Calibrait, LLC v. Apple, Inc.

Filing 1

COMPLAINT with Jury Demand against Apple, Inc. (Filing fee $350 receipt number 0974-3835482), filed by Calibrait, LLC.The new case number is 3:11-cv-1759-DMS-RBB. Judge Dana M. Sabraw and Magistrate Judge Ruben B. Brooks are assigned to the case. (Afrasiabi, Peter)(rlu) (av1).

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Nathaniel L. Dilger (Bar No. 196203)
Email: [e-mail]
Peter R. Afrasiabi (Bar No. 193336)
email: [e-mail]
ONE LLP
4000 MacArthur Boulevard
West Tower, Suite 1100
Newport Beach, California 92660
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff Calibrait, LLC.

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No. '11CV1759 DMS RBB

CALIBRAIT, LLC, a California limited
liability corporation,

COMPLAINT FOR PATENT
INFRINGEMENT, PERMANENT
INJUNCTION AND DAMAGES

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Plaintiff,

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v.
DEMAND FOR JURY TRIAL
APPLE, INC., a California corporation,

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Defendant.

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For its Complaint against Apple, Inc. (“Apple”), Plaintiff Calibrait, LLC
(“Calibrait”) alleges as follows:
THE PARTIES

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1.

Plaintiff Calibrait, LLC (“Calbrait”) is a limited liability corporation duly

organized and existing under the laws of California with its principal place of business at
Golden Eagle Business Center, 525 B Street, Suite 1500, San Diego, CA 92101. As
alleged below, Calibrait is the owner of all right, title, and interest in U.S. Patent No.
7,447,565.
19373.1

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COMPLAINT

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Defendant Apple, Inc. is a corporation duly organized and existing under the

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laws of California, with its principal place of business at 1 Infinite Loop, Cupertino, CA

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95014. Apple is in the business of using, making, selling, offering for sale, importing, and

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distributing mobile devices that incorporate accelerometers, among other components, to

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persons in the U.S. through physical and electronic channels, including the Internet.
JURISDICTION AND VENUE

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3.

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This is a civil action for patent infringement arising under the Patent Act of

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the United States, 35 U.S.C. §§ 1 et seq. This court has subject matter jurisdiction of such

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federal question claims pursuant to 28 U.S.C. §§ 1331 and 1338(a).
4.

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Venue is proper under 28 U.S.C. §§ 1391(b), 1391(c) and 1400(b) in that the

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acts and transactions complained of herein were conceived, carried out, made effective, and

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had effect within the State of California and within this district, among other places. Apple

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resides in this judicial district by virtue of its state of incorporation and business activities

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in this district and has committed acts of infringement in this judicial district.
U.S. PATENT NO. 7,447,565

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5.

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On November 4, 2008, the United States Patent & Trademark Office duly and

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legally issued United States Letters Patent No. 7,447,565 (“the ‘565 Patent”), entitled

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“Electronic Alignment System.”
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The ‘565 patent claims, among other things, an electronic alignment device,

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comprising mutually perpendicular accelerometers, that enables a user to field calibrate the

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accelerometers by providing instructions to a user to position the electronic device to

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capture a first set of positional data, providing instructions to the user to turn the electronic

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alignment device 180 degrees to enable the electronic alignment device to capture a second

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set of positional data, and averaging the first and second sets of captured data.

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19373.1

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COMPLAINT

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FIRST CLAIM FOR RELIEF

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AGAINST DEFENDANT APPLE, INC. FOR DIRECT, CONTRIBUTORY AND

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INDUCING INFRINGEMENT OF U.S. PATENT NO. 7,447,565

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7.

Plaintiff incorporates herein by reference the allegations set forth in

paragraphs 1-7 of the Complaint as though fully set forth herein.
8.

A true and correct copy of the ‘565 Patent is attached as Exhibit A and

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incorporated herein by reference. Defendant Apple has, and continues to, make, use, sell,

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offer for sale, import and/or distribute mobile devices having accelerometers integrated

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therein, including, but not limited to, iPad, iPad2, iPhone 2G, iPhone 3G/3GS, iPhone 4,

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and iPod Touch models (collectively, the “Apple Products”).
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Apple further has, and continues to, make, use, sell, offer for sale, or otherwise

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distribute software programs that enable users to field calibrate the accelerometers in the

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Apple Products, including, but not limited to, software called “Bubble Level” (“Calibration

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Software”).

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10.

