATURE OF LAWSUIT
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`1.
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`This is a claim for patent infringement arising under the patent laws of the United
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`States, Title 35 of the United States Code.
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`THE PARTIES
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`2.
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`DDC Technology, LLC (“DDC”) is a limited liability company formed and existing
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`under the laws of the State of Delaware.
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`3.
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`DDC is the named assignee of, owns all right, title and interest in, and has standing
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`to sue for infringement of United States Patent No. 9,420,075, entitled “Virtual Reality Viewer
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`and Input Mechanism,” which issued on August 16, 2016 (“the ‘075 Patent”) (a true and correct
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`copy is attached as Exhibit A); United States Patent No. 9,723,117, entitled “Virtual Reality
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`Viewer and Input Mechanism,” which issued on August 1, 2017 (“the ‘117 Patent”) (a true and
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`correct copy is attached as Exhibit B); United States Patent No. 9,811,184, entitled “Virtual Reality
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`Viewer and Input Mechanism,” which issued on November 7, 2017 (“the ‘184 Patent”) (a true and
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 2 of 28
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`correct copy is attached as Exhibit C); and United States Patent No. 10,528,199, entitled “Virtual
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`Reality Viewer and Input Mechanism,” which issued on January 7, 2020 (“the ‘199 Patent”) (a
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`true and correct copy is attached as Exhibit D) (collectively, the “Asserted Patents”).
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`4.
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`The Asserted Patents were invented by Patrick Buckley and originally assigned to
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`DODOcase, Inc. (“DODOcase”). DODOcase was founded by Mr. Buckley and Craig Dalton in
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`2010 in the basement of Mr. Buckley’s home. They started the company with the mission of
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`making mobile device accessories that were built by local craftsman.
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`5.
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`For seven years they manufactured and sold mobile device accessories made in the
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`United States of America. Most of their products were built in a factory they built themselves in
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`San Francisco. DODOcase sold millions of products and was recognized globally as a premium
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`brand for mobile accessories.
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`6.
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`In 2014, DODOcase anticipated a growing mobile device accessories market,
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`particularly for affordable virtual reality accessories that worked with smartphones. Mr. Buckley,
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`an MIT trained mechanical engineer and inventor of multiple patents, recognized some
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`breakthrough improvements that could be made to then-existing smartphone virtual reality
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`accessories and filed for patent protection for an innovative way to make a low-cost virtual reality
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`input system for touchscreen devices. DODOcase launched four virtual reality smartphone
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`accessories in 2014 and sold over one-million smartphone virtual reality viewers.
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`7.
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`In 2016, DODOcase was forced to abandon the sale and production of products that
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`used its own patented technology because of severe price pressures resulting from infringers
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`importing competitive products.
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`8.
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`On or about October 16, 2018, the Asserted Patents were assigned to DDC. As part
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`of that assignment, DODOcase retained a financial interest in the Asserted Patents.
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 3 of 28
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`9.
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`Based upon public information, Merge Labs, Inc. (doing business as Merge VR)
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`(“Merge”) is a Delaware corporation with its principal place of business at 22211 West Interstate
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`10, Suite 1206, San Antonio, Texas 78257. Merge maintains a registered agent of Capitol Services,
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`Inc. at 1675 South State Street, Suite B, Dover, Delaware 19901. Merge markets and sells virtual
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`reality headsets under the brand name, “Merge VR.”
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`10. Merge makes or has made, imports, offers to sell and/or sells the Accused Products
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`subject to this patent infringement action as set forth in more detail below.
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`JURISDICTION AND VENUE
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`11.
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`This Court has exclusive jurisdiction over the subject matter of the Complaint under
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`28 U.S.C. §§ 1331 and 1338(a).
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`12.
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`Personal jurisdiction is proper in this Court. Merge maintains its principal place of
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`business in this Judicial District of Texas. Further, Merge has minimum contacts with the State of
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`Texas, and has purposefully availed itself of the privileges of conducting business in the State of
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`Texas, including through the sale and offer for sale of the Accused Products throughout the State
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`of Texas and this Judicial District.
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`13.
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`Venue in this judicial district is proper under 28 U.S.C. § 1400(b) because Merge
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`resides in this Judicial District as confirmed by its principal place of business in this Judicial
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`District of Texas.
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`PRIOR COMMUNICATIONS WITH MERGE
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`14.
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`On April 26, 2021, DDC sent an initial letter to Merge regarding allegations of
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`patent infringement.
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`15.
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`On or around May 10, 2021, counsel purporting to represent Merge contacted
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`DDC’s counsel by phone and stated that Merge was out of this product line.
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 4 of 28
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`16.
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`DDC attempted further discussions with Merge in an effort to resolve this dispute
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`but Merge was largely unresponsive. On July 12, 2021, then-counsel for Merge requested that the
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`parties enter into a non-disclosure agreement (“NDA”) to facilitate exchange of information.
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`17.
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`On July 13, 2021, DDC sent a draft NDA. On July 20, 2021, then-counsel for Merge
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`said that he had forwarded the draft NDA to Merge and that he hoped to get it back soon.
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`18.
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`Instead of receiving an update on the draft NDA, on July 27, 2021, new counsel
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`purporting to represent Merge sent a letter contending non-infringement, invalidity, and
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`threatening: “Should DDC pursue any claim against Merge, Merge will seek an award of its
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`attorney’s fees in view of the clear lack of merit of any such claim, which would make any such
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`case ‘exceptional.’”
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`19.
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`In light of Merge’s numerous delays, misrepresentations, and now threat to seek
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`attorneys’ fees, DDC files this Complaint to expedite resolution of this dispute and limit Merge’s
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`ability to misrepresent facts pertinent to this case (including, e.g., past sales, continuing sales, and
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`the actual features of the Accused Products). Merge’s misrepresentations and continued willful
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`infringement after notice demonstrate this case is exceptional pursuant to 35 U.S.C. § 285.
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`THE ACCUSED PRODUCTS
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`20. Merge infringed, and continues to infringe, the Asserted Patents by making, having
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`made, selling, offering to sell, and/or importing Merge’s Virtual Reality Headsets that include
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`“dual trigger buttons” or “input buttons” (collectively referred to herein as the “Accused
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`Products”):
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`IT rat
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`Dual Trigger
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 5 of 28
`Case 6:21-cv-00850-ADA Document1 Filed 08/16/21 Page 5 of 28
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`NEeRGe
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`<> VIRTUAL REALITY
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`n adjustments and Press
`Barer to interact with vr
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 6 of 28
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`21.
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`The Accused Products are virtual reality viewers designed to operate with a mobile
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`electronic device having a touchscreen (e.g., “smartphone”):
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`22.
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`The Accused Products include two lenses for viewing the mobile electronic device:
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`23.
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`The Accused Products comprise a housing configured to receive and hold the
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`mobile electronic device such that the touchscreen is generally centered in a horizontal direction
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`directly in a user’s field of view:
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 8 of 28
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`24.
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`The Accused Products further include an input mechanism that is accessible on the
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`exterior of the Accused Products:
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 9 of 28
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`25. Merge calls these input mechanisms “trigger buttons” or “input buttons” in various
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`advertisements, user manuals and packaging for the Accused Products.
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`26.
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`The touchscreen inputs of the two “trigger/input buttons” of the Accused Products,
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`when in a second (or extended) position, contact the touchscreen of the mobile electronic device
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`within the virtual reality viewer housing:
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 10 of 28
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`27.
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`The touchscreen inputs of the “trigger/input buttons” of the Accused Products
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`comprise a capacitive material to activate the touchscreen of a mobile electronic device.
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`28.
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`The Accused Products subject to this Complaint necessarily include all
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`substantively similar products (including other virtual reality viewers that comprise “trigger/input
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`button(s)” for use with a touchscreen of a mobile electronic device) and any predecessor and/or
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`successor versions of the foregoing.
