Ameranth, Inc. v. Apple, Inc.

Filing 1

COMPLAINT with Jury Demand against Apple, Inc. ( Filing fee $ 350 receipt number 0974-5183055.), filed by Ameranth, Inc. (Attachments: # 1 Civil Cover Sheet, # 2 Table of contents for exhibits, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D)The new case number is 3:12-cv-2350-AJB-BGS. Judge Anthony J. Battaglia and Magistrate Judge Bernard G. Skomal are assigned to the case. (Caldarelli, William)(cxl) (cap).

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CALDARELLI HEJMANOWSKI & PAGE LLP
William J. Caldarelli (SBN #149573)
12340 El Camino Real, Suite 430
San Diego, CA 92130
Tel: [phone]
Fax: [phone]
[e-mail]
FABIANO LAW FIRM, P.C.
Michael D. Fabiano (SBN #167058)
12526 High Bluff Drive, Suite 300
San Diego, CA 92130
Telephone: [phone]
[e-mail]

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OSBORNE LAW LLC
John W. Osborne (Pro Hac Vice App. Pending)
33 Habitat Lane
Cortlandt Manor, NY 10567
Telephone: [phone]
[e-mail]

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WATTS LAW OFFICES
Ethan M. Watts (SBN #234441)
12340 El Camino Real, Suite 430
San Diego, CA 92130
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Attorneys for Plaintiff Ameranth, Inc.

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No. '12CV2350 AJB BGS

AMERANTH, INC.

COMPLAINT FOR PATENT
INFRINGEMENT

v.
APPLE, INC.,

DEMAND FOR JURY TRIAL

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Defendant.

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COMPLAINT FOR PATENT INFRINGEMENT

Plaintiff Ameranth, Inc., (herein “Ameranth”) for its Complaint against defendant

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Apple, Inc. (herein “Apple” or “Defendant”), avers as follows:

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PARTIES
1.

Plaintiff Ameranth is a Delaware corporation having a principal place of business at

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5820 Oberlin Drive, Suite 202, San Diego, California 92121.

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manufactures and sells, inter alia, hospitality industry, entertainment, restaurant and food

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service

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Communications™, and 21st Century Restaurant™, among others, comprising the

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synchronization and integration of hospitality information and hospitality software applications

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between fixed, wireless and/or internet applications, including but not limited to computer

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servers, web servers, databases, affinity/social networking systems, desktop computers,

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laptops, “smart” phones and other wireless handheld computing devices.

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“Information Management and Synchronous Communications” patent family has been widely

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recognized as visionary, and the original patent in this family, U.S. Patent No. 6,384,850, was

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cited as a prior art reference in two Apple iPhone patents issued to named inventors Bas

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Ording and Steven P. Jobs. Fourteen companies have licensed patents in this Ameranth patent

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family.

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2.

information

technology

solutions

under

the

Ameranth develops,

trademarks

21st

Century

Ameranth’s

Defendant Apple is, on information and belief, a California corporation having a

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principal place of business and headquarters in Cupertino, California. On information and

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belief, Apple makes, uses, sells and/or offers for sale, computer technology products, including

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personal computers, mobile communications devices, portable digital music and video players

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and related hardware, software, components and/or systems within this Judicial District,

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including their integrated Passbook System (“PBS”), which includes the “pass styles” that

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Apple has defined as “boarding pass” and “event ticketing” applications within Passbook, and

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which permits the downloading and storage of, inter alia, airline boarding passes, hotel

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reservations, movie tickets, and event tickets, and is integrated with iPhone 5 and other iPhone

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and iPod Touch devices that are running Apple’s iOS 6 software, and linked to/with Apple’s

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iCloud, the “Apple Notification Service”, and Apple’s Safari browser. Apple has already
-1COMPLAINT FOR PATENT INFRINGEMENT

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announced and/or implemented Passbook partnerships integrating Passbook-enabled systems

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with defendants in other Ameranth patent enforcement actions including Ticketmaster,

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StubHub, Starwood Hotels, Fandango, and others, as well as integrating Apple’s Siri speech-

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recognition and voice control/command application with the system of yet another defendant in

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an Ameranth patent enforcement action, OpenTable. Industry analysts have called Passbook a

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“game changer.” Apple senior vice president Scott Forstall, in demonstrating Passbook with

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stored tickets and passes including movie tickets, airline boarding passes, and concert tickets,

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asserted that “Passbook is the best way to collect all of your passes in one place.”

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JURISDICTION AND VENUE
3.

This is an action for patent infringement arising under the Patent Laws of the United

States, 35 U.S.C. §§ 271, 281-285.

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4.

This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a).

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5.

On information and belief, Apple engages in the offer for sale or license and sale or

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license

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communications devices, portable digital music and video players and related hardware,

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software, components and/or systems, including this Judicial District, including the PBS and

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Siri as defined herein.

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6.

of

computer

technology

products,

including

personal

computers,

mobile

This Court has personal jurisdiction over Apple because Apple commits acts of

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patent infringement in this Judicial District including, inter alia, making, using, offering for

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sale or license, and/or selling or licensing infringing services, products, software, components

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and/or systems in this Judicial District.