By making, using, selling, and offering for sale the Apple Products and

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Calibration Software, Apple has directly infringed and continues to directly infringe the

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‘565 Patent, including infringement under 35 U.S.C. § 271(a) and (f).

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11.

On information and belief, Apple has also indirectly infringed and continues to

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indirectly infringe the ‘565 Patent by actively inducing direct infringement by other persons

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who operate methods and systems that embody or otherwise practice one or more of the

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claims of the ‘565 Patent when Apple had knowledge of the ‘565 Patent and knew or

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should have known that their actions would induce direct infringement by others and

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intended that their actions would induce direct infringement by others.

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12.

On information and belief, Apple has also indirectly infringed and continues to

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indirectly infringe the ‘565 Patent by contributory infringement by providing non-staple

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articles of commerce to others for use in an infringing system or method with knowledge of

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the ‘565 Patent and knowledge that these non-staple articles of commerce are used as a

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material part of the claimed invention of the ‘565 Patent.
19373.1
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COMPLAINT

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unless enjoined by this Court.
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On information and belief, Apple’s infringement of the ‘565 Patent is, has

been, and continues to be willful and deliberate.
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On information and belief, Apple will continue to infringe the ‘565 Patent

As a direct and proximate result of Apple’s infringement of the ‘565 Patent,

Calibrait has been and continues to be damaged in an amount yet to be determined.
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Unless a preliminary and permanent injunction are issued enjoining Apple

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and its officers, agents, servants and employees, and all others acting on their behalf or in

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concert with Apple, from infringing the ‘565 Patent, Calibrait will be greatly and

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irreparably harmed.
PRAYER FOR RELIEF

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WHEREFORE, Plaintiff Calibrait prays for judgment against Defendant Apple as

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follows:
(1)

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infringed, and continues to directly infringe, United States Letters Patent No. 7,447,565;
(2)

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For a judicial determination and declaration that Defendant Apple has directly

For a judicial determination and declaration that Defendant Apple has induced,

and continues to induce, the infringement of United States Letters Patent No. 7,447,565;
(3)

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For a judicial determination and declaration that Defendant Apple has

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contributorily infringed, and continues to contributorily infringe, United States Letters

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Patent No. 7,447,565;
(4)

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For a judicial determination and decree that Defendant Apple’s infringement

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of United States Letters Patent No. 7,447,565 has been, and continues to be, willful and

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deliberate;
(5)

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For a judicial determination and decree that Defendant Apple, its respective

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subsidiaries, officers, agents, servants, employees, licensees, and all other persons or

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entities acting or attempting to act in active concert or participation with it or acting on its

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behalf, be preliminarily and permanently enjoined from further infringement of the ‘565

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Patent;
19373.1

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COMPLAINT

(6)

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For a declaration that Apple notifies all of its customers and users of the

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infringing system and customers’ participation in the infringement with Apple’s

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encouragement, and that Apple encourages customers to cease all such infringing actions;
(7)

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For a judicial decree that orders Defendant Apple to account for and pay to

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Calibrait all damages caused to Calibrait by reason of Defendant Apple’s infringement

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pursuant to 35 U.S.C. Section 284, including enhanced damages under 35 U.S.C. Section

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285;

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(8)

For an award of damages according to proof at trial;

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(9)

For a judicial declaration that this case is exceptional under 35 U.S.C. Section

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285 and Defendant Apple be ordered to pay Calibrait’s costs, expenses, and reasonable

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attorney’s fees pursuant to 35 U.S.C. Sections 284 and 285;
(10) For a judicial order awarding to Calibrait’s pre-judgment and post-judgment

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interest on the damages caused to it by Defendant Apple’s infringement; and
(11) For any such other and further relief as the Court may deem just and proper

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under the circumstances.

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August 5, 2011

ONE LLP

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By: /s/ Peter R. Afrasiabi
Peter R. Afrasiabi
Attorneys for Plaintiff
Calibrait, LLC

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19373.1

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COMPLAINT

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DEMAND FOR JURY TRIAL

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Plaintiff hereby demands a jury trial pursuant to Rule 38 of the Federal Rules of

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Civil Procedure as to all issues in this lawsuit.

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August 5, 2011

ONE LLP

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By: /s/ Peter R. Afrasiabi
Peter R. Afrasiabi
Attorneys for Plaintiff
Calibrait, LLC

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19373.1

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COMPLAINT

EXHIBIT A

2JS 44 (Rev. 12/07)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided
by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating
the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS
CALIBRAIT, LLC, a California limited liability corporation
(b) County of Residence of First Listed Plaintiff

DEFENDANTS

APPLE, INC., a California corporation

San Diego

Santa Clara

County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES)

(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
LAND INVOLVED.

