Google Inc. v. Rockstar Consortium US LP et al
Filing
20
MOTION to Dismiss for Lack of Jurisdiction UNDER FED. R. CIV. P. 12(b)(2) AND 12(b)(3) FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE AND TO DECLINE EXERCISING JURISDICTION UNDER THE DECLARATORY JUDGMENT ACT filed by MobileStar Technologies LLC, Rockstar Consortium US LP. Motion Hearing set for 3/13/2014 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 2/6/2014. Replies due by 2/13/2014. (Attachments: # 1 Declaration of Afzal Dean, # 2 Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H)(Reichman, Courtland) (Filed on 1/23/2014)
EXHIBIT C
Case 2:13-cv-00896-JRG Document 1 Filed 10/31/13 Page 1 of 47 PageID #: 1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
ROCKSTAR CONSORTIUM US LP, §
AND MOBILESTAR TECHNOLOGIES §
§
LLC
§
§
PLAINTIFFS
v.
§ Civil Action No. 2:13-cv-896
§
§
HUAWEI INVESTMENT & HOLDING
§ JURY TRIAL REQUESTED
CO., LTD., HUAWEI TECHNOLOGIES
§
CO., LTD., HUAWEI DEVICE (HONG
§
KONG) CO., LTD, HUAWEI
TECHNOLOGIES USA, INC., HUAWEI
DEVICE USA INC., HUAWEI
TECHNOLOGIES COOPERATIEF U.A.,
and FUTUREWEI TECHNOLOGIES,
INC.
DEFENDANTS.
PLAINTIFFS ROCKSTAR CONSORTIUM US LP AND MOBILESTAR
TECHNOLOGIES LLC’S ORIGINAL COMPLAINT
Plaintiffs Rockstar Consortium US LP (“Rockstar”) and MobileStar Technologies
LLC (“MobileStar”) file this Original Complaint for patent infringement under 35 U.S.C.
§ 271 and in support thereof would respectfully show the Court the following:
PARTIES
1.
Plaintiff Rockstar Consortium US LP (“Rockstar”) is a limited partnership
organized and existing under the laws of the State of Delaware, and maintains its
principal place of business at Legacy Town Center 1, 7160 North Dallas Parkway Suite
No. 250, Plano, TX 75024.
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2.
Plaintiff MobileStar Technologies LLC (“MobileStar”) is a subsidiary of
Rockstar and is a limited liability corporation organized and existing under the laws of
the State of Delaware, and maintains its principal place of business at Legacy Town
Center 1, 7160 North Dallas Parkway Suite No. 250, Plano, TX 75024.
3.
Upon information and belief, Defendant Huawei Investment & Holding
Co., Ltd. is a corporation organized and existing under the laws of the People’s Republic
of China with a principal place of business at Bantian, Longgan District, Shenzhen,
518129, China.
4.
Upon information and belief, Defendant Huawei Technologies Co., Ltd. is
a corporation organized and existing under the laws of the People’s Republic of China
with a principal place of business at Bantian, Longgan District, Shenzhen, 518129,
China, and is a subsidiary of Defendant Huawei Investment & Holding Co., Ltd.
5.
Upon information and belief, Defendant Huawei Device (Hong Kong)
Co., Ltd. is a corporation organized and existing under the laws of the People’s Republic
of China with a principal place of business at Bantian, Longgan District, Shenzhen,
518129, China, and is a subsidiary of Defendant Huawei Technologies Co., Ltd.
6.
Upon information and belief, Defendant Huawei Technologies USA, Inc.
is a corporation organized and existing under the laws of the State of Texas with a
principal place of business at 5700 Tennyson Parkway, Suite #500 Plano, Texas 75024,
and is a subsidiary of Huawei Technologies Coöperatief U.A.
7.
Upon information and belief, Defendant Huawei Device USA Inc. is a
corporation organized and existing under the laws of the State of Texas with a principal
2
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place of business at 5700 Tennyson Parkway, Suite #600 Plano, Texas 75024, and is a
subsidiary of Defendant Huawei Device (Hong Kong) Co., Ltd.
8.
Upon
information
and
belief,
Defendant
Huawei
Technologies
Coöperatief U.A. is a corporation organized and existing under the laws of the
Netherlands with a principal place of business at Karspeldreef 4, 1101CJ Amsterdam
South, Netherlands, and is a subsidiary of Defendant Huawei Technologies Co., Ltd.
9.
Upon information and belief, Defendant Futurewei Technologies Inc. is a
corporation organized and existing under the laws of the State of Texas with a principal
place of business at 5700 Tennyson Parkway, Suite #500 Plano, Texas 75024, and is a
subsidiary of Defendant Huawei Technologies Coöperatief U.A.
JURISDICTION AND VENUE
10.
This is an action for patent infringement under the Patent Laws of the
United States, 35 U.S.C. § 271. This Court has exclusive subject matter jurisdiction over
this case for patent infringement under 28 U.S.C. § 1338.
11.
Venue is proper in this Court pursuant to 28 U S.C. §§ 1391 and 1400(b).
12.
This Court has personal jurisdiction over Defendants Huawei Investment
& Holding Co., Ltd., Huawei Technologies Co., Ltd., Huawei Device (Hong Kong) Co.,
Ltd., Huawei Technologies USA, Inc., Huawei Device USA Inc., Huawei Technologies
Coöperatief U.A., and Futurewei Technologies Inc. (collectively, “Huawei”). Huawei has
conducted and does conduct business within the State of Texas. Huawei, directly or
through subsidiaries or intermediaries (including distributors, retailers, and others), ships,
distributes, offers for sale, sells, and advertises (including the provision of an interactive
web page) its products (including its infringing products) and/or services in the United
3
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States, the State of Texas, and the Eastern District of Texas. Huawei, directly and
through subsidiaries or intermediaries (including distributors, retailers, and others), has
purposefully and voluntarily placed one or more of its infringing products and/or
services, as described below, into the stream of commerce with the expectation that they
will be purchased and used by consumers in the Eastern District of Texas.
These
infringing products and/or services have been and continue to be purchased and used by
consumers in the Eastern District of Texas.
Huawei has committed acts of patent
infringement within the State of Texas and, more particularly, within the Eastern District
of Texas.
ASSERTED PATENTS
13.
On November 17, 1998, U.S. Patent No. 5,838,551 (“the ’551 Patent”)
entitled “Electronic Package Carrying an Electronic Component and Assembly of Mother
Board and Electronic Package” was duly and legally issued with Yee-Ning Chan as the
named inventor after full and fair examination. Rockstar owns all rights, title, and
interest in and to the ’551 Patent and possesses all rights of recovery under the ’551
Patent. MobileStar is the exclusive licensee under the ’551 Patent.
14.
On March 14, 2000, U.S. Patent No. 6,037,937 (“the ’937 Patent”) entitled
“Navigation Tool for Graphical User Interface” was duly and legally issued with Brian
Finlay Beaton, Colin Donald Smith, and Bruce Dale Stalkie as the named inventors after
full and fair examination. MobileStar owns all rights, title, and interest in and to the ’937
Patent and possesses all rights of recovery under the ’937 Patent.
15.
On October 3, 2000, U.S. Patent No. 6,128,298 (“the ’298 Patent”)
entitled “Internet Protocol Filter” was duly and legally issued with Bruce Anthony
4
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Wootton and William G. Colvin as the named inventors after full and fair examination.
Rockstar owns all rights, title, and interest in and to the ’298 Patent and possesses all
rights of recovery under the ‘298 Patent. MobileStar is the exclusive licensee under the
’298 Patent.
16.
On December 25, 2001, U.S. Patent No. 6,333,973 (“the ’973 Patent”)
entitled “Integrated Message Center” was duly and legally issued with Colin Donald
Smith and Brian Finlay Beaton as the named inventors after full and fair examination.
MobileStar owns all rights, title, and interest in and to the ’973 Patent and possesses all
rights of recovery under the ‘973 Patent.
17.
On October 8, 2002, U.S. Patent No. 6,463,131 (“the ’131 Patent”)
entitled “System and Method for Notifying a User of an Incoming Communication
Event” was duly and legally issued with Marilyn French-St. George, Mitch A. Brisebois
and Laura A. Mahan as the named inventors after full and fair examination. MobileStar
owns all rights, title, and interest in and to the ’131 Patent and possesses all rights of
recovery under the ‘131 Patent.
18.
On July 20, 2004, U.S. Patent No. 6,765,591 (“the ’591 Patent”) entitled
“Managing a Virtual Private Network” was duly and legally issued with Matthew W.
Poisson, Melissa L. Desroches, and James M. Milillo as the named inventors after full
and fair examination. MobileStar owns all rights, title, and interest in and to the ’591
Patent and possesses all rights of recovery under the ‘591 Patent.
19.
On August 30, 2005, U.S. Patent No. 6,937,572 (“the ’572 Patent”)
entitled “Call Trace on a Packet Switched Network” was duly and legally issued with
Brian B. Egan and Milos Vodsedalek as the named inventors after full and fair
5
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examination. Rockstar owns all rights, title, and interest in and to the ’572 Patent and
possesses all rights of recovery under the ‘572 Patent.
GENERAL ALLEGATIONS
20.
Huawei
has
infringed
and
continues
to
infringe
each
of
the ’551, ’937, ’298, ’973, ’131, ’591, and ’572 Patents by engaging in acts constituting
infringement under 35 U.S.C. § 271(b), (b), (c), and/or (f), including but not necessarily
limited to one or more of making, using, selling and offering to sell, in this District and
elsewhere in the United States, and importing into this District and elsewhere in the
United States, certain mobile communication devices having a version (or an adaption
thereof) of Android operating system (“Huawei Mobile Communication Devices”).
21.
Huawei is doing business in the United States and, more particularly, in
the Eastern District of Texas by making, using, selling, importing, and/or offering for sale
Huawei Mobile Communication Devices, including but not limited to Huawei’s family of
smart phones, including but not limited to the Huawei M865 MUVE, Huawei Ascend II,
and Huawei Premia 4G M931, and Huawei’s family of tablets, including but not limited
to the Huawei MediaPad and Huawei IDEOS S7 Slim, and other products that infringe
the patent claims involved in this action or by transacting other business in this District.
COUNT ONE
PATENT INFRINGEMENT BY HUAWEI
22.
Plaintiffs incorporate by reference paragraphs 1-21 as if fully set forth
herein. As described below, Huawei has infringed and/or continues to infringe the ‘551,
‘937, ‘298, ‘973, ‘131, ‘591, and ‘572 Patents.
6
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23.
At least the Huawei Mobile Communication Devices, including the
Huawei Premia 4G M931, infringe at least claim 1 of the ‘551 Patent. Huawei makes,
uses, sells, offers for sale, imports, exports, supplies and/or distributes within the United
States these products and thus directly infringes one or more claims of the ’551 Patent,
including at least claim 1.
24.
Huawei indirectly infringes the ’551 patent by inducing infringement by
others, such as resellers, of at least claim 1, in accordance with 35 U.S.C. § 271(b) in this
District and elsewhere in the United States. Direct infringement is the result of activities
performed by the manufacturers, resellers, and end-users of the Huawei Mobile
Communication Devices, including the Huawei Premia 4G M931. Huawei had actual
notice of the ’551 Patent at least by September 11, 2013, in view of a communication
from Rockstar and/or its predecessors-in-interest to Huawei.
25.
Huawei’s affirmative acts of selling Huawei Mobile Communication
Devices, including the Huawei Premia 4G M931, causing the Huawei Mobile
Communication Devices to be manufactured and distributed, and providing instruction
manuals for Huawei Mobile Communication Devices induced Huawei’s manufacturers
and resellers to make or use Huawei Mobile Communication Devices in their normal and
customary way to infringe the ’551 patent. Through its manufacture and sales of Huawei
Mobile Communication Devices, Huawei specifically intended its resellers and
manufacturers to infringe the ’551 patent; further, Huawei was aware that these normal
and customary activities would infringe the ’551 patent. Huawei performed the acts that
constitute induced infringement, and would induce actual infringement, with the
7
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knowledge of the ’551 patent and with the knowledge or willful blindness that the
induced acts would constitute infringement.
26.
Accordingly, a reasonable inference is that Huawei specifically intends for
others, such as resellers and end-use customers, to directly infringe one or more claims of
the ‘551 Patent in the United States because Huawei has knowledge of the ‘551 Patent
and Huawei actually induces others, such as resellers and end-use customers, to directly
infringe the ’551 patent, by using, by selling, exporting, supplying and/or distributing
within the United States, Huawei Mobile Communication Devices for resale to others,
such as resellers and end-use customers. Huawei knew or should have known that such
actions would induce actual infringement.
27.
Huawei indirectly infringes the ‘551 Patent by contributing to
infringement by others, such as resellers and end-use customers, in accordance with 35
U.S.C. § 271(c) in this District and elsewhere in the United States. Direct infringement is
the result of activities performed by the manufacturers, resellers, and end-users of
Huawei Mobile Communication Devices. Huawei had actual notice of the ’551 Patent at
least by September 11, 2013, in view of a Rockstar communication to Huawei.
28.
Huawei Mobile Communication Devices, including the Huawei Premia
4G M931, include at least one electronic package comprising a component that is located
between an EMI shield and a ground member for performing shielding operations. The
EMI shield is incorporated into the electronic package, which is then mounted to a circuit
board in Huawei Mobile Communication Devices, and on information and belief, the
electronic component does not function in an acceptable manner absent the EMI
shielding. Furthermore, the electronic package incorporating the EMI shield does not
8
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operate in isolation, but is designed to operate within the Mobile Communication Device,
and absent the EMI shielding of the electronic component, Huawei Mobile
Communication Devices would not function in an acceptable manner.
29.
A reasonable inference to be drawn from the facts set forth is that the EMI
shielded electronic package in Huawei Mobile Communication Devices, including the
Huawei Premia 4G M931, is especially made or especially adapted to operate in a
Huawei Mobile Communication Device as an EMI shield.
30.
A reasonable inference to be drawn from the facts set forth is that the EMI
shielded electronic package is not a staple article or commodity of commerce and that the
use of the EMI shielded electronic package is required for operation of Huawei Mobile
Communication Devices, including the Huawei Premia 4G M931. Any other use would
be unusual, far-fetched, illusory, impractical, occasional, aberrant, or experimental.
31.
The EMI shielded electronic package in Huawei Mobile Communication
Devices, including the Huawei Premia 4G M931, are each a material part of the invention
of the ’551 patent and are especially made for the infringing manufacture, sale, and use of
Huawei Mobile Communication Devices.
Huawei Mobile Communication Devices,
including the EMI shielded electronic package, are especially made or adapted as an
electronic package that infringes the ’551 patent. Because the sales and manufacture of
Huawei Mobile Communication Devices including the EMI shielded electronic package
infringe the ’551 patent, Huawei’s sales of its infringing products have no substantial
non-infringing uses.
32.
Accordingly, a reasonable inference is that Huawei offers to sell, or sells
within the United States a component of a patented machine, manufacture, combination,
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or composition, or a material or apparatus for use in practicing a patented process,
constituting a material part of the invention, knowing the same to be especially made or
especially adapted for use in an infringement of such patent, and not a staple article or
commodity of commerce suitable for substantial non-infringing use. Huawei provides to
others Huawei Mobile Communication Devices, including the Huawei Premia 4G M931,
with distinct and separate components, including hardware components, which have no
substantial non-infringing use.
33.
At least Huawei Mobile Communication Devices, including the Huawei
M865 MUVE, with an operating system configured and installed by Huawei to support
Gallery, Email, Maps and Browser functionality, infringe at least claim 13 of the ‘937
Patent. Huawei makes, uses, tests, sells, offers for sale, imports, exports, supplies and/or
distributes within the United States these devices and thus directly infringes at least claim
13 of the ‘937 Patent.
34.
Huawei indirectly infringes the ‘937 patent by inducing infringement by
others of at least claim 13, such as resellers, in accordance with 35 U.S.C. § 271(b) in this
District and elsewhere in the United States. Direct infringement is the result of activities
performed by the manufacturers, resellers, and end-users of the Huawei Mobile
Communication Devices. Huawei received actual notice of the ’937 Patent at least by
March 12, 2012 in view of a communication from Rockstar, and/or its predecessors-ininterest, to Huawei.
35.
Huawei’s affirmative acts of selling Huawei Mobile Communication
Devices, causing the Huawei Mobile Communication Devices to be manufactured, and
providing instruction manuals for Huawei Mobile Communication Devices induced
10
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Huawei’s manufacturers and resellers to make or use the Huawei Mobile Communication
Devices in their normal and customary way to infringe the ‘937 patent. Through its
manufacture and sales of Huawei Mobile Communication Devices, Huawei specifically
intended its resellers and manufacturers to infringe the ‘937 patent; further, Huawei was
aware that these normal and customary activities would infringe the ‘937 patent. Huawei
performed the acts that constitute induced infringement, and would induce actual
infringement, with knowledge of the ‘937 patent and with the knowledge or willful
blindness that the induced acts would constitute infringement.
36.
Accordingly, a reasonable inference is that Huawei specifically intends for
others, such as resellers and end-use customers, to directly infringe one or more claims of
the ‘937 patent in the United States because Huawei has knowledge of the ‘937 patent
and actually induces others, such as resellers and end-use customers, to directly infringe,
by using, selling, exporting, supplying and/or distributing within the United States,
Huawei Communication Devices for resale to others, such as resellers and end-use
customers. Huawei knew or should have known that such actions would induce actual
infringement.
37.
The use of at least Huawei Mobile Communication Devices, including the
Huawei M865 MUVE, with an operating system configured and installed by Huawei to
support Gallery, Email, Maps and Browser functionality as intended by Huawei infringes
at least method claim 1 of the ‘937 Patent. Huawei uses these products and thus directly
infringes at least method claim 1 of the ‘937 Patent.
38.
In addition, Huawei provides at least Huawei Mobile Communication
Devices, including the Huawei M865 MUVE, with an operating system configured and
11
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installed by Huawei to support Gallery, Email, Maps, and Browser functionality to
others, such as resellers and end-use customers, in the United States who, in turn, use
these products to infringe at least method claim 1 of the ‘937 Patent.
39.
Huawei indirectly infringes the ’937 patent by inducing infringement by
others, such as resellers and end-use customers, in accordance with 35 U.S.C. § 271(b) in
this District and elsewhere in the United States. Direct infringement is the result of
activities performed by the manufacturers, resellers, and end-users of the Huawei Mobile
Communication Devices, including the Huawei M865 MUVE. Huawei received actual
notice of the ’937 Patent at least by March 12, 2012, in view of a communication from
Rockstar and/or its predecessors-in-interest to Huawei.
40.
Huawei provides at least Huawei Mobile Communication Devices,
including the Huawei M865 MUVE, with an operating system configured and installed
by Huawei to support Gallery, Email, Maps and Browser functionality to others, such as
resellers and end-use customers, in the United States who, in turn, use these products to
infringe the ’937 Patent.
Through its manufacture and sales of Huawei Mobile
Communication Devices, Huawei specifically intended its resellers and manufacturers to
infringe the ’937 patent.
41.
Huawei specifically intends for others, such as resellers and end-use
customers, to directly infringe one or more claims of the ’937 Patent in the United States.
For example, Huawei provides instructions to resellers and end-use customers regarding
the use and operation of Huawei’s products in an infringing way. Such instructions
include, for example, at least the M865 MUVE user guide (available at
http://www.huaweidevice.com/worldwide/downloadCenter.do?method=toDownloadFile
12
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&flay=document&softid=NDI4OTk=) (accessed October 30, 2013). When resellers and
end-use customers follow such instructions, they directly infringe the ‘937 Patent.
Huawei knows that by providing such instructions, resellers and end-use customers
follow those instructions, and directly infringe the ‘937 Patent. Huawei thus knows that
its actions induce the infringement.
42.
Huawei performed the acts that constitute induced infringement, and
would induce actual infringement, with the knowledge of the ’937 patent and with the
knowledge or willful blindness that the induced acts would constitute infringement.
43.
Huawei indirectly infringes the ’937 patent, by contributing to
infringement by others, such as resellers and end-use customers, in accordance with 35
U.S.C. § 271(b) in this District and elsewhere in the United States. Direct infringement is
the result of activities performed by the manufacturers, resellers, and end-users of
Huawei Mobile Communication Devices including the Huawei M865 MUVE. Huawei
received actual notice of the ’937 Patent at least by March 12, 2012 in view of a
communication from Rockstar and/or its predecessors-in-interest to Huawei, and also
received knowledge as of the date this lawsuit was filed.
44.
Huawei Mobile Communication Devices, including the Huawei M865
MUVE, include functionality that, inter alia, displays a navigable graphical user interface
(“navigable GUI”) that permits a user to manipulate and control the contents of the
display to maximize the use of display real estate. This navigable GUI is included in
Huawei Mobile Communication Devices with an operating system configured and
installed by Huawei to support at least the Gallery, Email, Maps, and Browser
functionalities. On information and belief, these functionalities cannot operate in an
13
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acceptable manner absent the navigable GUI, as it is included in every Huawei Mobile
Communication Device.
45.
A reasonable inference to be drawn from the facts set forth is that the
navigable GUI as included in Huawei Mobile Communication Devices, including the
Huawei M865 MUVE, is especially made or especially adapted to operate on a Huawei
Mobile Communication Device as a navigable GUI that permits a user to manipulate or
control the contents of the display to maximize the use of display real estate on the user’s
Huawei Mobile Communication Devices.
46.
A reasonable inference to be drawn from the facts set forth is that the
navigable GUI as included in the Mobile Communication Device is not a staple article or
commodity of commerce and that the use of the navigable GUI in Huawei Mobile
Communication Devices is required for the operation of Huawei Mobile Communication
Devices, including the Huawei M865 MUVE. Any other use would be unusual, farfetched, illusory, impractical, occasional, aberrant, or experimental.
47.
Huawei Mobile Communication Devices, including the Huawei M865
MUVE, with the navigable GUI are each a material part of the invention of the ’937
patent and are especially made for the infringing manufacture, sale, and use of Huawei
Mobile Communication Devices.
Huawei Mobile Communication Devices with the
navigable GUI are especially made or adapted as a navigable GUI that infringes the ’937
patent. Because the sales and manufacture of Huawei Mobile Communication Devices
with a navigable GUI infringes the ’937 patent, Huawei’s sales of its infringing products
have no substantial non-infringing uses.
14
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48.
Accordingly, a reasonable inference is that Huawei offers to sell, or sells
within the United States a component of a patented machine, manufacture, combination,
or composition, or a material or apparatus for use in practicing the ’937 patent,
constituting a material part of the invention, knowing the same to be especially made or
especially adapted for use in an infringement of such patent, and not a staple article or
commodity of commerce suitable for substantial non-infringing use. Huawei provides to
others Huawei Mobile Communication Devices, including the Huawei M865 MUVE,
with distinct and separate components, including software components, which have no
substantial non-infringing use.
49.
At least Huawei Mobile Communication Devices, including the Huawei
M865 MUVE and Huawei MediaPad, infringe at least claims 27 and 31 of the ‘298
Patent. Huawei makes, uses, sells, offers for sale, imports, exports, supplies and/or
distributes within the United States these devices and thus directly infringes at least
claims 27 and 31 of the ‘298 Patent.
50.
Huawei indirectly infringes the ‘298 patent by inducing infringement by
others of at least claim 13, such as resellers, in accordance with 35 U.S.C. § 271(b) in this
District and elsewhere in the United States. Direct infringement is the result of activities
performed by the manufacturers, resellers, and end-users of the Huawei Mobile
Communication Devices. Huawei received actual notice of the 298 Patent at least by
July 29, 2012 in view of a communication from Rockstar, and/or its predecessors-ininterest, to Huawei.
51.
Huawei’s affirmative acts of selling Huawei Mobile Communication
Devices, causing the Huawei Mobile Communication Devices to be manufactured, and
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providing instruction manuals for Huawei Mobile Communication Devices induced
Huawei’s manufacturers and resellers to make or use the Huawei Mobile Communication
Devices in their normal and customary way to infringe the ‘298 patent. Through its
manufacture and sales of Huawei Mobile Communication Devices, Huawei specifically
intended its resellers and manufacturers to infringe the ‘298 patent; further, Huawei was
aware that these normal and customary activities would infringe the ‘298 patent. Huawei
performed the acts that constitute induced infringement, and would induce actual
infringement, with knowledge of the ‘298 patent and with the knowledge or willful
blindness that the induced acts would constitute infringement.
52.
Accordingly, a reasonable inference is that Huawei specifically intends for
others, such as resellers and end-use customers, to directly infringe one or more claims of
the ‘298 patent in the United States because Huawei has knowledge of the ‘298 patent
and actually induces others, such as resellers and end-use customers, to directly infringe,
by using, selling, exporting, supplying and/or distributing within the United States,
Huawei Communication Devices for resale to others, such as resellers and end-use
customers. Huawei knew or should have known that such actions would induce actual
infringement.
53.
The use of at least Huawei Mobile Communication Devices, including the
Huawei M865 MUVE and Huawei MediaPad, that support the Mobile Hotspot
functionality as intended by Huawei infringes at least method claims 14 and 24 of the
‘298 Patent. Huawei uses these products and thus directly infringes at least method
claims 14 and 24 of the ‘298 Patent.
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54.
In addition, Huawei provides at least Huawei Mobile Communication
Devices, including the Huawei M865 MUVE and Huawei MediaPad, that support the
Mobile Hotspot functionality to others, such as resellers and end-use customers, in the
United States who, in turn, use these products to infringe at least method claims 14 and
24 of the ‘298 Patent.
55.
Huawei indirectly infringes the ’298 patent by inducing infringement by
others, such as resellers and end-use customers, in accordance with 35 U.S.C. § 271(b) in
this District and elsewhere in the United States. Direct infringement is the results of
occurs by activities performed by the manufacturers, resellers, and end-users of Huawei
Mobile Communication Devices, including the Huawei M865 MUVE and Huawei
MediaPad, in their intended use, including a customer’s use of the Mobile Hotspot
functionality. Huawei received actual notice of the ’298 Patent at least by July 29, 2012
in view of a communication from Rockstar and/or its predecessors-in-interest to Huawei.
56.