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7.
1400(b).

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Venue is proper in this Judicial District under 28 U.S.C. §§ 1391(b) and (c) and

BACKGROUND
8.

Ameranth was established in 1996 to develop and provide its 21 st Century

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Communications™ innovative information technology solutions for the hospitality industry

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(inclusive of, e.g., restaurants, hotels, casinos, nightclubs, cruise ships, and other entertainment

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and sports venues). Ameranth has been widely recognized as a technology leader in the
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provision of wireless and internet-based systems and services to, inter alia, restaurants, hotels,

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casinos, cruise ships and entertainment and sports venues.

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inventions enable, in relevant part, generation and synchronization of menus, including but not

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limited to restaurant menus, event tickets, and other products across fixed, wireless and/or

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internet platforms as well as synchronization of hospitality information and hospitality

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software applications across fixed, wireless and internet platforms, including but not limited to,

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computer servers, web servers, databases, affinity/social networking systems, desktop

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computers, laptops, “smart” phones and other wireless handheld computing devices.

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Ameranth’s award winning

Ameranth began development of the inventions leading to the patent-in-suit and the

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other patents in this patent family in the late Summer of 1998, at a time when the then-

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available wireless and internet hospitality offerings were extremely limited in functionality,

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were not synchronized and did not provide an integrated system-wide solution to the pervasive

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ordering, reservations, affinity program and information management needs of the hospitality

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industry. Ameranth uniquely recognized the actual problems that needed to be resolved in

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order to meet those needs, and thereafter conceived and developed its breakthrough inventions

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and products to provide systemic and comprehensive solutions directed to optimally meeting

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these industry needs. Ameranth has expended considerable effort and resources in inventing,

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developing and marketing its inventions and protecting its rights therein.

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10.

Ameranth’s pioneering inventions have been widely adopted and are thus now

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essential to the modern wireless hospitality enterprise of the 21st Century. Ameranth’s

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solutions have been adopted, licensed and/or deployed by numerous entities across the

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hospitality industry.

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The adoption of Ameranth’s technology by industry leaders and the wide acclaim

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received by Ameranth for its technological innovations are just some of the many

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confirmations of the breakthrough aspects of Ameranth’s inventions. Ameranth has received

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twelve different technology awards (three with “end customer” partners) and has been widely

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recognized as a hospitality wireless/internet technology leader by almost all major national and

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hospitality print publications, e.g., The Wall Street Journal, New York Times, USA Today and
-3COMPLAINT FOR PATENT INFRINGEMENT

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many others. Ameranth was personally nominated by Bill Gates, the Founder of Microsoft, for

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the prestigious Computerworld Honors Award that Ameranth received in 2001 for its

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breakthrough synchronized reservations/ticketing system with the Improv Comedy Theatres.

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In his nomination, Mr. Gates described Ameranth as “one of the leading pioneers of

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information technology for the betterment of mankind.” This prestigious award was based on

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Ameranth’s innovative synchronization of wireless/web/fixed hospitality software technology.

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Subsequently, the United States Patent and Trademark Office granted Ameranth a number of

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currently-issued patents, two of which are the basis for this lawsuit. Ameranth has issued press

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releases announcing these patent grants on business wires, on its web sites and at numerous

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trade shows since the first of the two presently-asserted patents issued in 2002. A number of

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companies have licensed patents and technology from Ameranth, recognizing and confirming

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the value of Ameranth’s innovations.

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The Ameranth patents asserted herein, U.S. Patent No. 6,384,850 (the “’850 patent”),

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U.S. Patent No. 6,871,325 (the “’325 patent”), U.S. Patent No. 6,982,733 (the “’733 patent”),

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and U.S. Patent No. 8,146,077 (the “’077 patent”) are all patents in Ameranth’s “Information

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Management and Synchronous Communications” patent family.

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13.

Apple is well aware of this Ameranth patent family. One of the Ameranth patents-

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in-suit, U.S. Patent No. 6,384,850 – the first patent issued in this Ameranth patent family – was

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cited as a prior art reference in two Apple iPhone patents issued to named inventors Bas

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Ording and Steven P. Jobs. Also, three of the patents in this Ameranth patent family have been

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asserted in several patent enforcement actions against Apple business partners, as noted above.

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RELATED CASES PREVIOUSLY FILED
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Ameranth is also currently asserting claims of patents in this patent family in

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separate lawsuits, against other defendants, that are already pending in this Court. The first-

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filed lawsuit asserts claims of the ‘850 and ‘325 patents and is entitled Ameranth v. Pizza Hut,

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Inc. et al., Case No. 3:11-cv-01810-JLS-NLS. Lawsuits subsequently filed by Ameranth in

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this Court, also asserting claims of the ‘077 patent, include but are not limited to Case Nos.