(c) Attorney’s (Firm Name, Address, and Telephone Number)

'11CV1759 DMS RBB

Attorneys (If Known)

Nathaniel L. Dilger, ONE LLP, 4000 MacArthur Blvd., W. Twr.,
Ste. 1100, Newport Beach, CA 92660 Tel: [phone]
II. BASIS OF JURISDICTION (Place an “X” in One Box Only)
III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an “X” in One Box for Plaintiff
u 1

U.S. Government
Plaintiff

u 3 Federal Question
(U.S. Government Not a Party)

(For Diversity Cases Only)
PTF
u 1
Citizen of This State

u 2

U.S. Government
Defendant

u 4 Diversity

Citizen of Another State

u 2

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Incorporated and Principal Place
of Business In Another State

u 5

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Citizen or Subject of a
Foreign Country

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Foreign Nation

u 6

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(Indicate Citizenship of Parties in Item III)

IV. NATURE OF SUIT
CONTRACT

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110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excl. Veterans)
153 Recovery of Overpayment
of Veteran’s Benefits
160 Stockholders’ Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

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V. ORIGIN

u 1 Original
Proceeding

and One Box for Defendant)
PTF
DEF
Incorporated or Principal Place
u 4
u 4
of Business In This State

DEF
u 1

(Place an “X” in One Box Only)
TORTS
PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers’
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
CIVIL RIGHTS
441 Voting
442 Employment
443 Housing/
Accommodations
444 Welfare
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
440 Other Civil Rights

FORFEITURE/PENALTY

PERSONAL INJURY
u 362 Personal Injury Med. Malpractice
u 365 Personal Injury Product Liability
u 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
u 370 Other Fraud
u 371 Truth in Lending
u 380 Other Personal
Property Damage
u 385 Property Damage
Product Liability
PRISONER PETITIONS
u 510 Motions to Vacate
Sentence
Habeas Corpus:
u 530 General
u 535 Death Penalty
u 540 Mandamus & Other
u 550 Civil Rights
u 555 Prison Condition

State Court

BANKRUPTCY

u 422 Appeal 28 USC 158
u 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
u 820 Copyrights
u 830 Patent
u 840 Trademark

SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS
u 870 Taxes (U.S. Plaintiff
or Defendant)
u 871 IRS—Third Party
26 USC 7609

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OTHER STATUTES

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IMMIGRATION
u 462 Naturalization Application
u 463 Habeas Corpus Alien Detainee
u 465 Other Immigration
Actions

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400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
810 Selective Service
850 Securities/Commodities/
Exchange
875 Customer Challenge
12 USC 3410
890 Other Statutory Actions
891 Agricultural Acts
892 Economic Stabilization Act
893 Environmental Matters
894 Energy Allocation Act
895 Freedom of Information
Act
900Appeal of Fee Determination
Under Equal Access
to Justice
950 Constitutionality of
State Statutes

Appeal to District

(Place an “X” in One Box Only)

u 2 Removed from

u 610 Agriculture
u 620 Other Food & Drug
u 625 Drug Related Seizure
of Property 21 USC 881
u 630 Liquor Laws
u 640 R.R. & Truck
u 650 Airline Regs.
u 660 Occupational
Safety/Health
u 690 Other
LABOR
u 710 Fair Labor Standards
Act
u 720 Labor/Mgmt. Relations
u 730 Labor/Mgmt.Reporting
& Disclosure Act
u 740 Railway Labor Act
u 790 Other Labor Litigation
u 791 Empl. Ret. Inc.
Security Act

u 3 Remanded from
Appellate Court

u 4 Reinstated or u 5 Transferred from u 6 Multidistrict
another district
Reopened
Litigation
(specify)

u 7 Judge from
Magistrate
Judgment

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

35 U.S.C. §§ 1, et seq.
VI. CAUSE OF ACTION Brief description of cause:
Patent Infringement
DEMAND $
u CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN
UNDER F.R.C.P. 23
10,000,000.00
COMPLAINT:
VIII. RELATED CASE(S)
IF ANY
DATE

(See instructions):

CHECK YES only if demanded in complaint:
✔ Yes
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u No
JURY DEMAND:

JUDGE

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

08/05/2011

/s/Peter R. Afrasiabi

FOR OFFICE USE ONLY
RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE