Adaptix, Inc. v. Apple Inc et al

Filing 1

COMPLAINT of Patent Infringement against Apple Inc, Cellco Partnership ( Filing fee $ 400, receipt number 0971-8036744.). Filed byAdaptix, Inc.. (Attachments: # 1 Exhibit A to Complaint, # 2 Exhibit B to Complaint, # 3 Civil Cover Sheet)(Shafer, Daniel) (Filed on 9/26/2013)

1
2
3
4
5
6

Christopher D. Banys (CA Sate Bar: 230038)
Richard C. Lin
(CA State Bar: 209233)
Daniel M. Shafer
(CA State Bar: 244839)
[e-mail]
[e-mail]
[e-mail]
BANYS, P.C.
1032 Elwell Court, Suite 100
Palo Alto, CA 94303
Telephone: [phone]
Facsimile: [phone]

7
8

Attorneys for Plaintiff,
ADAPTIX. INC.

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11
12

ADAPTIX, INC.

13
14
15
16

Case No. ________________
Plaintiff,

v.
APPLE, INC., and CELLCO
PARTNERSHIP d/b/a VERIZON
WIRELESS

17

COMPLAINT FOR PATENT
INFRINGEMENT
JURY TRIAL DEMANDED

Defendants.

18

ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT

19
20
21
22

This is an action for patent infringement in which plaintiff, ADAPTIX, Inc. (“ADAPTIX”),
complains against defendants, Apple, Inc. (“Apple”) and Cellco Partnership d/b/a Verizon Wireless
(“Verizon”) (collectively “the Defendants”), as follows:

23
THE PARTIES
24
1.

ADAPTIX is a Delaware corporation with its principal place of business at 4100

25
26
27
28

Midway Road, Suite 2010, Carrollton, Texas 75007.
2.

On information and belief, Apple is a California corporation with a principal place of

business at 1 Infinite Loop, Cupertino, California 95014.
COMPLAINT FOR PATENT INFRINGEMENT

1

1
2

3.

On information and belief, Verizon is a Delaware general partnership with its principal

place of business at 1 Verizon Way, Basking Ridge, New Jersey 07920.

3

JURISDICTION AND VENUE

4
4.

This action arises under the patent laws of the United States, Title 35 of the United

5
States Code. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a).
6
5.

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

7
1400(b) because Defendants have committed acts within this judicial district giving rise to this action,
8
and continue to conduct business in this District, and/or have committed acts of patent infringement
9
within this District giving rise to this action.
10
6.

On information and belief, each defendant is subject to this Court’s specific and/or

11
general personal jurisdiction pursuant to due process because they have committed acts giving rise to
12
this action within this judicial district and/or have established minimum contacts within California and
13
within this judicial district such that the exercise of jurisdiction over Defendants would not offend
14
traditional notions of fair play and substantial justice.
15
BACKGROUND

16
17

7.

On March 9, 2012 ADAPTIX filed a patent infringement suit against APPLE and

18

Verizon in the United States District Court for the Eastern District of Texas, Tyler Division, Case No.

19

6:12-cv-0124 (“the first-filed case”).

20

8.

The first-filed case alleged infringement by those defendants of U.S. Patent Nos.

21

7,454,212 and 6,947,748, the same two patents alleged against APPLE and Verizon in this Complaint,

22

as set forth in detail infra. (For convenience, these two patents may be referred to as “the Suit

23

Patents.”)

24

9.

On or about March 28, 2013, a motion to transfer the first-filed case to this District

25

filed by APPLE and Verizon was granted. Eventually, this case ended up in this Division and was

26

given Case No. 5:13-cv-1776 PSG and assigned to the Honorable Paul S. Grewal.

27
28

10.

On or about September 20, 2013, an in-person and telephone hearing was held before

Judge Grewal in a case related to the first-filed case, i.e., Case No. 5:13-cv-1774, concerning an
COMPLAINT FOR PATENT INFRINGEMENT

2

1

ADAPTIX request for leave to supplement its Infringement Contentions in the aforesaid -1774 Case

2

(the “September 20th Hearing”).

3
4
5

11.

On information and belief, counsel-of-record for APPLE and Verizon, among others,

were either present at the September 20th Hearing or on the telephone during the Hearing.
12.