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3:12-cv-00729-JLS-NLS; 3:12-cv-00731-JLS-NLS; 3:12-cv-00732-JLS-NLS; 3:12-cv-00733-4COMPLAINT FOR PATENT INFRINGEMENT

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JLS-NLS; 3:12-cv-00737-JLS-NLS; 3:12-cv-00738-JLS-NLS; 3:12-cv-00739-JLS-NLS; 3:12-

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cv-00742-JLS-NLS, and 3:12-cv-00858-JLS-NLS.

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COUNT I

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Patent Infringement (U.S. Pat. No. 6,384,850)

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(35 U.S.C. § 271)

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15.

Plaintiff reiterates and incorporates the allegations set forth in paragraphs 1-14 above

as if fully set forth herein.
16.

On May 7, 2002, United States Patent No. 6,384,850 entitled “Information

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Management and Synchronous Communications System with Menu Generation” (“the ‘850

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patent”) (a true and copy of which is attached hereto as Exhibit A) was duly and legally issued

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by the United States Patent & Trademark Office.

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Plaintiff Ameranth is the lawful owner by assignment of all right, title and interest in

and to the ‘850 patent.
18.

In or about September 2012, Apple introduced Passbook, a product/service available

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on iPhone and iPod Touch devices that are running Apple’s iOS 6 software. The Passbook

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“pass styles” that Apple has defined as “boarding pass” and “event ticketing” permit the

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downloading and storage of, inter alia, airline boarding passes, hotel reservations, movie

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tickets, and event tickets (e.g., Fandango movie tickets, Ticketmaster and StubHub event

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tickets, and American Airlines and United Airlines tickets and boarding passes) to an iPhone or

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iPod Touch, from which the ticket or boarding pass can be displayed and scanned at, for

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example, the appropriate movie theatre, event venue, hotel, or airport. Passbook may be used

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by downloading a Passbook-compatible app (e.g., for Fandango, Ticketmaster, StubHub, or

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United Airlines) from Apple’s “App Store” for the merchant corresponding to the “tickets” that

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are to be stored in Passbook.

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19.

On information and belief, Apple directly infringes and continues to directly infringe

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one or more valid and enforceable claims of the ‘850 patent, in violation of 35 U.S.C. § 271(a)

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by making, using, offering for sale or license and/or selling or licensing infringing systems,

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products, and/or services in the United States without authority or license from Ameranth,
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including but not limited to the Apple products/services that include, inter alia, the Passbook

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Ticketing System (hereinafter “PBS”) which includes the “pass styles” that Apple has defined

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as “boarding pass” and “event ticketing” applications within Passbook, which permits the

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downloading and storage of, inter alia, airline boarding passes, hotel reservations, movie

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tickets, and event tickets, and is integrated with iPhone 5 and other iPhone and iPod Touch

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devices that are running Apple’s iOS 6 software, and linked to/with Apple’s iCloud, the

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“Apple Notification Service”, and Apple’s Safari browser.

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20.

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

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indirectly infringe one or more valid and enforceable claims of the ‘850 patent, in violation of

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35 U.S.C. § 271(b), by actively, knowingly, and intentionally inducing direct infringement by

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other persons, including consumers and the businesses identified elsewhere in this complaint,

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by making, using, offering for sale or license and/or selling or licensing infringing systems,

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products, and/or services in the United States without authority or license from Ameranth,

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including but not limited to PBS.

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21.

Apple infringes by its own actions and through, or in concert with, agents of Apple

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who are under the direction and control of Apple by virtue of contractual agreements between

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Apple and such parties.

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22.

On information and belief, systems including the PBS, as deployed and/or used by

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Apple, its agents, distributors, partners, affiliates, licensees, third-party businesses, and/or their

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customers, infringe one or more valid and enforceable claims of the ‘850 patent, by, inter alia,

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doing, or providing the capability for doing, at least one of the following: (a) Generating and

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transmitting menus in a system including a central processing unit, a data storage device, a

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computer operating system containing a graphical user interface, one or more displayable main

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menus, modifier menus, and sub-modifier menus, and application software for generating a

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second menu and transmitting it to a wireless handheld computing device or a Web page;

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and/or (b) Enabling ticketing, reservations, and other hospitality functions via iPhone and iPod

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Touch devices, storing hospitality information and data on at least one central database, on at

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least one wireless handheld computing device, and on at least one Web server and Web page,
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and synchronizing applications and data, including but not limited to applications and data

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relating to ordering, between at least one central database, wireless handheld computing

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devices, and at least one Web server and Web page; utilizing an interface that provides a single

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point of entry that allows the synchronization of at least one wireless handheld computing

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device and at least one Web page with at least one central database; allowing information to be

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entered via Web pages, transmitted over the internet, and automatically communicated to at

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least one central database and to wireless handheld computing devices; allowing information to

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be entered via wireless handheld computing devices, transmitted over the internet, and

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automatically communicated to at least one central database and to Web pages.

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23.

On information and belief, other persons, including consumers and the businesses

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identified elsewhere in this complaint, use the PBS in a manner that infringes upon one or more

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valid and enforceable claims of the ‘850 patent. Apple provides instruction and direction

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regarding the use of the PBS and advertises, promotes, and encourages the use of the PBS.

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24.

On information and belief, Apple actively induces others to infringe the ‘850 patent

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in violation of 35 U.S.C. §271(b) by knowingly encouraging, aiding and abetting persons,

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including consumers and those businesses identified elsewhere in this complaint, to use the

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infringing PBS in the United States without authority or license from Ameranth.

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25.

On information and belief, Apple contributorily infringes and continues to

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contributorily infringe one or more valid and enforceable claims of the ‘850 patent, in violation

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of 35 U.S.C. § 271(c) by offering to sell and/or selling components of systems on which claims

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of the ‘850 patent read, constituting a material part of the invention, knowing that the

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components were especially adapted for use in systems which infringe claims of the ‘850

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patent, including the systems of the businesses identified elsewhere in this complaint.

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26.

By distributing, selling, offering, offering to sell or license and/or selling or licensing

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the PBS, Apple provides non-staple articles of commerce to others, including consumers and

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those businesses identified elsewhere in this complaint, for use in infringing systems, products,

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and/or services. Additionally, Apple provides instruction and direction regarding the use of the

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PBS and advertises, promotes, and encourages the use of the PBS. Users of the PBS directly
-7COMPLAINT FOR PATENT INFRINGEMENT

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infringe one or more valid and enforceable claims of the ‘850 patent, for the reasons set forth

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hereinabove.

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27.

Apple has long had knowledge of the ‘850 patent, as set forth above, and, at least as

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of the filing of this complaint, knowledge that the PBS, which is a non-staple article of

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commerce, has been used by others, including consumers and those businesses identified

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elsewhere in this complaint, as a material part of the claimed invention of the ‘850 patent, and

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that there are no substantial non-infringing uses for the PBS because use of the PBS includes at

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least one of the following: (a) Generating and transmitting menus in a system including a

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central processing unit, a data storage device, a computer operating system containing a

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graphical user interface, one or more displayable main menus, modifier menus, and sub-

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modifier menus, and application software for generating a second menu and transmitting it to a

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wireless handheld computing device or a Web page; and/or (b) Enabling ticketing,

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reservations, and other hospitality functions via iPhone and iPod Touch devices, storing

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hospitality information and data on at least one central database, on at least one wireless

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handheld computing device, and on at least one Web server and Web page, and synchronizing

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applications and data, including but not limited to applications and data relating to ordering,

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between at least one central database, wireless handheld computing devices, and at least one

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Web server and Web page; utilizing an interface that provides a single point of entry that

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allows the synchronization of at least one wireless handheld computing device and at least one

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Web page with at least one central database; allowing information to be entered via Web pages,

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transmitted over the internet, and automatically communicated to at least one central database

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and to wireless handheld computing devices; allowing information to be entered via wireless

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handheld computing devices, transmitted over the internet, and automatically communicated to

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at least one central database and to Web pages.

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28.

On information and belief, the aforesaid infringing activities of defendant Apple have

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been done with knowledge and willful disregard of Ameranth’s patent rights, making this an

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exceptional case within the meaning of 35 U.S.C. § 285.

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-8COMPLAINT FOR PATENT INFRINGEMENT

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29.

The aforesaid infringing activity of defendant Apple has directly and proximately

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caused damage to plaintiff Ameranth, including loss of profits from sales it would have made

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but for the infringements. Unless enjoined, the aforesaid infringing activity will continue and

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cause irreparable injury to Ameranth for which there is no adequate remedy at law.

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COUNT II

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Patent Infringement (U.S. Pat. No. 6,871,325)

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(35 U.S.C. § 271)

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30.

Plaintiff reiterates and reincorporates the allegations set forth in paragraphs 1-29

above as if fully set forth herein.
31.

On March 22, 2005, United States Patent No. 6,871,325 entitled “Information

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Management and Synchronous Communications System with Menu Generation” (“the ‘325

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patent”) (a true and correct copy of which is attached hereto as Exhibit B) was duly and legally

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issued by the United States Patent & Trademark Office.

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32.

Plaintiff Ameranth is the lawful owner by assignment of all right, title and interest in

and to the ‘325 patent.
33.

On information and belief, Apple directly infringes and continues to directly infringe

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one or more valid and enforceable claims of the ‘325 patent, in violation of 35 U.S.C. § 271(a)

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by making, using, offering for sale or license and/or selling or licensing infringing systems,

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products, and/or services in the United States without authority or license from Ameranth,

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including but not limited to the PBS.

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34.

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

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indirectly infringe one or more valid and enforceable claims of the ‘325 patent, in violation of

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35 U.S.C. § 271(b), by actively, knowingly, and intentionally inducing direct infringement by

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other persons, including consumers and those businesses identified elsewhere in this complaint,

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by making, using, offering for sale or license and/or selling or licensing infringing systems,

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products, and/or services in the United States without authority or license from Ameranth,

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including but not limited to the PBS.

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-9COMPLAINT FOR PATENT INFRINGEMENT

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35.

