craigslist, Inc. v. GraphOn Corporation

Filing 1

COMPLAINT; summons issued against GraphOn Corporation (Filing fee $ 350, receipt number 34611043695). Filed by craigslist, Inc. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(slh, COURT STAFF) (Filed on 3/18/2010)

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Christopher Kao (SBN 237716) E-mail: [e-mail] Brian Hennessy (SBN 226721) E-mail: [e-mail] PERKINS COIE LLP

101 Jefferson Drive
Menlo Park, CA 94025-1114

Telephone: [phone]

Facsimile: [phone]

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Attorneys for Plaintiff craigslist, Inc.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

·Una

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v.

craigslist, Inc., a Delaware corporation, Plaintiff,
COMPLAINT FOR DECLARATORY JUDGMENT

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GraphOn Corporation, a Delaware corporation, Defendant.

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Plaintiff craigslist, Inc. ("craigslist") alleges as follows for its Complaint for Declaratory

Relief against Defendant GraphOn Corporation ("GraphOn"):
PARTIES

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1.

craigslist is a Delaware corporation, with its principal place of business in San

Francisco, California.

2.

Upon information and belief, GraphOn is a Delaware corporation, with its

principal place of business in Santa Cruz, California.

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-1COMPLAINT
40753-0067/LEG Al. 17913254.2

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JURISDICTION

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This action arises under the patent laws of the United States, 35 U.S.C. §§ 1 et

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seq., and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. This Court has subject
matter jurisdiction pursuant to 28 U.S.C. §§1331 and 1338(a). 4.
1400(b).

Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and (c), and

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INTRADISTRICT ASSIGNMENT

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This is an Intellectual Property Action to be assigned on a district-wide basis under

Civil Local Rules 3-2(c) and 3-5.
BACKGROUND

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6.

craigslist operates the website, www.craigslist.org, which provides online

localized classified ad placement and related online services.

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7.

GraphOn claims to be the owner of U.S. Patent Nos. 6,324,538 (the '"538

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Patent"), which is attached hereto as Exhibit A, 6,850,940 (the '"940 Patent"), which is attached
hereto as Exhibit B, 7,028,034 (the '"034 Patent"), which is attached hereto as Exhibit C, and 7,269,591 (the '"591 Patent"), which is attached hereto as Exhibit D. These patents are collectively referred to hereinafter as the "Patents-in-Suit." 8. On January 18,2010, GraphOn, through its counsel Watson Rounds, sent a letter

to craigslist, a copy of which is attached hereto as Exhibit E.

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9.

The letter stated that Watson Rounds had "reviewed the [c]raigslist website in

detail" and that it "believe[d] that there may be interest on the part of [c]raigslist in licensing four
of GraphOn's patents, U.S. Patent No.'s, 6,324,538,6,850,940, 7,028,034 and 7,269,591." 10. The letter further stated that: "To date, GraphOn has licensed its portfolio to

AutoTrader.com, Classified Ventures (Cars.com), Careerbuilder.com, Google, Yahoo!, eBay and
others, and it would appreciate the opportunity to add [c]raigslist to this growing list without
time-consuming and costly litigation for both parties." ,

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-2COMPLAINT
40753-0067/LEGAL17913254.2

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11.

GraphOn has previously commenced litigation against numerous other parties

alleging infringement of some or all of the Patents-in-Suit: a. On August 24,2007, GraphOn filed a complaint alleging infringement of

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the '538 and '940 Patents against AutoTrader.com, Inc. in the U.S. District Court for the Eastern
District of Texas. At the time of that suit, the '591 and '034 patents had not yet issued.
b. On March 6, 2008, GraphOn filed a complaint alleging infringement of the

Patents-in-Suit against Classified Ventures, LLC, IAC/InterActiveCorp., Match.com, LLC,

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Yahoo! Inc'., eHarmony.com, and CareerBuilder, LLC in the U.S. District Court for the Eastern
District of Texas. c. On August 13, 2008, GraphOn filed a complaint alleging infringement of

the Patents-in-Suit against Google Inc. in the U.S. District Court for the Eastern District of Texas. 12. In addition, GraphOn's predecessor-in-interest, Network Engineering Software,

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Inc. filed a complaint against eBay, Inc. in the U.S. District Court for the Northern District of
California on March 23, 1999, alleging infringement of U.S. Patent No. 5,778,367, which contains an identical specification to the Patents-in-Suit, and of which the Patents-in-Suit patents
are continuations.