Towards the end of the September 20th Hearing, ADAPTIX’s counsel stated to the

6

Court, in words or effect, that ADAPTIX is in the process of supplementing its Infringement

7

Contentions in at least the first-filed case to add as accused products APPLE’s just-newly-publicly-

8

released-that-day products known as the Apple iPhone 5s and Apple iPhone 5c. At the time of the

9

filing of this Complaint, ADAPTIX had not yet received its September 25th electronic Transcript

10
11

Order request for the September 20th Hearing.
13.

On September 26, 2013, ADAPTIX sent separate emails to APPLE’s and Verizon’s

12

counsel that stated the following: “As a follow-up to our concerns made apparent by our verbal

13

comments during last Friday’s (September 20, 2013) hearing in front of Judge Grewal, Adaptix is in

14

the process of supplementing its Infringement Contentions to add the Apple iPhone 5s and Apple

15

iPhone 5c. We understand that these products were publicly released … on or about September 20,

16

2013. Please advise whether you will oppose Adaptix’s supplementation, and if so, please provide a

17

time you will be available to meet and confer regarding the supplementation.”

18

14.

On information and belief, APPLE and Verizon were aware at least as early as

19

September 20, 2013 that ADAPTIX had formed a belief that the Apple iPhone 5s and Apple iPhone 5c

20

devices infringed one or more claims of the Suit Patents, and that ADAPTIX was seeking

21

supplementation of its Infringement Contentions in at least the first-filed cases to add as accused

22

products APPLE’s just-newly-publicly-released-that-day products known as the Apple iPhone 5s and

23

Apple iPhone 5c.

24

COUNT I
(INFRINGEMENT OF U.S. PATENT NO. 7,454,212)

25
26

15.

ADAPTIX is the owner by assignment of United States patent number 7,454,212,

27

entitled “OFDMA WITH ADAPTIVE SUBCARRIER-CLUSTER CONFIGURATION AND

28

SELECTIVE LOADING” (“the ‘212 Patent”) with ownership of all substantial rights in the ‘212
COMPLAINT FOR PATENT INFRINGEMENT

3

1

Patent, including the right to exclude others and to sue and recover damages for the past and future

2

infringement thereof. A true and correct copy of the ‘212 Patent is attached as Exhibit A.
16.
On information and belief, Apple is directly and/or indirectly infringing at least one or

3
4

more claims of the ‘212 Patent in this judicial district and elsewhere in California and the United

5

States by, among other things, making, using, offering for sale, selling and/or importing computerized

6

devices, including without limitation the iPhone 5s and iPhone 5c, which, at a minimum, directly

7

infringe the ‘212 Patent. Apple is thereby liable for infringement of the ‘212 Patent pursuant to 35

8

U.S.C. § 271. Apple’s infringement has caused damage to ADAPTIX, which infringement by the

9
10
11

Defendants and damage to ADAPTIX will continue unless and until Apple is enjoined.
17.

On information and belief, Verizon is directly and/or indirectly infringing at least one

12

or more claims of the ‘212 Patent in this judicial district and elsewhere in California and the United

13

States by, among other things, making, using, offering for sale, selling and/or importing computerized

14

devices, including without limitation the iPhone 5s and iPhone 5c which, at a minimum, directly

15

infringe the ‘212 Patent. Verizon is thereby liable for infringement of the ‘212 Patent pursuant to 35

16

U.S.C. § 271. Verizon’s infringement has caused damage to ADAPTIX, which infringement and

17
18
19

damage will continue unless and until Verizon is enjoined.
18.

Defendants directly contribute to and induce infringement through supplying infringing

20

systems and components to customers. Defendants’ customers who purchase systems and components

21

thereof and operate such systems and components thereof in accordance with defendants’ instructions

22

directly infringe one or more claims of the ‘212 Patent in violation of 35 U.S.C. § 271.

23

19.

The infringement by each defendant identified in this Count has caused irreparable

24
injury to ADAPTIX for which remedies at law are inadequate. Considering the balance of the
25
26
27

hardships between the parties, a remedy in equity, such as a permanent injunction is warranted and
such a remedy would be in the public interest.

28
COMPLAINT FOR PATENT INFRINGEMENT

4

1

COUNT II
(INFRINGEMENT OF U.S. PATENT NO. 6,947,748)

2
3

20.