Apple infringes by its own actions and through, or in concert with, agents of Apple

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who are under the direction and control of Apple by virtue of contractual agreements between

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Apple and such parties.

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36.

On information and belief, systems including the PBS, as deployed and/or used by

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Apple, its agents, distributors, partners, affiliates, licensees, third-party businesses, and/or their

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customers, infringe one or more valid and enforceable claims of the ‘325 patent, by, inter alia,

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doing, or providing the capability for doing, at least one of the following: (a) Generating and

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transmitting menus in a system including a central processing unit, a data storage device, a

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computer operating system containing a graphical user interface, one or more displayable main

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menus, modifier menus, and sub-modifier menus, and application software for generating a

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second menu and transmitting it to a wireless handheld computing device or a Web page;

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and/or (b) Enabling ticketing, reservations, and other hospitality functions via iPhone and

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iPodTouch devices as well as via Web pages, storing hospitality information and data on at

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least one central database, on at least one wireless handheld computing device, and on at least

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one Web server and Web page, and synchronizing applications and data, including but not

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limited to applications and data relating to orders, between at least one central database,

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wireless handheld computing devices, and at least one Web server and Web page.

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37.

On information and belief, persons including consumers and the businesses identified

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elsewhere in this complaint use the PBS in a manner that infringes upon one or more valid and

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enforceable claims of the ‘325 patent. Apple provides instruction and direction regarding the

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use of the PBS and advertises, promotes, and encourages the use of the PBS.

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38.

On information and belief, Apple actively induces others to infringe the ‘325 patent

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in violation of 35 U.S.C. §271(b) by knowingly encouraging, aiding and abetting persons

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including consumers and those businesses identified elsewhere in this complaint, to use the

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infringing PBS in the United States without authority or license from Ameranth.

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39.

On information and belief, Apple contributorily infringes and continues to

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contributorily infringe one or more valid and enforceable claims of the ‘325 patent, in violation

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of 35 U.S.C. § 271(c) by offering to sell and/or selling components of systems on which claims
-10COMPLAINT FOR PATENT INFRINGEMENT

1

of the ‘325 patent read, constituting a material part of the invention, knowing that the

2

components were especially adapted for use in systems which infringe claims of the ‘325

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patent, including the systems of the businesses identified elsewhere in this complaint.

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40.

By distributing, selling, offering, offering to sell or license and/or selling or licensing

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the PBS, Apple provides non-staple articles of commerce to others, including consumers and

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those businesses identified elsewhere in this complaint, for use in infringing systems, products,

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and/or services. Additionally, Apple provides instruction and direction regarding the use of the

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PBS and advertises, promotes, and encourages the use of the PBS. Users of the PBS directly

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infringe one or more valid and enforceable claims of the ‘325 patent, for the reasons set forth

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hereinabove.

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41.

Apple has had knowledge of the ‘325 patent, at least as early as the filing of this

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complaint, including knowledge that the PBS which is a non-staple article of commerce, has

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been used by others, including consumers and those businesses identified elsewhere in this

14

complaint, as a material part of the claimed invention of the ‘325 patent, and that there are no

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substantial non-infringing uses for the PBS because use of the PBS includes at least one of the

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following: (a) Generating and transmitting menus in a system including a central processing

17

unit, a data storage device, a computer operating system containing a graphical user interface,

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one or more displayable main menus, modifier menus, and sub-modifier menus, and

19

application software for generating a second menu and transmitting it to a wireless handheld

20

computing device or a Web page; and/or (b) Enabling ticketing, reservations, and other

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hospitality functions via iPhone and iPodTouch devices as well as via Web pages, storing

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hospitality information and data on at least one central database, on at least one wireless

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handheld computing device, and on at least one Web server and Web page, and synchronizing

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applications and data, including but not limited to applications and data relating to orders,

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between at least one central database, wireless handheld computing devices, and at least one

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Web server and Web page.

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-11COMPLAINT FOR PATENT INFRINGEMENT

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42.

On information and belief, the aforesaid infringing activities of defendant Apple have

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been done with knowledge and willful disregard of Ameranth’s patent rights, making this an

3

exceptional case within the meaning of 35 U.S.C. § 285.

4

43.

The aforesaid infringing activity of defendant Apple has directly and proximately

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caused damage to plaintiff Ameranth, including loss of profits from sales it would have made

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but for the infringements. Unless enjoined, the aforesaid infringing activity will continue and

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cause irreparable injury to Ameranth for which there is no adequate remedy at law.

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COUNT III

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Patent Infringement (U.S. Pat. No. 6,982,733)

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(35 U.S.C. § 271)

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44.

Plaintiff reiterates and reincorporates the allegations set forth in paragraphs 1-43

above as if fully set forth herein.
45.

On January 3, 2006, United States Patent No. 6,982,733 entitled “Information

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Management and Synchronous Communications System with Menu Generation, and

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Handwriting and Voice Modification of Orders” (“the ‘733 patent”) (a true and correct copy of

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which is attached hereto as Exhibit C) was duly and legally issued by the United States Patent

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& Trademark Office.