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13.

On February 10,2010, MySpace, Inc. ("MySpace")--after having received a letter

from GraphOn similar to the one received by craigslist--filed a complaint for declaratory judgment of non-infringement, invalidity and unenforceability of the Patents-in-Suit in the U.S.
District Court for the Northern District of California, MySpace, Inc. v. GraphOn Corporation, 10 CV604(EDL).

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14.

In view of the foregoing, and specifically that (a) GraphOn has asserted that

craigslist infringes the Patents-in-Suit and should enter into a license agreement with GraphOn or else face litigation, (b) craigslist believes that it does not infringe the Patents-in-Suit, and
(c) craigslisl does not believe that all of the claims of the Patents-in-Suit are valid and

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enforceable, there exists an actual and justiciable controversy between the parties. On that basis,
craigslist brings this action for declaratory judgment.
-3COMPLAINT
40753-0067/LEGAL17913254.2

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COUNT I

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DECLARATORY JUDGMENT OF NON-INFRINGEMENT

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15.

craigslist incorporates and realleges the allegations of Paragraphs 1 -14 as if fully

set forth herein.

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16.

craigslist has not infringed, nor is it presently infringing, any valid claims of the

Patents-in-Suit.

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17.

An actual controversy exists between GraphOn and craigslist with respect to

whether craigslist infringes the Patents-in-Suit.

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craigslist seeks a declaratory judgment that it does not infringe any claims of the

Patents-in-Suit.
COUNT II

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DECLARATORY JUDGMENT OF INVALIDITY

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craigslist incorporates and realleges the allegations of Paragraphs 1 -18 as if set

forth fully herein.

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An actual controversy exists between GraphOn and craigslist with respect to the

validity of the Patents-in-Suit.

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The Patents-in-Suit are invalid for failure to comply with one or more of the

requirements of the patent laws of the United States, including, but not limited to, those codified
at35U.S.C. §§ 101, 102, 103 and 112.

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craigslist seeks a declaration that the Patents-in-Suit are invalid.
REQUEST FOR RELIEF

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WHEREFORE, craigslist requests the following relief: (1)
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A declaration that craigslist does not infringe the '538 patent;
A declaration that the '538 patent is invalid;
A declaration that craigslist does not infringe the '940 patent;

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(4) (5)

A declaration that the '940 patent is invalid; A declaration that craigslist does not infringe the '034 patent;
-4COMPLAINT

40753-O067/LEGAL17913254.2

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(6)
(7)
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A declaration that the '034 patent is invalid;
A declaration that craigslist does not infringe the '591 patent;
A declaration that the '591 patent is invalid;

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(9)

A declaration that this is an exceptional case under 35 U.S.C. § 285 and awarding

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craigslist its reasonable attorneys' fees in this action;

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An award to craigslist of its costs and expenses in this action; and
A judgment granting craigslist such other and further relief as the Court may deem

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just and proper.

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DATED: March 18,2010

PERKINS COIE LLP

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By:

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Christopher Kao (SBN 237716) [e-mail] Brian Hennessy (SBN 226721) [e-mail]

craigslist, Inc.

Attorneys for Plaintiff

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-5COMPLA1NT
40753-0067/LEGAL17913254.2

EXHIBIT A

EXHIBIT B

EXHIBIT C

EXHIBIT D

EXHIBIT E