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 11 of 28
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`29.
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`After adequate discovery, DDC may seek leave to amend this Complaint to include
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`additional details of infringement, if any, by other products hereafter discovered to infringe the
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`Asserted Patents.
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`COUNT I: INFRINGEMENT OF UNITED STATES PATENT NO. 9,420,075
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`30.
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`DDC realleges and incorporates by reference paragraphs 1 through 29, inclusive,
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`as though fully set forth herein.
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`31. Merge’s actions (e.g., the sales, offers of sale, importation, and having products
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`manufactured) with respect to the Accused Products have directly infringed, and continue to
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`directly infringe, at least independent Claims 1 and 18 of the ‘075 Patent.
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`32. Merge’s Accused Products are virtual reality viewers for use with a mobile
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`CLAIM 1
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`electronic device having a touchscreen.
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`33.
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`The Accused Products comprise a housing configured to receive the mobile
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`electronic device.
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`34.
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`Said housing is configured to hold the mobile electronic device such that the
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`touchscreen is generally centered in a horizontal direction and directly in a user’s field of view
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`when looking into a generally hollow interior of the housing through a side opposite the
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`touchscreen.
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`35.
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`The Accused Products include an input mechanism that is accessible from an
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`exterior of the housing and is moveable within the interior between at least a first position and an
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`extended position.
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`36.
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`Said input mechanism comprises an electrical shield having a surface, wherein only
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`a portion of the surface of the electrical shield is configured to contact a central region of the
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`touchscreen of the mobile electronic device when the input mechanism is in the extended position.
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`37.
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`In its letter dated July 27, 2021, Merge’s most recent legal counsel asserted the
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`following unsupported attorney argument of non-infringement: “Specifically, the Merge Headset
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`products do not include an electrical shield. Merge does not use an electrical shield as its
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`conductive material. Merge is not configured to have only a portion of the surface of the ‘electric
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`shield’ contact the screen. Instead, the Merge Headset is optimized for maximum surface contact.
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`The Merge Headset is not configured to touch the central region of the touch screen. Instead, the
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`Merge Headset has two inputs, one on the left side and one on the right side.”
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`38.
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`These unsupported assertions are incorrect. The Accused Products do include an
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`electrical shield, which (although not required by Claim 1) comprises a conductive material. As
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`evidenced below, the Accused Products include an electric shield comprised of a rubberized
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`conductive nub affixed to a metal arm that extends through the interior housing:
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`39.
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`The Accused Products are also configured to have a portion of the surface of the
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`electric shield contact the screen of a mobile electronic device and the electric shield does not, as
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 13 of 28
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`Merge counsel contends, have “maximum surface contact.” Instead, as shown immediately above,
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`only a portion of the electric shield (i.e., only a portion of the rubberized conductive nub) is
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`configured to make contact with the touchscreen.
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`40.
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`And the portion of the electric shield is specifically configured to contact a central
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`region of the touchscreen. Specifically, both of the rubberized conductive nubs are located in
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`between the lenses such that, when a mobile electronic device is properly installed, contact by both
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`nubs will be made with a central region of the touchscreen (the nubs are circled below and the
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`edge of the mobile electronic device is designated with vertical lines):
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`41.
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`In addition to infringement of Claim 1, the actions of Merge (e.g., the sales, offers
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`of sale, importation, and having products manufactured) with respect to the Accused Products
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`
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`likely infringe dependent Claims 2-4, 6-9 and 16-17, of the ‘075 Patent.
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`CLAIM 18
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`42. Merge’s Accused Products are virtual reality viewers for use with a mobile
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`electronic device having a capacitive touchscreen.
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`43.
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`The Accused Products comprise a housing configured to receive the mobile
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`electronic device and substantially enclose the touchscreen within a generally hollow interior of
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`the housing, wherein the housing holds the touchscreen in a position that is generally centered in
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 14 of 28
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`a horizontal direction and directly in a user’s field of view when viewing the touchscreen through
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`a back wall of the housing, wherein the back-wall is opposite the touchscreen and includes a left
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`and a right lens for viewing a left region and a right region of the interior and the touchscreen.
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`44.
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`The Accused Products include an input device including, a first portion that is
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`accessible from an exterior of the housing, and an elongate[d] second portion disposed within the
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`interior of the housing between the left and right regions wherein the second portion is generally
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`oriented in a vertical direction that is perpendicular to the horizontal direction.
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`45.
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`Said input device comprises an electric shield, wherein a first surface of the electric
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`shield is disposed on the first portion and is electrically coupled to a second surface of the electric
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`shield, wherein the second surface is disposed on the second portion within the interior and is
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`generally centered in the horizontal direction between the left and right regions, and wherein only
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`the second surface of the electric shield is configured to contact a central portion of the touchscreen
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`of the mobile electronic device and selectively transfer a capacitive touch input to the touchscreen
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`in response to a user interaction with the first portion of the input mechanism.
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`46.
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`In its letter dated July 27, 2021, Merge’s most recent legal counsel asserted the
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`following unsupported attorney argument of non-infringement: “Specifically, the Merge Headset
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`products do not include an electrical shield. The input system design of the Merge Headset does
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`not use an elongated second portion. Instead, its mechanical design is completely different. The
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`input for the Merge Headset is not located between the left and right regions. Instead, the inputs
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`are attached to the left and right lenses and contact either the left or right side of the screen
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`independently. The input for the Merge Headset is not generally oriented in a vertical position.
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`The Merge Headset does not use an electric shield as its conductive material. The conductive
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`material of the Merge Headset is not generally centered in the horizontal direction between the left
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 15 of 28
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`and right regions. Instead, it uses two inputs: one on the left; and one on the right. The conductive
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`material of the Merge Headset does not contact the center part of the screen as the inputs are offset
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`to contact either the left side of the screen or the right side of the screen.”
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`47.
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`These unsupported assertions are incorrect. As set forth above, the Accused
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`Products comprise an electric shield.
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`48.
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`Further, the Accused Products include an elongated second portion:
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`49.
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`The inputs for the Accused Products are located between the left and right regions
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`and generally oriented in a vertical direction:
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 16 of 28
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`50.
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`As set forth above, the Accused Products include an electric shield comprising
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`conductive material (rubberized conductive nub and metal).
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`51.
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`And the second surface is disposed on the second portion within the interior and
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`generally centered in the horizontal direction between the left and right regions:
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 17 of 28
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`52. While the Accused Products include two inputs (consistent with dependent Claim
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`16 of the ‘075 Patent), each of the two inputs are generally centered and the Accused Products are
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`configured such that the second surface of the electric shield does contact a central portion of a
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`touchscreen (not the left side or right side as Merge counsel summarily contends) – as shown
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`immediately above.
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`53.
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`DDC notified Merge of the ‘075 Patent and the likelihood of infringement thereof
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`on April 26, 2021.
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`54.
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`To the extent required by law, DDC has complied with, and requires each licensee
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`to comply with, the provisions of 35 U.S.C. § 287.
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`55. Merge’s direct infringement as described above has injured and will continue to
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`injure DDC as long as such infringement continues.
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`56.
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`DDC is entitled to recover damages adequate to compensate it for such
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`infringement but in no event less than a reasonable royalty for Merge’s infringement of the
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`Asserted Patents, together with interest and costs.
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`COUNT II: INFRINGEMENT OF UNITED STATES PATENT NO. 9,723,117
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`57.
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`DDC realleges and incorporates by reference paragraphs 1 through 29, inclusive,
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`as though fully set forth herein.
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`58. Merge’s actions (e.g., the sales, offers of sale, importation, and having products
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`manufactured) with respect to the Accused Products have directly infringed, and continue to
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`directly infringe, at least independent Claim 12 of the ‘117 Patent.