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46.

Plaintiff Ameranth is the lawful owner by assignment of all right, title and interest in

and to the ‘733 patent.
47.

Siri is a speech-recognition and voice control/command application available on

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certain models of the iPhone and iPod Touch. With iOS 6, Siri is integrated with third-party

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systems/products/services including, inter alia, OpenTable. Siri sends commands through a

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remote server using a wireless data connection.

24

48.

On information and belief, Apple directly infringes and continues to directly infringe

25

one or more valid and enforceable claims of the ‘733 patent, in violation of 35 U.S.C. § 271(a)

26

by making, using, offering for sale or license and/or selling or licensing infringing systems,

27

products, and/or services in the United States without authority or license from Ameranth,

28

including but not limited to the PBS and Siri.
-12COMPLAINT FOR PATENT INFRINGEMENT

1

49.

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

2

indirectly infringe one or more valid and enforceable claims of the ‘733 patent, in violation of

3

35 U.S.C. § 271(b), by actively, knowingly, and intentionally inducing direct infringement by

4

other persons, including consumers and the businesses identified elsewhere in this complaint,

5

by making, using, offering for sale or license and/or selling or licensing infringing systems,

6

products, and/or services in the United States without authority or license from Ameranth,

7

including but not limited to the PBS and Siri.

8
9
10
11

50.

Apple infringes by its own actions and through, or in concert with, agents of Apple

who are under the direction and control of Apple by virtue of contractual agreements between
Apple and such parties.
51.

On information and belief, systems including the PBS, and/or Siri, as deployed and/or

12

used by Apple, its agents, distributors, partners, affiliates, licensees, third-party businesses,

13

and/or their customers, infringe one or more valid and enforceable claims of the ‘733 patent, by

14

doing, or providing the capability for doing, at least one of the following: (a) Generating menus

15

in a system including a central processing unit, a data storage device connected to said central

16

processing unit, an operating system including a graphical user interface, a first menu stored on

17

said data storage device, application software for generating a second menu from said first menu

18

that facilitates the generation of the second menu by allowing selection of items from the first

19

menu, addition of items to the second menu and assignment of parameters to items in the

20

second menu using the graphical user interface of said operating system and data comprising the

21

second menu is synchronized between the data storage device connected to the central

22

processing unit and at least one other computing device, and said second menu is manually

23

modified by voice recording or capture or recognition after generation; and/or (b) Generating

24

menus in a system including a microprocessor, a display device, a data and instruction input

25

device, a data storage device for storing information and instructions entered through said data

26

and instruction input means or information generated by said microprocessor, an operating

27

system, a master menu stored on said data storage device for generating a modified menu, and

28

application software, wherein said microprocessor, operating system and application software
-13COMPLAINT FOR PATENT INFRINGEMENT

1

are operative to display the master menu on the display device in response to instructions

2

programmed into said microprocessor, operating system, application software and information

3

and instructions entered through said data input device, and said microprocessor, operating

4

system and application software are operative to create the modified menu from said master

5

menu in response to information and instructions entered through said data and instruction input

6

device and data comprising the modified menu is synchronized between the data storage device

7

and at least one other computing device, wherein said modified menu is manually modified

8

after generation.

9

52.

On information and belief, persons, including consumers and the businesses

10

identified elsewhere in this complaint, use the PBS and Siri in a manner that infringes upon one

11

or more valid and enforceable claims of the ‘733 patent. Apple provides instruction and

12

direction regarding the use of the PBS and Siri and advertises, promotes, and encourages the

13

use of the PBS and Siri.

14

53.

On information and belief, Apple actively induces others to infringe the ‘733 patent

15

in violation of 35 U.S.C. §271(b) by knowingly encouraging, aiding and abetting persons,

16

including consumers and those businesses identified elsewhere in this complaint, to use the

17

infringing PBS and Siri in the United States without authority or license from Ameranth.

18

54.

On information and belief, Apple contributorily infringes and continues to

19

contributorily infringe one or more valid and enforceable claims of the ‘733 patent, in violation

20

of 35 U.S.C. § 271(c) by offering to sell and/or selling components of systems on which claims

21

of the ‘733 patent read, constituting a material part of the invention, knowing that the

22

components were especially adapted for use in systems which infringe claims of the ‘733

23

patent, including the systems of the businesses identified elsewhere in this complaint.

24

55.

By distributing, selling, offering, offering to sell or license and/or selling or licensing

25

the PBS, Apple provides non-staple articles of commerce to others, including consumers and

26

those businesses identified elsewhere in this complaint, for use in infringing systems, products,

27

and/or services. Additionally, Apple provides instruction and direction regarding the use of the

28

PBS and advertises, promotes, and encourages the use of the PBS. Users of the PBS directly
-14COMPLAINT FOR PATENT INFRINGEMENT

1

infringe one or more valid and enforceable claims of the ‘733 patent, for the reasons set forth

2

hereinabove.