ADAPTIX is the owner by assignment of United States patent number 6,947,748

4

entitled “OFDMA WITH ADAPTIVE SUBCARRIER-CLUSTER CONFIGURATION AND

5

SELECTIVE LOADING” (“the ‘748 patent”) with ownership of all substantial rights in the ‘748

6

patent, including the right to exclude others and to sue and recover damages for the past and future

7

infringement thereof. A true and correct copy of the ‘748 patent is attached as Exhibit B.

8
9

21.

On information and belief, Apple is directly and/or indirectly infringing at least one or

more claims of the ‘748 Patent in this judicial district and elsewhere in California and the United

10

States by, among other things, making, using, offering for sale, selling and/or importing computerized

11

communications devices, including without limitation the iPhone 5s and iPhone 5c, which, at a

12

minimum, directly infringe the ‘748 Patent. Apple is thereby liable for infringement of the ‘748

13

Patent pursuant to 35 U.S.C. § 271. Apple’s infringement has caused damage to ADAPTIX, which

14

infringement by Defendants and damage to ADAPTIX will continue unless and until Apple is

15

enjoined.

16

22.

On information and belief, Verizon is directly and/or indirectly infringing at least one

17

or more claims of the ‘748 patent in this judicial district and elsewhere in California and the United

18

States by, among other things, making, using, offering for sale, selling and/or importing computerized

19

devices, including without limitation the iPhone 5s and iPhone 5c which, at a minimum, directly

20

infringe the ‘748 patent. Verizon is thereby liable for infringement of the ‘748 patent pursuant to 35

21

U.S.C. § 271. Verizon’s infringement has caused damage to ADAPTIX, which infringement and

22

damage will continue unless and until Verizon is enjoined.

23

23.

Defendants directly contribute to and induce infringement through supplying infringing

24

systems and components to customers. Defendants’ customers who purchase systems and components

25

thereof and operate such systems and components thereof in accordance with Defendants’ instructions

26

directly infringe one or more claims of the ‘748 patent in violation of 35 U.S.C. § 271.

27
28

24.

The infringement by each defendant identified in this Count has caused irreparable

injury to ADAPTIX for which remedies at law are inadequate. Considering the balance of the
COMPLAINT FOR PATENT INFRINGEMENT

5

1

hardships between the parties, a remedy in equity, such as a permanent injunction is warranted and

2

such a remedy would be in the public interest.

3

PRAYER FOR RELIEF

4
Wherefore, ADAPTIX respectfully requests that this Court enter:
5
A.

Judgment in favor of ADAPTIX that each defendant has infringed the ‘212 and ‘748

6
patents as aforesaid;
7
B.

A permanent injunction enjoining each defendant, its officers, directors, agents,

8
servants, affiliates, employees, divisions, branches, subsidiaries, parents and all others acting in active
9

concert or privity therewith from direct, indirect and/or joint infringement of the ‘212 and ‘748 patents

10
pursuant to 35 U.S.C. § 283;
11
C.

Judgment and order requiring each defendant to pay ADAPTIX its damages with pre-

12
and post-judgment interest thereon pursuant to 35 U.S.C. § 284; and
13
D.

Any and all further relief to which the Court may deem ADAPTIX entitled.

14
DEMAND FOR JURY TRIAL

15

ADAPTIX requests a trial by jury on all issues so triable by right pursuant to Fed. R. Civ. P.

16
17

38.

18
19

Date: September 26, 2013

ADAPTIX, INC.
By: _/s/ Daniel M. Shafer_________________
Christopher D. Banys (CA State Bar: 230038)
Richard C. Lin
(CA State Bar: 209233)
Daniel M. Shafer
(CA State Bar: 244839)
[e-mail]
[e-mail]
[e-mail]
BANYS, P.C.
1032 Elwell Court, Suite 100
Palo Alto, CA 94303
Telephone: [phone]
Facsimile: [phone]

20
21
22
23
24
25
26
27

Paul J. Hayes
Steven E. Lipman

28
COMPLAINT FOR PATENT INFRINGEMENT

6

HAYES MESSINA GILMAN & HAYES, LLC
300 Brickstone Square, 9th Floor
Andover, MA 01810
[e-mail]
[e-mail]
Telephone: [phone]
Facsimile: [phone]

1
2
3
4
5

ATTORNEYS FOR THE PLAINTIFF
ADAPTIX, INC.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COMPLAINT FOR PATENT INFRINGEMENT

7