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`CLAIM 12
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`59. Merge’s Accused Products are virtual reality viewers for use with a mobile
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`electronic device having a touchscreen.
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`60.
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`The Accused Products comprise a first lens and a second lens, wherein the first lens
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`is facing the same direction as the second lens, and wherein the first lens and the second lens are
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`spaced apart in a horizontal direction.
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`61.
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`The Accused Products comprise a housing having a back side configured to be held
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`against or in proximity to a user’s face and a front side configured to receive the mobile electronic
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`device, the front side of the housing opposite the back side of the housing such that the touchscreen
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`is viewable from the back side of the housing and through the first lens and the second lens.
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`62.
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`The Accused Products include a user input that is accessible from an exterior of the
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`housing and has a first position and a second position.
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`63.
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`The Accused Products include a touchscreen input conductively coupled to the user
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`input and generally centered between the first lens and the second lens in the horizontal direction,
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`wherein, upon receipt of the mobile electronic device, the touchscreen input is in physical contact
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`with the touchscreen when the user input is in the second position.
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`64.
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`In its letter dated July 27, 2021, Merge’s most recent legal counsel asserted the
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`following unsupported attorney argument of non-infringement: “Specifically, the Merge Headset
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`products do not include a touchscreen input as claimed. The inputs used in the Merge Headset
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`products are not generally centered between the first and second lens. In the Merge Headset
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 19 of 28
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`products, there are two inputs, one for the left side and one for the right side, with each being
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`attached to the lens and are movable.”
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`65.
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`These unsupported assertions are incorrect. The Accused Products comprise
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`touchscreen inputs that are generally centered between the first and second lens:
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`66.
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`And while the Accused Products do include two user inputs (consistent with
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`dependent Claim 16), both are generally centered as illustrated immediately above.
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`67.
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`Further, the actions of Merge (e.g., the sales, offers of sale, importation, and having
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`products manufactured) with respect to the Accused Products likely infringe dependent Claims 13-
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`16, 18, and 20 of the ‘117 Patent.
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`68.
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`DDC notified Merge of the ‘117 Patent and the likelihood of infringement thereof
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`on April 26, 2021.
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`69.
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`To the extent required by law, DDC has complied with, and requires each licensee
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`to comply with, the provisions of 35 U.S.C. § 287.
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`70. Merge’s direct infringement as described above has injured and will continue to
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`injure DDC as long as such infringement continues.
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`71.
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`DDC is entitled to recover damages adequate to compensate it for such
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`infringement but in no event less than a reasonable royalty for Merge’s infringement of the
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`Asserted Patents, together with interest and costs.
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`COUNT III: INFRINGEMENT OF UNITED STATES PATENT NO. 9,811,184
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`72.
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`DDC realleges and incorporates by reference paragraphs 1 through 29, inclusive,
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`as though fully set forth herein.
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`73. Merge’s actions (e.g., the sales, offers of sale, importation, and having products
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`manufactured) with respect to the Accused Products have directly infringed, and continue to
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`directly infringe, at least independent Claim 12 of the ‘184 Patent.
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`CLAIM 12
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`74. Merge’s Accused Products are virtual reality viewers for use with a mobile
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`electronic device having a touchscreen.
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`75.
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`The Accused Products comprise a first lens and a second lens, wherein the first lens
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`is facing the same direction as the second lens and wherein the first lens and the second lens are
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`spaced apart in a horizontal direction.
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`76.
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`The Accused Products comprise an enclosure having a first side and a second side
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`opposite the first side, the first side configured to hold the first lens and the second lens, the second
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`side configured to receive the mobile electronic device.
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`77.
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`The Accused Products include a user input that is accessible from an exterior of the
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`enclosure and has a first position and a second position.
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`78.
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`The Accused Products include a touchscreen input conductively coupled to the user
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`input and generally centered between the first lens and the second lens in the horizontal direction,
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`wherein, upon receipt of the mobile electronic device, the touchscreen input is in physical contact
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`with the touchscreen when the user input is in the second position.
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 21 of 28
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`79.
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`In its letter dated July 27, 2021, Merge’s most recent legal counsel asserted the
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`following unsupported attorney argument of non-infringement: “Specifically, the Merge Headset
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`products do not include a touchscreen input as claimed. The inputs used in the Merge Headset
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`products are not configured to contact a central region of the touch screen. The inputs are attached
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`to the left and right lenses and contact either the left or right side of the screen specifically.”
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`80.
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`These unsupported assertions are incorrect. The two touchscreen inputs (consistent
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`with dependent Claim 13) are generally centered between the first lens and the second lens in the
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`horizontal direction as claimed:
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`81.
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`Further, the actions of Merge (e.g., the sales, offers of sale, importation, and having
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`products manufactured) with respect to the Accused Products likely infringe dependent Claims 13,
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`15-18, and 20 of the ‘184 Patent.
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`82.
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`DDC notified Merge of the ‘184 Patent and the likelihood of infringement thereof
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`on April 26, 2021.
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`83.
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`To the extent required by law, DDC has complied with, and requires each licensee
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`to comply with, the provisions of 35 U.S.C. § 287.
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`84. Merge’s direct infringement as described above has injured and will continue to
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`injure DDC as long as such infringement continues.
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 22 of 28
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`85.
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`DDC is entitled to recover damages adequate to compensate it for such
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`infringement but in no event less than a reasonable royalty for Merge’s infringement of the
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`Asserted Patents, together with interest and costs.
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`COUNT IV: INFRINGEMENT OF UNITED STATES PATENT NO. 10,528,199
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`86.
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`DDC realleges and incorporates by reference paragraphs 1 through 29, inclusive,
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`as though fully set forth herein.
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`87. Merge’s actions (e.g., the sales, offers of sale, importation, and having products
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`manufactured) with respect to the Accused Products have directly infringed, and continue to
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`directly infringe, at least independent Claims 1 and 30 of the ‘199 Patent.
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`88. Merge’s Accused Products are virtual reality viewers for use with a mobile
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`CLAIM 1
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`electronic device having a touchscreen.
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`89.
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`The Accused Products comprise a first lens and a second lens, wherein the first lens
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`is facing the same direction as the second lens, and wherein the first lens and the second lens are
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`spaced apart in a horizontal direction.
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`90.
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`The Accused Products comprise a frame having a first side and a second side
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`opposite the first side, the first side configured to hold the first lens and the second lens, the second
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`side configured to receive the mobile electronic device, wherein the frame is configured to hold
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`the mobile electronic device such that the mobile electronic device is generally centered in a
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`horizontal direction and directly in a user’s field of view when looking through the first side of the
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`frame.
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`91.
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`The Accused Products include a touchscreen input constructed of material and
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`having a surface such that only a portion of the surface of the touchscreen input is configured to
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 23 of 28
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`contact a central region of the touchscreen of the mobile electronic device when the touchscreen
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`input is activated.
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`92.
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`In its letter dated July 27, 2021, Merge’s most recent legal counsel asserted the
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`following unsupported attorney argument of non-infringement: “Specifically, the Merge Headset
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`products do not include a touchscreen input having a surface such that only a portion of the surface
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`of the touchscreen input is configured to contact a central region of the touchscreen of the mobile
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`electronic device. The inputs used in the Merge Headset products are not configured to contact a
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`central region of the touchscreen. The inputs are attached to the left and right lenses and contact
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`either the left or right side of the screen specifically.”
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`93.
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`These unsupported assertions are incorrect. As set forth above, the Accused
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`Products include two touchscreen inputs that each have a surface such that only a portion of the
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`surface is configured to contact a central region of the touchscreen:
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 24 of 28
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`94.