Huawei’s affirmative acts of selling its Huawei Mobile Communication
Devices, including the Huawei M865 MUVE and Huawei MediaPad, and providing
instruction manuals induced the end-users of Huawei Mobile Communication Devices to
use Huawei Mobile Communication Devices in their normal and customary way to
infringe the ’298 patent at least through using Mobile Hotspot functionality. Huawei also
provides instructions, including at least the M865 MUVE user guide (available at
http://www.huaweidevice.com/worldwide/downloadCenter.do?method=toDownloadFile
&flay=document&softid=NDI4OTk=) (accessed October 30, 2013) and the MediaPad
User
Guide
(available
at
http://www.huaweidevice.com/worldwide/downloadCenter.do?method=toDownloadFile
17
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&flay=document&softid=NDY2NzQ=) (accessed October 30, 2013) for using the Mobile
Hotspot functionality. Through its sales of Huawei Mobile Communication Devices with
Mobile Hotspot functionality, Huawei specifically intended the end-users of Huawei
Mobile Communication Devices to infringe the ’298 patent; further, Huawei was aware
that the normal and customary use of Mobile Hotspot functionality would infringe the
’298 patent. Huawei also enticed its end-users to use the Mobile Hotspot functionality by
providing instruction manuals and also providing Mobile Hotspot functionality. Huawei
performed the acts that constituted induced infringement, and would induce actual
infringement, with the knowledge of the ’298 patent and with the knowledge or willful
blindness that the induced acts would constitute infringement.
57.
Accordingly, a reasonable inference is that Huawei actively induces
infringement of the ‘298 Patent by others, such as resellers and end-use customers.
Huawei specifically intends for others, such as resellers and end-use customers, to
directly infringe one or more claims of the ‘298 Patent in the United States because
Huawei had knowledge of the ‘298 Patent, and Huawei actually induces infringement by
providing instructions to resellers and end-use customers regarding the use and operation
of Huawei Mobile Communication Devices in an infringing way. Such instructions
include
at
least
the
M865
MUVE
user
guide
(available
at
http://www.huaweidevice.com/worldwide/downloadCenter.do?method=toDownloadFile
&flay=document&softid=NDI4OTk=) (accessed October 30, 2013) and the MediaPad
User
Guide
(available
at
http://www.huaweidevice.com/worldwide/downloadCenter.do?method=toDownloadFile
&flay=document&softid=NDY2NzQ=) (accessed October 30, 2013). When resellers and
18
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end-use customers follow such instructions, they directly infringe the ‘298 Patent.
Huawei knows that by providing such instructions, resellers and end-use customers
follow those instructions, and directly infringe the ‘298 Patent. Huawei thus knows that
its actions induce the infringement.
58.
Huawei indirectly infringes the ‘298 Patent by contributing to
infringement by others, such as resellers and end-use customers, in accordance with 35
U.S.C. § 271(c) in this District and elsewhere in the United States. Direct infringement is
the result of occurs by activities performed by the manufacturers, resellers, and end-users
of Huawei Mobile Communication Devices, including the Huawei M865 MUVE and
Huawei MediaPad, in their intended use, including a customer’s use of the Mobile
Hotspot functionality. Huawei received actual notice of the ’298 Patent at least by July
29, 2012 in view of a Rockstar communication to Huawei.
59.
Huawei Mobile Communication Devices, including the Huawei M865
MUVE and Huawei MediaPad, with the Mobile Hotspot functionality allow wireless
devices from a first, or private, network to connect to a second, or public, network such
as the Internet. The Mobile Hotspot functionality is designed to route data packets
between wireless devices tethered to the Mobile Hotspot to nodes on a public network
such as the Internet, and cannot function in a manner that does not utilize the Mobile
Hotspot functionality available to Huawei Mobile Communication Devices.
Upon
information and belief, the Mobile Hotspot functionality is designed to entice a user to
access nodes in a second, or public, network such as the Internet.
60.
A reasonable inference to be drawn from the facts set forth is that the
Mobile Hotspot functionality is especially made or especially adapted to operate on a
19
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mobile communication device for providing access for wireless devices in a first, or
private, network to nodes in a second, or public, network.
61.
A reasonable inference to be drawn from the facts set forth is that the
Mobile Hotspot functionality is not a staple article or commodity of commerce and that
the use of the Mobile Hotspot functionality of Huawei Mobile Communication Devices,
including the Huawei M865 MUVE and Huawei MediaPad, is for interfacing first and
second data communications networks, e.g., a private network and a public network such
as the Internet. Any other use would be unusual, far-fetched, illusory, impractical,
occasional, aberrant, or experimental.
62.
Huawei
Mobile
Communication
Devices
with
Mobile
Hotspot
functionality, including the Huawei M865 MUVE and Huawei MediaPad, are each a
material part of the ’298 patent and especially made for the infringing use of the Mobile
Hotspot functionality for interfacing private and public data communication networks.
Huawei Mobile Communication Devices with the Mobile Hotspot functionality are
especially made or adapted to provide access for wireless devices in a first, or private,
network through the Mobile Communication Device, to nodes in a second, or public,
network that perform or facilitate performance of the steps that infringe the ’298 patent.
Furthermore, Huawei provides user manuals describing the uses of Huawei Mobile
Communication Devices that infringe the ’298 patent.
Because the sales and
manufacture of Huawei Mobile Communication Devices with Mobile Hotspot
functionality infringes the ’298 patent, Huawei’s sales of its infringement products have
no substantial non-infringing uses.
20
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63.
Accordingly, a reasonable inference is that Huawei offers to sell, or sells
within the United States a component of a patented machine, manufacture, combination,
or composition, or a material or apparatus for use in practicing a patented process,
constituting a material part of the invention, knowing the same to be especially made or
especially adapted for use in an infringement of such patent, and not a staple article or
commodity of commerce suitable for substantial non-infringing use. Huawei provides to
others Huawei Mobile Communication Devices, including the Huawei M865 MUVE and
Huawei MediaPad, to support Mobile Hotspot functionality.
Huawei installs and
configures Huawei Mobile Communication Devices with distinct and separate
components, including software components, which are used only to perform the
infringing method claims.
64.
At least Huawei Mobile Communication Devices, including Huawei
M865 MUVE, with an operating system configured and installed by Huawei to support
an integrated notification message center functionality infringe at least claims 1 and 21 of
the ‘973 Patent. Huawei makes, uses, sells, tests, uses, offers for sale, imports, exports,
supplies and/or distributes within the United States these devices and thus directly
infringes one or more claims of the ’973 patent, including at least claims 1 and 21.
65.
Huawei indirectly infringes the ‘973 patent by inducing infringement by
others of at least claim 13, such as resellers, in accordance with 35 U.S.C. § 271(b) in this
District and elsewhere in the United States. Direct infringement is the result of activities
performed by the manufacturers, resellers, and end-users of the Huawei Mobile
Communication Devices. Huawei received actual notice of the ’973 Patent at least by
21
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March 12, 2012 in view of a communication from Rockstar, and/or its predecessors-ininterest, to Huawei.
66.
Huawei’s affirmative acts of selling Huawei Mobile Communication
Devices, causing the Huawei Mobile Communication Devices to be manufactured, and
providing instruction manuals for Huawei Mobile Communication Devices induced
Huawei’s manufacturers and resellers to make or use the Huawei Mobile Communication
Devices in their normal and customary way to infringe the ‘973 patent. Through its
manufacture and sales of Huawei Mobile Communication Devices, Huawei specifically
intended its resellers and manufacturers to infringe the ‘973 patent; further, Huawei was
aware that these normal and customary activities would infringe the ‘973 patent. Huawei
performed the acts that constitute induced infringement, and would induce actual
infringement, with knowledge of the ‘973 patent and with the knowledge or willful
blindness that the induced acts would constitute infringement.
67.
Accordingly, a reasonable inference is that Huawei specifically intends for
others, such as resellers and end-use customers, to directly infringe one or more claims of
the ‘973 patent in the United States because Huawei has knowledge of the ‘973 patent
and actually induces others, such as resellers and end-use customers, to directly infringe,
by using, selling, exporting, supplying and/or distributing within the United States,
Huawei Communication Devices for resale to others, such as resellers and end-use
customers. Huawei knew or should have known that such actions would induce actual
infringement.
68.
The use of at least Huawei Mobile Communication Devices, including
Huawei M865 MUVE, with an operating system configured and installed by Huawei to
22
McKool 940051v2
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support an integrated notification message center functionality as intended by Huawei
infringes at least method claim 8 of the ‘973 Patent. Huawei uses these devices within
the United States and thus directly infringes one or more claims of the ’973 patent,
including at least claim 8.
69.
Huawei indirectly infringes the ’973 patent by inducing infringement by
others, such as resellers and end-use customers, in accordance with 35 U.S.C. § 271(b) in
this District and elsewhere in the United States. Direct infringement is the result of
activities performed by the manufacturers, resellers, and end-users of Huawei Mobile
Communication Devices, including Huawei M865 MUVE.
Huawei received actual
notice of the ’973 Patent at least by March 12, 2012 in view of a communication from
Rockstar and/or its predecessors-in-interest to Huawei..
70.
Huawei provides at least Huawei Mobile Communication Devices,
including Huawei M865 MUVE, with an operating system configured and installed by
Huawei to support integrated notification message center functionality to others, such as
resellers and end-use customers, in the United States who, in turn, use Huawei Mobile
Communication Devices to infringe at least method claim 8 of the ‘973 Patent. Through
its manufacture and sales of Huawei Mobile Communication Devices, Huawei
specifically intended its resellers and manufacturers to infringe the ’973 patent.
71.
Huawei specifically intends for others, such as resellers and end-use
customers, to directly infringe one or more claims of the ‘973 Patent in the United States.
For example, Huawei provides instructions to resellers and end-use customers regarding
the use and operation of Huawei Mobile Communication Devices, including Huawei
M865 MUVE, in an infringing way. Such instructions include at least Such instructions
23
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include, for example, at least the M865 MUVE user guide (available at
http://www.huaweidevice.com/worldwide/downloadCenter.do?method=toDownloadFile
&flay=document&softid=NDI4OTk=) (accessed October 30, 2013). When resellers and
end-use customers follow such instructions, they directly infringe the ‘973 Patent.
Huawei knows that by providing such instructions, resellers and end-use customers
follow those instructions, and directly infringe the ‘973 Patent. Huawei thus knows that
its actions induce the infringement.
72.
Huawei performed the acts that constitute induced infringement, and
would induce actual infringement, with the knowledge of the ’973 patent and with the
knowledge or willful blindness that the induced acts would constitute infringement.
73.
Huawei indirectly infringes the ’973 patent, by contributing to
infringement by others, such as resellers and end-use customers, in accordance with 35
U.S.C. § 271(b) in this District and elsewhere in the United States. Direct infringement is
the result of activities performed by the manufacturers, resellers, and end-users of
Huawei Mobile Communication Devices, including Huawei M865 MUVE.
Huawei
received actual notice of the ’973 Patent at least by March 12, 2012 in view of a
communication from Rockstar and/or its predecessors-in-interest to Huawei.
74.
Huawei Mobile Communication Devices, including Huawei M865
MUVE, include functionality that, inter alia, displays an integrated notification message
center contained in a single list. The notification message center is designed to provide a
user with a single list of notifications regardless of the types of messages (e.g., email, text,
etc) on the user’s Mobile Communication Device.
24
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On information and belief, this
Case 2:13-cv-00896-JRG Document 1 Filed 10/31/13 Page 25 of 47 PageID #: 25
functionality cannot operate in an acceptable manner absent the integrated notification
message center, as it is included in every Huawei Mobile Communication Device.
75.
A reasonable inference to be drawn from the facts set forth is that the
integrated message center in Huawei Mobile Communication Devices, including Huawei
M865 MUVE, is especially made or especially adapted to operate on a Huawei Mobile
Communication Device as an integrated notification message center that provides a user
with notifications concerning different types of messages on the user’s Mobile
Communication Device.
76.
A reasonable inference to be drawn from the facts set forth is that the
integrated notification message center in the Mobile Communication Device, including
Huawei M865 MUVE, is not a staple article or commodity of commerce and that the use
of the integrated notification message center in Huawei Mobile Communication Devices
is required for operation of Huawei Mobile Communication Devices. Any other use
would be unusual, far-fetched, illusory, impractical, occasional, aberrant, or
experimental.
77.
Huawei Mobile Communication Devices, including Huawei M865
MUVE, with the integrated notification message center are each a material part of the
invention of the ’973 patent and are especially made for the infringing manufacture, sale,
and use of Huawei Mobile Communication Devices. Huawei Mobile Communication
Devices, including the integrated notification message center, are especially made or
adapted as an integrated notification message center that infringes the ’973 patent.
Because the sales and manufacture of Huawei Mobile Communication Devices with an
25
McKool 940051v2
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integrated notification message center infringes the ’973 patent, Huawei’s sales of its
infringing products have no substantial non-infringing uses.
78.
Accordingly, a reasonable inference is that Huawei offers to sell, or sells
within the United States a component of a patented machine, manufacture, combination,
or composition, or a material or apparatus for use in practicing a patented process,
constituting a material part of the invention, knowing the same to be especially made or
especially adapted for use in an infringement of such patent, and not a staple article or
commodity of commerce suitable for substantial non-infringing use. Huawei provides to
others Huawei Mobile Communication Devices, including Huawei M865 MUVE, with
distinct and separate components, including software components, which have no
substantial non-infringing use.
79.
At least Huawei Mobile Communication Devices, including Huawei
Ascend II, with an operating system configured and installed by Huawei to support
Message and Notification functionality infringe at least claim 1 of the ‘131 Patent.
Huawei makes, uses, sells, offers for sale, imports, exports, supplies and/or distributes
within the United States these devices and thus directly infringes at least claim 1 of the
‘131 Patent.
80.
Huawei indirectly infringes the ‘131 patent by inducing infringement by
others of at least claim 13, such as resellers, in accordance with 35 U.S.C. § 271(b) in this
District and elsewhere in the United States. Direct infringement is the result of activities
performed by the manufacturers, resellers, and end-users of the Huawei Mobile
Communication Devices. Huawei received actual notice of the ‘131 Patent at least by
26
McKool 940051v2
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February 5, 2013 in view of a communication from Rockstar, and/or its predecessors-ininterest, to Huawei.
81.
Huawei’s affirmative acts of selling Huawei Mobile Communication
Devices, causing the Huawei Mobile Communication Devices to be manufactured, and
providing instruction manuals for Huawei Mobile Communication Devices induced
Huawei’s manufacturers and resellers to make or use the Huawei Mobile Communication
Devices in their normal and customary way to infringe the ‘131 patent. Through its
manufacture and sales of Huawei Mobile Communication Devices, Huawei specifically
intended its resellers and manufacturers to infringe the ‘131 patent; further, Huawei was
aware that these normal and customary activities would infringe the ‘131 patent. Huawei
performed the acts that constitute induced infringement, and would induce actual
infringement, with knowledge of the ‘131 patent and with the knowledge or willful
blindness that the induced acts would constitute infringement.
82.
Accordingly, a reasonable inference is that Huawei specifically intends for
others, such as resellers and end-use customers, to directly infringe one or more claims of
the ‘937 patent in the United States because Huawei has knowledge of the ‘131 patent
and actually induces others, such as resellers and end-use customers, to directly infringe,
by using, selling, exporting, supplying and/or distributing within the United States,
Huawei Communication Devices for resale to others, such as resellers and end-use
customers. Huawei knew or should have known that such actions would induce actual
infringement.
83.
The use of at least Huawei Mobile Communication Devices, including
Huawei Ascend II, with an operating system configured and installed by Huawei to
27
McKool 940051v2
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support Message and Notification functionality as intended by Huawei infringes at least
method claim 5 of the ‘131 Patent.
Huawei uses these products and thus directly
infringes at least method claim 5 of the ‘131 Patent.
84.
In addition, Huawei provides at least Huawei Mobile Communication
Devices, including Huawei Ascend II, with an operating system configured and installed
by Huawei to support Message functionality to others, such as resellers and end-use
customers, in the United States who, in turn, use these products to infringe at least
method claim 5 of the ‘131 Patent.
85.
Huawei indirectly infringes the ’131 patent by inducing infringement by
others, such as resellers and end-use customers, in accordance with 35 U.S.C. § 271(b) in
this District and elsewhere in the United States. Direct infringement is the result of
activities performed by the manufacturers, resellers, and end-users of Huawei Mobile
Communication Devices, including Huawei Ascend II, in their intended use, including a
customer’s use of the Message and Notifications functionality. Huawei received actual
notice of the ’131 Patent at least by February 5, 2013 in view of a communication from
Rockstar and/or its predecessors-in-interest to Huawei.
86.
Huawei’s affirmative acts of selling Huawei Mobile Communication
Devices, including Huawei Ascend II, and providing instruction manuals induced the
end-users of Huawei Mobile Communication Devices, including Huawei Ascend II, to
use Huawei Mobile Communication Devices in their normal and customary way to
infringe the ’131 patent at least through using Message and Notifications functionality.
Huawei also provides instructions, including at least Ascend II user guide (available at
http://www.huaweideviceusa.com/downloads/1383178216.44726700_b6405ae24c/M865
28
McKool 940051v2
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%20User_Guide%20English.pdf) (accessed October 30, 2013), for using the Messaging
and Notifications functionality. Through its sales of Mobile Communication Devices
with Messaging and Notifications functionality, Huawei specifically intended the endusers of Huawei Mobile Communication Devices to infringe the ’131 patent; further,
Huawei was aware that the normal and customary use of the Message and Notifications
functionality would infringe the ’131 patent. Huawei also enticed its end-users to use the
Messaging and Notifications functionality by providing instruction manuals and also
providing Messaging and Notifications functionality. Huawei performed the acts that
constituted induced infringement, and would induce actual infringement, with the
knowledge of the ’131 patent and with the knowledge or willful blindness that the
induced acts would constitute infringement.
87.
Accordingly, a reasonable inference is that Huawei actively induces
infringement of the ‘131 Patent by others, such as resellers and end-use customers.
Huawei specifically intends for others, such as resellers and end-use customers, to
directly infringe one or more claims of the ‘131 Patent in the United States because
Huawei had knowledge of the ‘131 Patent, and Huawei actually induces infringement by
providing instructions to resellers and end-use customers regarding the use and operation
of Huawei Mobile Communication Devices, including Huawei Ascend II, in an
infringing way. Such instructions include at least the Ascend II user guide (available at
http://www.huaweideviceusa.com/downloads/1383178216.44726700_b6405ae24c/M865
%20User_Guide%20English.pdf) (accessed October 30, 2013). When resellers and enduse customers follow such instructions, they directly infringe the ‘131 Patent. Huawei
knows that by providing such instructions, resellers and end-use customers follow those
29
McKool 940051v2
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instructions, and directly infringe the ‘131 Patent. Huawei thus knows that its actions
induce the infringement.
88.
Huawei indirectly infringes the ‘131 Patent by contributing to
infringement by others, such as resellers and end-use customers, in accordance with 35
U.S.C. § 271(c) in this District and elsewhere in the United States. Direct infringement is
the result of activities performed by the manufacturers, resellers, and end-users of
Huawei Mobile Communication Devices, including Huawei Ascend II, in their intended
use, including a customer’s use of the Messaging and Notification functionality. Huawei
received actual notice of the ’131 Patent at least by February 5, 2013 in view of a
communication from Rockstar and/or its predecessors-in-interest to Huawei.
89.
Huawei’s Message and Notification functionality receives and displays
message of different types, such as a phone call, voice mail, text message, or email. The
Message and Notification Services functionality is designed to notify the user of an
incoming communication and to select the format of the message received and cannot
function in a manner that does not utilize the messaging functionality available to Huawei
Mobile Communication Devices, including Huawei Ascend II. Upon information and
belief, the Message and Notifications functionality is designed to entice a user to receive
notifications of an incoming communication.
90.
A reasonable inference to be drawn from the facts set forth is that the
Message and Notifications functionality especially made or especially adapted to operate
on Huawei Mobile Communication Devices, including Huawei Ascend II, for notifying a
user of an incoming communication.
30
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91.
A reasonable inference to be drawn from the facts set forth is that the
Message and Notifications functionality is not a staple article or commodity of commerce
and that the use of the Messaging and Notifications functionality of the Huawei Mobile
Communication Devices, including Huawei Ascend II, is for notifying a user of an
incoming communication.
Any other use would be unusual, far-fetched, illusory,
impractical, occasional, aberrant, or experimental.
92.
Huawei Mobile Communication Devices, including Huawei Ascend II,
with Messaging and Notifications functionality are each a material part of the ’131 patent
and especially made for the infringing use of the Messaging and Notification
functionality to receive and display messages. Huawei Mobile Communication Devices
including the Messaging and Notification functionality, are especially made or adapted to
notify a user of an incoming communication that perform or facilitate performance of the
steps that infringe the ’131 patent.
Furthermore, Huawei provides user manuals
describing the uses of its Mobile Communication Devices that infringe the ’131 patent.
Because the functionality provided by Huawei’s Messaging and Notification to notify a
user of an incoming communication infringes the ’131 patent, Huawei’s sales of its
infringing products have no substantial non-infringing uses.
93.
Accordingly, a reasonable inference is that Huawei offers to sell, or sells
within the United States a component of a patented machine, manufacture, combination,
or composition, or a material or apparatus for use in practicing a patented process,
constituting a material part of the invention, knowing the same to be especially made or
especially adapted for use in an infringement of such patent, and not a staple article or
commodity of commerce suitable for substantial non-infringing use. Huawei provides to
31
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others, Mobile Communication Devices, including Huawei Ascend II, with an operating
system configured and installed by Huawei to support Message and Notification
functionality. Huawei installs and configures on these products distinct and separate
components, including software components, which are used only to perform the
infringing method claims.
94.
At least Huawei Mobile Communication Devices, including Huawei
Premia 4G M931, with an operating system configured and installed by Huawei to
support VPN management functionality, including the Huawei Premia 4G M931, infringe
at least claims 1 and 8 of the ‘591 Patent. Huawei makes, uses, sells, offers for sale,
imports, exports, supplies and/or distributes within the United States these devices and
thus directly infringes at least claims 1 and 8 of the ‘591 Patent.
95.
The use of at least Huawei Mobile Communication Devices, including
Huawei Premia 4G M931, with an operating system configured and installed by Huawei
to support VPN management functionality as specified and intended by Huawei infringes
at least claims 1 and 8 of the ‘591 Patent. Huawei uses these products and thus directly
infringes at least claims 1 and 8 of the ‘591 Patent.
96.
Huawei indirectly infringes the ‘591 patent by inducing infringement by
others of at least claim 13, such as resellers, in accordance with 35 U.S.C. § 271(b) in this
District and elsewhere in the United States. Direct infringement is the result of activities
performed by the manufacturers, resellers, and end-users of the Huawei Mobile
Communication Devices. Huawei received actual notice of the 591 Patent at least by
April 18, 2013 in view of a communication from Rockstar, and/or its predecessors-ininterest, to Huawei.
32
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97.
Huawei’s affirmative acts of selling Huawei Mobile Communication
Devices, causing the Huawei Mobile Communication Devices to be manufactured, and
providing instruction manuals for Huawei Mobile Communication Devices induced
Huawei’s manufacturers and resellers to make or use the Huawei Mobile Communication
Devices in their normal and customary way to infringe the ‘591 patent. Through its
manufacture and sales of Huawei Mobile Communication Devices, Huawei specifically
intended its resellers and manufacturers to infringe the ‘591 patent; further, Huawei was
aware that these normal and customary activities would infringe the ‘591 patent. Huawei
performed the acts that constitute induced infringement, and would induce actual
infringement, with knowledge of the ‘591 patent and with the knowledge or willful
blindness that the induced acts would constitute infringement.
98.
Accordingly, a reasonable inference is that Huawei specifically intends for
others, such as resellers and end-use customers, to directly infringe one or more claims of
the ‘591 patent in the United States because Huawei has knowledge of the ‘591 patent
and actually induces others, such as resellers and end-use customers, to directly infringe,
by using, selling, exporting, supplying and/or distributing within the United States,
Huawei Communication Devices for resale to others, such as resellers and end-use
customers. Huawei knew or should have known that such actions would induce actual
infringement.
99.
In addition, Huawei provides at least its Mobile Communication Devices,
including Huawei Premia 4G M931, with an operating system configured and installed
by Huawei to support VPN management functionality to others, such as resellers and
33
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end-use customers, in the United States who, in turn, use these products to infringe at
least claims 1 and 8 of the ‘591 Patent.
100.
Huawei indirectly infringes the ’591 patent by inducing infringement by
others, such as resellers and end-use customers, in accordance with 35 U.S.C. § 271(b) in
this District and elsewhere in the United States. Direct infringement is the result of
activities performed by the manufacturers, resellers, and end-users of Huawei Mobile
Communication Devices, including Huawei Premia 4G M931, in their intended use,
including a customer’s use of the VPN management functionality. Huawei received
actual notice of the ’591 Patent at least by April 18, 2013 in view of a communication
from Rockstar and/or its predecessors-in-interest to Huawei.
101.
Huawei’s affirmative acts of selling its Mobile Communication Devices,
including Huawei Premia 4G M931, and providing instruction manuals induced the endusers of Huawei Mobile Communication Devices, including Huawei Premia 4G M931, to
use Huawei Mobile Communication Devices in their normal and customary way to
infringe the ’591 patent at least through using VPN management functionality. Huawei
also provides instructions, including at least the Premia User Guide (available at
http://www.huaweideviceusa.com/downloads/1383178470.65582700_d6b1a61435/Premi
a%20UG%20En%20Premia.pdf) (accessed October 30, 2013), for using the VPN
management functionality. Through its sales of Huawei Mobile Communication Devices
with VPN management functionality, Huawei specifically intended the end-users of
Huawei Mobile Communication Devices to infringe the ’591 patent; further, Huawei was
aware that the normal and customary use of VPN management functionality would
infringe the ’591 patent. Huawei also enticed its end-users to use the VPN management
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functionality by providing instruction manuals and also providing VPN management
functionality. Huawei performed the acts that constituted induced infringement, and
would induce actual infringement, with the knowledge of the ’591 patent and with the
knowledge or willful blindness that the induced acts would constitute infringement.
102.
Accordingly, it is a reasonable inference that Huawei actively induces
infringement of the ‘591 Patent by others, such as resellers and end-use customers.
Huawei specifically intends for others, such as resellers and end-use customers, to
directly infringe one or more claims of the ‘591 Patent in the United States because
Huawei had knowledge of the ‘591 Patent, and Huawei actually induces infringement by
providing instructions to resellers and end-use customers regarding the use and operation
of Huawei’s products, including Huawei Premia 4G M931, in an infringing way. Such
instructions
include
at
least
the
Premia
User
Guide
(available
at
http://www.huaweideviceusa.com/downloads/1383178470.65582700_d6b1a61435/Premi
a%20UG%20En%20Premia.pdf) (accessed October 30, 2013). When resellers and enduse customers follow such instructions, they directly infringe the ‘591 Patent. Huawei
knows that by providing such instructions, resellers and end-use customers follow those
instructions, and directly infringe the ‘591 Patent. Huawei thus knows that its actions
induce the infringement.