3

56.

Apple has had knowledge of the ‘733 patent, at least as early as the filing of this

4

complaint, including knowledge that the PBS, which is a non-staple article of commerce, has

5

been used by others, including consumers and those businesses identified elsewhere in this

6

complaint, as a material part of the claimed invention of the ‘733 patent, and that there are no

7

substantial non-infringing uses for the PBS because use of the PBS includes at least one of the

8

following: (a) Generating menus in a system including a central processing unit, a data storage

9

device connected to said central processing unit, an operating system including a graphical

10

user interface, a first menu stored on said data storage device, application software for

11

generating a second menu from said first menu that facilitates the generation of the second

12

menu by allowing selection of items from the first menu, addition of items to the second menu

13

and assignment of parameters to items in the second menu using the graphical user interface of

14

said operating system and data comprising the second menu is synchronized between the data

15

storage device connected to the central processing unit and at least one other computing device,

16

and said second menu is manually modified by voice recording or capture or recognition after

17

generation; and/or (b) Generating menus in a system including a microprocessor, a display

18

device, a data and instruction input device, a data storage device for storing information and

19

instructions entered through said data and instruction input means or information generated by

20

said microprocessor, an operating system, a master menu stored on said data storage device for

21

generating a modified menu, and application software, wherein said microprocessor, operating

22

system and application software are operative to display the master menu on the display device

23

in response to instructions programmed into said microprocessor, operating system, application

24

software and information and instructions entered through said data input device, and said

25

microprocessor, operating system and application software are operative to create the modified

26

menu from said master menu in response to information and instructions entered through said

27

data and instruction input device and data comprising the modified menu is synchronized

28
-15COMPLAINT FOR PATENT INFRINGEMENT

1

between the data storage device and at least one other computing device, wherein said

2

modified menu is manually modified after generation.

3

57.

On information and belief, the aforesaid infringing activities of defendant Apple have

4

been done with knowledge and willful disregard of Ameranth’s patent rights, making this an

5

exceptional case within the meaning of 35 U.S.C. § 285.

6

58.

The aforesaid infringing activity of defendant Apple has directly and proximately

7

caused damage to plaintiff Ameranth, including loss of profits from sales it would have made

8

but for the infringements. Unless enjoined, the aforesaid infringing activity will continue and

9

cause irreparable injury to Ameranth for which there is no adequate remedy at law.

10

COUNT IV

11

Patent Infringement (U.S. Pat. No. 8,146,077)

12

(35 U.S.C. § 271)

13
14
15

59.

Plaintiff reiterates and incorporates the allegations set forth in paragraphs 1-58 above

as if fully set forth herein.
60.

On March 27, 2012, United States Patent No. 8,146,077 entitled “Information

16

Management and Synchronous Communications System with Menu Generation, and

17

Handwriting and Voice Modification of Orders” (a true copy of which is attached hereto as

18

Exhibit D and incorporated herein by reference) was duly and legally issued by the United

19

States Patent & Trademark Office.

20
21
22

61.

Plaintiff Ameranth is the lawful owner by assignment of all right, title and interest in

and to the ‘077 patent.
62.

On information and belief, Apple directly infringes and continues to directly infringe

23

one or more valid and enforceable claims of the ‘077 patent, in violation of 35 U.S.C. § 271(a)

24

by making, using, offering for sale or license and/or selling or licensing infringing systems,

25

products, and/or services in the United States without authority or license from Ameranth,

26

including but not limited to the PBS.

27
28

63.

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

indirectly infringe one or more valid and enforceable claims of the ‘077 patent, in violation of
-16COMPLAINT FOR PATENT INFRINGEMENT

1

35 U.S.C. § 271(b), by actively, knowingly, and intentionally inducing direct infringement by

2

other persons, including consumers and those businesses identified elsewhere in this complaint,

3

by making, using, offering for sale or license and/or selling or licensing infringing systems,

4

products, and/or services in the United States without authority or license from Ameranth,

5

including but not limited to the PBS.

6

64.

Apple infringes by its own actions and through, or in concert with, agents of Apple

7

who are under the direction and control of Apple by virtue of contractual agreements between

8

Apple and such parties.

9

65.

On information and belief, systems including the PBS, as deployed and/or used by

10

Apple, its agents, distributors, partners, affiliates, licensees, third-party businesses, and/or their

11

customers, infringe one or more valid and enforceable claims of the ‘077 patent, by, inter alia,

12

doing, or providing the capability for doing, at least one of the following: (a) Configuring and

13

transmitting menus in a system including a central processing unit, a data storage device, a

14

computer operating system containing a graphical user interface, one or more displayable

15

master menus, menu configuration software enabled to generate a menu configuration for a

16

wireless handheld computing device in conformity with a customized display layout, and

17

enabled for synchronous communications and to format the menu configuration for a

18

customized display layout of at least two different wireless handheld computing device display

19

sizes, and/or (b) Enabling ticketing, reservations, and other hospitality functions via iPhone and

20

iPod Touch devices as well as via Web pages, storing hospitality information and data on at