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`Further, the actions of Merge (e.g., the sales, offers of sale, importation, and having
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`products manufactured) with respect to the Accused Products likely infringe dependent Claims 2,
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`
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`4-6, and 16-29 of the ‘199 Patent.
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`CLAIM 30
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`95. Merge’s Accused Products are virtual reality viewers for use with a mobile
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`electronic device having a touchscreen.
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`96.
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`The Accused Products comprise a first lens and a second lens, wherein the first lens
`
`is facing the same direction as the second lens, and wherein the first lens and the second lens are
`
`spaced apart in a horizontal direction.
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`97.
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`The Accused Products comprise a frame having a first side and a second side
`
`opposite the first side, the first side configured to hold the first lens and the second lens, the second
`
`side configured to receive the mobile electronic device, wherein the frame is configured to hold
`
`the mobile electronic device such that the mobile electronic device is generally centered in a
`
`horizontal direction and directly in a user’s field of view when looking through the first side of the
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`frame.
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`98.
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`The Accused Products include a user input that is accessible from an exterior of the
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`enclosure and has a first position and a second position.
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 25 of 28
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`99.
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`The Accused Products include a touchscreen input that is coupled to the user input
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`and generally centered between the first lens and the second lens in the horizontal direction,
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`wherein the touchscreen has a surface such that only a portion of the surface of the touchscreen
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`input is configured to contact a central region of the touchscreen when the user input is in the
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`second position.
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`100.
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`In its letter dated July 27, 2021, Merge’s most recent legal counsel asserted the
`
`following unsupported attorney argument of non-infringement: “Specifically, the Merge Headset
`
`products do not include a touchscreen input having a surface such that only a portion of the surface
`
`of the touchscreen input is configured to contact a central region of the touchscreen of the mobile
`
`electronic device. The inputs of the Merge Headset products are not generally centered between
`
`the first and second lenses. Instead, the inputs are attached to [each] lens and move horizontally
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`and vertically with the lens adjustments. The inputs of the Merge Headset products are not
`
`configured to contact a central region of the touch screen. Instead, they are offset to contact either
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`the left side of the screen or the right side of the screen.”
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`101. These unsupported assertions are incorrect. The Accused Products include a
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`touchscreen input such that only a portion of the surface of the touchscreen input is configured to
`
`contact a central region of the touchscreen:
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 26 of 28
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`102. While the Accused Products include two touchscreen inputs (consistent with
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`dependent Claim 31), each of the touchscreen inputs is configured to contact a central region of
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`
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`the touchscreen:
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 27 of 28
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`103. Further, the actions of Merge (e.g., the sales, offers of sale, importation, and having
`
`products manufactured) with respect to the Accused Products likely infringe dependent Claims 31,
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`33-35, and 37-40 of the ‘199 Patent.
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`104. DDC notified Merge of the ‘199 Patent and the likelihood of infringement thereof
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`on April 26, 2021.
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`105. To the extent required by law, DDC has complied with, and requires each licensee
`
`to comply with, the provisions of 35 U.S.C. § 287.
`
`106. Merge’s direct infringement as described above has injured and will continue to
`
`injure DDC as long as such infringement continues.
`
`107. DDC is entitled to recover damages adequate to compensate it for such
`
`infringement but in no event less than a reasonable royalty for Merge’s infringement of the
`
`Asserted Patents, together with interest and costs.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff DDC Technology, LLC respectfully requests this Court to enter
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`judgment against Defendant Merge Labs, Inc. (doing business as Merge VR) and against each of
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`its subsidiaries, predecessors, successors, parents, affiliates, officers, directors, agents, servants,
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`employees, and all persons in active concert or participation with it – granting the following relief:
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`Case 6:21-cv-00850-ADA Document 1 Filed 08/16/21 Page 28 of 28
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`A.
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`The entry of judgment in favor of DDC and against Merge that the Asserted Patents
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`are valid, enforceable and infringed by Merge;
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`B.
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`An award of d