103.
Huawei indirectly infringes the ‘591 Patent by contributing to
infringement by others, such as resellers and end-use customers, in accordance with 35
U.S.C. § 271(c) in this District and elsewhere in the United States. Direct infringement is
the result of activities performed by the manufacturers, resellers, and end-users of
Huawei Mobile Communication Devices, including Huawei Premia 4G M931, in their
35
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intended use, including a customer’s use of the VPN management functionality. Huawei
received actual notice of the ’591 Patent at least by April 18, 2013 in view of a
communication from Rockstar and/or its predecessors-in-interest to Huawei.
104.
Huawei’s VPN management functionality facilitates management of
VPNs. The VPN management functionality is designed for management of VPNs and
cannot function in a manner that does not utilize the VPN management functionality
available to Huawei Mobile Communication Devices, including Huawei Premia 4G
M931. The VPN management functionality is designed upon information and belief to
entice a user to manage VPNs.
105.
A reasonable inference to be drawn from the facts set forth is that the VPN
functionality is especially made or especially adapted to operate on Huawei Mobile
Communication Devices, including Huawei Premia 4G M931, for providing VPN
management functionality.
106.
A reasonable inference to be drawn from the facts set forth is that the VPN
management functionality is not a staple article or commodity of commerce and that the
use of the VPN management functionality of Huawei Mobile Communication Devices,
including Huawei Premia 4G M931, is for managing VPNs. Any other use would be
unusual, far-fetched, illusory, impractical, occasional, aberrant, or experimental.
107.
Huawei Mobile Communication Devices, including Huawei Premia 4G
M931, with VPN management functionality are each a material part of the invention of
the ’591 patent and especially made for the infringing use of the VPN functionality to
receive call trace information. Huawei Mobile Communication Devices including the
VPN management functionality, are especially made or adapted to provide VPN
36
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management functionality that perform or facilitate performance of the steps that infringe
the ’591 patent. Furthermore, Huawei provides user manuals describing the uses of its
Mobile Communication Devices that infringe the ’591 patent. Because the functionality
provided by Huawei’s VPN management functionality infringes the ’591 patent,
Huawei’s sales of its infringing Mobile Communication Devices have no substantial noninfringing uses.
108.
Accordingly, a reasonable inference is that Huawei offers to sell, or sells
within the United States a component of a patented machine, manufacture, combination,
or composition, or a material or apparatus for use in practicing a patented process,
constituting a material part of the invention, knowing the same to be especially made or
especially adapted for use in an infringement of such patent, and not a staple article or
commodity of commerce suitable for substantial non-infringing use. Huawei provides to
others, Mobile Communication Devices, including Huawei Premia 4G M931, with an
operating system configured and installed by Huawei to support VPN management
functionality. Huawei installs and configures on these products distinct and separate
components, including software components, which are used only to infringe the ‘591
Patent.
109.
The use of at least Huawei Mobile Communication Devices, including the
Huawei M865 MUVE, Huawei MediaPad, and Huawei IDEOS S7 Slim, with an
operating system configured and installed by Huawei to support Location Services
functionality, as intended by Huawei infringes at least method claim 17 of the ‘572
Patent. Huawei uses these Mobile Communication Devices and thus directly infringes at
least method claim 17 of the ‘572 Patent.
37
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110.
In addition, Huawei provides at least its Mobile Communication Devices,
including Huawei M865 MUVE, Huawei MediaPad, and Huawei IDEOS S7 Slim, with
an operating system configured and installed by Huawei to support Location Services
functionality to others, such as resellers and end-use customers, in the United States who,
in turn, use these products to infringe at least method claim 17 of the ‘572 Patent.
111.
Huawei indirectly infringes the ’572 patent by inducing infringement by
others, such as resellers and end-use customers, in accordance with 35 U.S.C. § 271(b) in
this District and elsewhere in the United States. Direct infringement is the result of
activities performed by the manufacturers, resellers, and end-users of Huawei Mobile
Communication Devices, including Huawei M865 MUVE, Huawei MediaPad, and
Huawei IDEOS S7 Slim, in their intended use, including a customer’s use of the Location
Services functionality. Huawei received actual notice of the ’572 Patent at least by
August, 10, 2012 in view of a communication from Rockstar and/or its predecessors-ininterest to Huawei.
112.
Huawei’s affirmative acts of selling its Mobile Communication Devices,
including Huawei M865 MUVE, Huawei MediaPad, and Huawei IDEOS S7 Slim, and
providing instruction manuals induced the end-users of Huawei Mobile Communication
Devices to use Huawei Mobile Communication Devices in their normal and customary
way to infringe the ’572 patent at least through using Location Services functionality.
Huawei also provides instructions, including at least the M865 MUVE user guide
(available
at
http://www.huaweidevice.com/worldwide/downloadCenter.do?method=toDownloadFile
&flay=document&softid=NDI4OTk=) (accessed October 30, 2013), the MediaPad User
38
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Guide
(available
at
http://www.huaweidevice.com/worldwide/downloadCenter.do?method=toDownloadFile
&flay=document&softid=NDY2NzQ=) (accessed October 30, 2013), and the IDEOS S7
Slim
User
Guide
(available
at
http://www.huaweidevice.com/worldwide/downloadCenter.do?method=toDownloadFile
&flay=document&softid=NDA0NjY=) (accessed October 30, 2013)
for using the
Location Services functionality. Through its sales of Huawei Mobile Communication
Devices with Location Services functionality, Huawei specifically intended the end-users
of Huawei Mobile Communication Devices to infringe the ’572 patent; further, Huawei
was aware that the normal and customary use of Location Services would infringe the
’572 patent. Huawei also enticed its end-users to use the Location Services by providing
instruction manuals and also providing Location Services functionality.
Huawei
performed the acts that constituted induced infringement, and would induce actual
infringement, with the knowledge of the ’572 patent and with the knowledge or willful
blindness that the induced acts would constitute infringement.
113.
Accordingly, a reasonable inference is that Huawei actively induces
infringement of the ‘572 Patent by others, such as resellers and end-use customers.
Huawei specifically intends for others, such as resellers and end-use customers, to
directly infringe one or more claims of the ‘572 Patent in the United States because
Huawei had knowledge of the ‘572 Patent, and Huawei actually induces infringement by
providing instructions to resellers and end-use customers regarding the use and operation
of Huawei’s products, including Huawei M865 MUVE, Huawei MediaPad, and Huawei
IDEOS S7 Slim, in an infringing way. Such instructions include at least “Huawei Score
39
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User
Manual”
(available
at
http://www.Huaweiusa.com/media/wysiwyg/CricketScoreTM/Cricket_Score_TM_User_
Manual_English_-_PDF_-_968KB_.pdf) (accessed October 30, 2013) and “Huawei
Optik User Guide” (available at http://www.Huaweiusa.com/media/wysiwyg//HuaweiOptik/Huawei_Optik_User_Manual_English_-_PDF_-_2.98MB_.pdf) (accessed October
30,
2013)
“Huawei
Score
User
Manual”
(available
at
http://www.Huaweiusa.com/media/wysiwyg/CricketScoreTM/Cricket_Score_TM_User_
Manual_English_-_PDF_-_968KB_.pdf) (accessed October 30, 2013) and “Huawei
Optik User Guide” (available at http://www.Huaweiusa.com/media/wysiwyg//HuaweiOptik/Huawei_Optik_User_Manual_English_-_PDF_-_2.98MB_.pdf) (accessed October
30, 2013). When resellers and end-use customers follow such instructions, they directly
infringe the ‘572 Patent. Huawei knows that by providing such instructions, resellers and
end-use customers follow those instructions, and directly infringe the ‘572 Patent.
Huawei thus knows that its actions induce the infringement.
114.
Huawei indirectly infringes the ‘572 Patent by contributing to
infringement by others, such as resellers and end-use customers, in accordance with 35
U.S.C. § 271(c) in this District and elsewhere in the United States. Direct infringement is
the result of activities performed by the manufacturers, resellers, and end-users of
Huawei Mobile Communication Devices, including Huawei M865 MUVE, Huawei
MediaPad, and Huawei IDEOS S7 Slim, in their intended use, including a customer’s use
of the Locations Services functionality. Huawei received actual notice of the ’572 Patent
at least by August 10, 2012 in view of a communication from Rockstar and/or its
predecessors-in-interest to Huawei.
40
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115.
Huawei’s Location Services functionality provides call trace information,
i.e., a geographic location of Huawei Mobile Communication Devices, including Huawei
M865 MUVE, Huawei MediaPad, and Huawei IDEOS S7 Slim. The Location Services
functionality is designed to notify the user of Huawei Mobile Communication Devices of
call trace information, i.e., a geographic location of the Mobile Communication Devices,
and cannot function in a manner that does not utilize the Location Services functionality
available to the Mobile Communication Devices. Upon information and belief, the
Location Services functionality is designed to entice a user to access call trace
information.
116.
A reasonable inference to be drawn from the facts set forth is that the
Location Services functionality is especially made or especially adapted to operate on
Huawei Mobile Communication Devices, including Huawei M865 MUVE, Huawei
MediaPad, and Huawei IDEOS S7 Slim, for obtaining call trace information, i.e., a
geographic location of the Mobile Communication Devices.
117.
A reasonable inference to be drawn from the facts set forth is that the
Location Services functionality is not a staple article or commodity of commerce and that
the use of the Location Services functionality of Huawei Mobile Communication
Devices, including Huawei M865 MUVE, Huawei MediaPad, and Huawei IDEOS S7
Slim, is for providing call trace information. Any other use would be unusual, farfetched, illusory, impractical, occasional, aberrant, or experimental.
118.
Huawei Mobile Communication Devices, including Huawei M865
MUVE, Huawei MediaPad, and Huawei IDEOS S7 Slim, with Location Services
functionality are each a material part of the ’572 patent and especially made for the
41
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infringing use of the Location Services functionality to receive call trace information, i.e.,
a geographic location of the Mobile Communication Devices.
The Mobile
Communication Devices including the Location Services functionality are especially
made or adapted to provide call trace information that perform or facilitate performance
of the steps that infringe the ’572 patent. Furthermore, Huawei provides user manuals
describing the uses of its products that infringe the ’572 patent. Because the functionality
provided by Huawei’s Location Services to obtain call trace information, i.e., a
geographic location of the Mobile Communication Devices, infringes the ’572 patent,
Huawei’s sales of its infringing products have no substantial non-infringing uses.
119.
Accordingly, a reasonable inference is that Huawei offers to sell, or sells
within the United States a component of a patented machine, manufacture, combination,
or composition, or a material or apparatus for use in practicing a patented process,
constituting a material part of the invention, knowing the same to be especially made or
especially adapted for use in an infringement of such patent, and not a staple article or
commodity of commerce suitable for substantial non-infringing use. Huawei provides to
others, Mobile Communication Devices, including Huawei M865 MUVE, Huawei
MediaPad, and Huawei IDEOS S7 Slim, with an operating system configured and
installed by Huawei to support Location Services functionality. Huawei installs and
configures on these products distinct and separate components, including software
components, which are used only to perform the infringing method claims.
120.
Huawei’s acts of infringement have caused damage to Rockstar and
MobileStar. Rockstar and MobileStar are entitled to recover from Huawei the damages
sustained by Rockstar and MobileStar as a result of Huawei’s wrongful acts in an amount
42
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subject to proof at trial. In addition, the infringing acts and practices of Huawei have
caused, are causing, and, unless such acts and practices are enjoined by the Court, will
continue to cause immediate and irreparable harm to Rockstar and MobileStar for which
there is no adequate remedy at law, and for which Rockstar and MobileStar are entitled to
injunctive relief under 35 U.S.C. § 283.
121.
Huawei received actual notice of its infringement of the ‘551, ‘937, ‘298,
‘973, ‘131, ‘591, and ‘572 Patents through at least letters sent by Rockstar and/or its
predecessors-in-interest, Nortel Networks Ltd. and/or Nortel Networks, Inc., to Huawei,
and through meetings between employees of Rockstar and/or its predecessors-in-interest,
Nortel Networks Ltd., or Nortel Networks Inc. and Huawei. Huawei also has knowledge
of its infringement of the Patents-in-Suit by way of this Complaint.
122.
Huawei has willfully infringed and/or does willfully infringe the ‘551,
‘937, ‘298, ‘973, ‘131, ‘591, and ‘572 Patents.
DEMAND FOR JURY TRIAL
Rockstar and MobileStar hereby demand a jury trial for all issues so triable.
PRAYER FOR RELIEF
WHEREFORE, Rockstar and MobileStar pray for the following relief:
1.
A judgment that Huawei has directly infringed the ‘551 Patent,
contributorily infringed the ‘551 Patent, and/or induced the infringement of the ‘551
Patent.
2.
A judgment that Huawei has directly infringed the ‘937 Patent,
contributorily infringed the ‘937 Patent, and/or induced the infringement of the ‘937
Patent.
43
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3.
A judgment that Huawei has directly infringed the ‘298 Patent,
contributorily infringed the ‘298 Patent, and/or induced the infringement of the ‘298
Patent.
4.
A judgment that Huawei has directly infringed the ‘973 Patent,
contributorily infringed the ‘973 Patent, and/or induced the infringement of the ‘973
Patent.
5.
A judgment that Huawei has directly infringed the ‘131 Patent,
contributorily infringed the ‘131 Patent, and/or induced the infringement of the ‘131
Patent.
6.
A judgment that Huawei has directly infringed the ‘591 Patent,
contributorily infringed the ‘591 Patent, and/or induced the infringement of the ‘591
Patent.
7.
A judgment that Huawei has directly infringed the ‘572 Patent,
contributorily infringed the ‘572 Patent, and/or induced the infringement of the ‘572
Patent.
8.
A permanent injunction preventing Huawei and its respective officers,
directors, agents, servants, employees, attorneys, licensees, successors, and assigns, and
those in active concert or participation with any of them, from directly infringing,
contributorily infringing, and/or inducing the infringement of the ’551 Patent;
9.
A permanent injunction preventing Huawei and its respective officers,
directors, agents, servants, employees, attorneys, licensees, successors, and assigns, and
those in active concert or participation with any of them, from directly infringing,
contributorily infringing, and/or inducing the infringement of the ’937 patent;
44
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10.
A permanent injunction preventing Huawei and its respective officers,
directors, agents, servants, employees, attorneys, licensees, successors, and assigns, and
those in active concert or participation with any of them, from directly infringing,
contributorily infringing, and/or inducing the infringement of the ’298 patent;
11.
A permanent injunction preventing Huawei and its respective officers,
directors, agents, servants, employees, attorneys, licensees, successors, and assigns, and
those in active concert or participation with any of them, from directly infringing,
contributorily infringing, and/or inducing the infringement of the ’973 patent;
12.
A permanent injunction preventing Huawei and its respective officers,
directors, agents, servants, employees, attorneys, licensees, successors, and assigns, and
those in active concert or participation with any of them, from directly infringing,
contributorily infringing, and/or inducing the infringement of the ’131 patent;
13.
A permanent injunction preventing Huawei and its respective officers,
directors, agents, servants, employees, attorneys, licensees, successors, and assigns, and
those in active concert or participation with any of them, from directly infringing,
contributorily infringing, and/or inducing the infringement of the ’591 patent;
14.
A permanent injunction preventing Huawei and its respective officers,
directors, agents, servants, employees, attorneys, licensees, successors, and assigns, and
those in active concert or participation with any of them, from directly infringing,
contributorily infringing, and/or inducing the infringement of the ’572 patent;
15.
A judgment that Huawei’s infringement of the ’551, ‘937, ‘298, ‘973,
‘131, ‘591, and ‘572 Patents has been willful;
45
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16.
A ruling that this case be found to be exceptional under 35 U.S.C. § 285,
and a judgment awarding Rockstar and MobileStar to its attorneys’ fees incurred in
prosecuting this action;
17.
A judgment and order requiring Huawei to pay Rockstar and MobileStar
damages under 35 U.S.C. § 284, including supplemental damages for any continuing
post-verdict infringement up until entry of the final judgment, with an accounting, as
needed, and treble damages for willful infringement as provided by 35 U.S.C. § 284;
18.
A judgment and order requiring Huawei to pay Rockstar and MobileStar
the costs of this action (including all disbursements);
19.
A judgment and order requiring Huawei to pay Rockstar and MobileStar
pre-judgment and post-judgment interest on the damages awarded;
20.
A judgment and order requiring that in the event a permanent injunction
preventing future acts of infringement is not granted, that Rockstar and MobileStar be
awarded a compulsory ongoing licensing fee; and
21.
Such other and further relief as the Court may deem just and proper.
46
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DATED: October 31, 2013.
Respectfully submitted,
MCKOOL SMITH, P.C.
/s/ Theodore Stevenson, III
Mike McKool, Jr.
Texas Bar No. 13732100
mmckool@mckoolsmith.com
Douglas A. Cawley
Texas Bar No. 0403550
dcawley@mckoolsmith.com
Theodore Stevenson, III
Lead Attorney
Texas State Bar No. 19196650
tstevenson@mckoolsmith.com
David Sochia
Texas State Bar No. 00797470
dsochia@mckoolsmith.com
MCKOOL SMITH P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: (214) 978-4000
Facsimile: (214) 978-4044
ATTORNEYS FOR PLAINTIFFS
ROCKSTAR CONSORTIUM US,
LP AND MOBILESTAR
TECHNOLOGIES LLC
47
McKool 940051v2
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