21

least one database, on at least one wireless handheld computing device, and on at least one

22

Web server and Web page, and synchronizing applications and data, including but not limited

23

to applications and data relating to orders, between at least one database, wireless handheld

24

computing devices, and at least one Web server and Web page; utilizing communications

25

control software enabled to link and synchronize hospitality information between at least one

26

database, wireless handheld computing device, and web page, to display information on web

27

pages and on different wireless handheld computing device display sizes, and to allow

28

information to be entered via Web pages, transmitted over the internet, and automatically
-17COMPLAINT FOR PATENT INFRINGEMENT

1

communicated to at least one database and to wireless handheld computing devices; allowing

2

information to be entered via wireless handheld computing devices, transmitted over the

3

internet, and automatically communicated to at least one database and to Web pages.

4

66.

On information and belief, persons including consumers and those businesses

5

identified elsewhere in this complaint use the PBS in a manner that infringes upon one or more

6

valid and enforceable claims of the ‘077 patent. Apple provides instruction and direction

7

regarding the use of the PBS and advertises, promotes, and encourages the use of the PBS.

8

Apple has had knowledge of the ‘077 patent, at least as early as the filing of this

67.

9

complaint. On information and belief, Apple actively induces others to infringe the ‘077 patent

10

in violation of 35 U.S.C. §271(b) by knowingly encouraging, aiding and abetting persons

11

including consumers and those businesses identified elsewhere in this complaint, to use the

12

infringing PBS in the United States without authority or license from Ameranth.

13

68.

On information and belief, the aforesaid infringing activities of defendant Apple have

14

been done with knowledge and willful disregard of Ameranth’s patent rights, making this an

15

exceptional case within the meaning of 35 U.S.C. § 285.

16

69.

The aforesaid infringing activity of defendant Apple has directly and proximately

17

caused damage to plaintiff Ameranth, including loss of profits from sales it would have made

18

but for the infringements. Unless enjoined, the aforesaid infringing activity will continue and

19

cause irreparable injury to Ameranth for which there is no adequate remedy at law.

20
21
22

PRAYER FOR RELIEF
WHEREFORE, plaintiff Ameranth respectfully prays for judgment against defendant
Apple, as follows:

23

1. Adjudging that the manufacture, use, offer for sale or license and /or sale or license

24

of the PBS indirectly infringes valid and enforceable claims of the ‘850 patent, and the ‘325

25

patent, and the ‘733 patent, and the ‘077 patent, as set forth hereinabove;

26

2. Adjudging that Apple has infringed, actively induced others to infringe and/or

27

contributorily infringed valid and enforceable claims of the ‘850 patent, and the ‘325 patent,

28

and the ‘733 patent, and the ‘077 patent, as set forth hereinabove;
-18COMPLAINT FOR PATENT INFRINGEMENT

1

3. Adjudging that Apple’s indirect infringement of the valid and enforceable claims of

2

the ‘850 patent, and the ‘325 patent, and the ‘733 patent, and the ‘077 patent, has been

3

knowing and willful;

4

4. Enjoining Apple, and its officers, directors, employees, attorneys, agents,

5

representatives, parents, subsidiaries, affiliates and all other persons acting in concert,

6

participation or privity with Apple, and their successors and assigns, from infringing,

7

contributorily infringing and/or inducing others to infringe the valid and enforceable claims of

8

the ‘850 patent, and the ‘325 patent, and the ‘733 patent, and the ‘077 patent;
5. Awarding Ameranth the damages it has sustained by reason of Apple’s infringement,

9
10

together with interest and costs pursuant to 35 U.S.C. § 284;

11

6. Awarding Ameranth increased damages of three times the amount of damages found

12

or assessed against Apple by reason of the knowing, willful and deliberate nature of Apple’s

13

acts of infringement pursuant to 35 U.S.C. § 284;
7. Adjudging this to be an exceptional case and awarding Ameranth its attorney’s fees

14
15

pursuant to 35 U.S.C. §285;

16

8. Awarding to Ameranth its costs of suit, and interest as provided by law; and

17

9. Awarding to Ameranth such other and further relief that this Court may deem just

18

and proper.

19

//

20

//

21

//

22

//

23

//

24

//

25

//

26

//

27

//

28

//
-19COMPLAINT FOR PATENT INFRINGEMENT

1
2
3

DEMAND FOR JURY TRIAL
Ameranth demands trial by jury of its claims set forth herein to the maximum extent
permitted by law.

4
5
6

Respectfully submitted,
Dated: September 26, 2012

CALDARELLI HEJMANOWSKI & PAGE LLP
By:/s/ William J. Caldarelli
William J. Caldarelli

7
8

FABIANO LAW FIRM, P.C.
Michael D. Fabiano

9

OSBORNE LAW LLC
John W. Osborne

10
11

WATTS LAW OFFICES
Ethan M. Watts

12

Attorneys for Plaintiff AMERANTH, INC.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
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28
-20COMPLAINT FOR PATENT INFRINGEMENT