CreateAds LLC v. Google Inc.

Filing 1

COMPLAINT FOR PATENT INFRINGEMENT filed with Jury Demand against Google Inc. - Magistrate Consent Notice to Pltf. ( Filing fee $ 350, receipt number 0311-1181570.) - filed by CreateAds LLC. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet)(dzb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CREATEADS LLC,
Plaintiff

C.A. No.

v.
JURY TRIAL DEMANDED
GOOGLE INC.,
Defendant.

COMPLAINT FOR PATENT INFRINGEMENT
Plaintiff CreateAds LLC (“CreateAds”) alleges as follows:
BACKGROUND
1.

Clive Gay is a visionary in the advertising and reprographic industry.

Back in the early 1990s, Mr. Gay was working in London and saw the problems
associated with generating visual designs. For example, in advertising, agencies typically
required a week or more to generate visual designs. Mr. Gay envisioned an automated
method whereby, among other things, software could use predetermined design
parameters and predetermined visual design applications to quickly and easily generate
visual designs. This led to the filing of the patent application resulting in U.S. Patent No.
5,535,320 (the “CreateAds patent” or “‘320 patent”). In addition, Mr. Gay, along with
Henri Frencken, developed and refined the software over several years and at the cost of
several million dollars. Aspects of this software power two of Mr. Gay’s companies,
CreateAds.com (www.createads.com) and Simply D’nA (www.simplydna.com), which at
their peak had over 80 employees including eight software developers. The technology
of the CreateAds patent has been adopted by several segments of the visual design

industry, including business marketing, customized user interfaces, personalized
products, and advertising.
2.

CreateAds is the owner by assignment of the ‘320 patent. The CreateAds

patent is entitled “Method of Generating a Visual Design.” The CreateAds patent issued
on July 9, 1996, based on U.S. Patent Application No. 268,613, filed July 1, 1994, and
United Kingdom Patent Application No. 9313761, filed July 2, 1993. A true and correct
copy of the CreateAds patent is attached hereto as Exhibit A.
PARTIES
3.

CreateAds is a Delaware limited liability company.

4.

Defendant Google Inc. (“Google” or “Defendant”) is a Delaware

corporation with a principal place of business at 1600 Amphitheatre Parkway, Mountain
View, California 94043. Defendant has appointed The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, as its agent
for service of process.
JURISDICTION AND VENUE
5.

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

the United States Code. Accordingly, this Court has subject matter jurisdiction under 28
U.S.C. §§ 1331 and 1338(a).
6.

This Court has personal jurisdiction over Defendant because, among other

reasons, Defendant is incorporated under the laws of the State of Delaware and has
established minimum contacts with the forum state of Delaware. Defendant, directly
and/or through third-party intermediaries, makes, uses, imports, offers for sale, and/or
sells products and services within the state of Delaware. Additionally, on information

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and belief, Defendant has committed and continues to commit acts of direct and indirect
infringement in this District by making, using, importing, offering for sale, and/or selling
infringing products, and inducing others to perform method steps claimed by CreateAds’
patent in Delaware.
7.

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

1400(b) because, among other reasons, Defendant is incorporated under the laws of the
State of Delaware, and Defendant has conducted and continues to conduct regular and
ongoing business in Delaware. Additionally, on information and belief, Defendant has
committed and continues to commit acts of direct and indirect infringement in this
District by making, using, importing, offering for sale, and/or selling infringing products,
and inducing others to perform method steps claimed by CreateAds’ patent in Delaware.
COUNT I
(Infringement of U.S. Patent No. 5,535,320)
8.

In violation of one or more provisions of 35 U.S.C. § 271, Defendant has

been and still is infringing one or more claims of the CreateAds patent, literally and under
the doctrine of equivalents, by making, using, selling, offering to sell, or importing,
without license or authority, template-based visual design generation products and
services, including, but not limited to, Google Sites.
9.

Additionally, Defendant also has infringed and continues to infringe the

CreateAds patent by actively inducing infringement of the CreateAds patent. On
November 28, 2012, Defendant received a letter notifying it that its template-based visual
design generation products and services infringe one or more claims of the CreateAds
patent. Defendant has had actual knowledge of the CreateAds patent since at least
November 28, 2012, or alternatively since being served with this complaint, and

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Defendant has induced infringement of the CreateAds patent since at least this time by
providing instructions and assistance to users/customers on how to utilize Google Sites
such that a plurality of visual design elements and a plurality of predetermined design
parameters are stored; one of a plurality of predetermined visual design applications,
wherein each predetermined visual design application is associated with a predetermined
design parameter, and a visual design element, are selected; and a visual design using the
selected visual design element, with the size and position of the element in the visual
design being determined by the predetermined design parameter, and a representation of
the visual design, are generated. Defendant’s customers infringe the CreateAds patent by
using Defendant’s website. By continuing the representative aforementioned activities
with knowledge of the CreateAds patent, Defendant has known, or should have known,
that it was inducing infringement by causing the method steps of the CreateAds patent to
be performed.
10.

To the extent that facts learned in discovery show that Defendant’s

infringement of the CreateAds patent is or has been willful, CreateAds reserves the right
to request such a finding at the time of trial.
11.

To the extent applicable, the requirements of 35 U.S.C. § 287(a) have been

met with respect to the CreateAds patent. For example, the ‘320 patent is clearly
identified on the homepage of the CreateAds.com website (www.createads.com).
12.

As a result of Defendant’s infringement of the CreateAds patent,

CreateAds has suffered monetary damages in an amount adequate to compensate for
Defendant’s infringement, but in no event less than a reasonable royalty for the use made
of the invention by Defendant, together with interest and costs as fixed by the Court, and

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CreateAds will continue to suffer damages in the future unless Defendant’s infringing
activities are enjoined by this Court.
13.

Unless a permanent injunction is issued enjoining Defendant and its

agents, servants, employees, representatives, affiliates, and all others acting or in active
concert therewith from infringing the CreateAds patent, CreateAds will be greatly and
irreparably harmed.
PRAYER FOR RELIEF
CreateAds prays for the following relief:
A.

A judgment that Defendant has infringed, directly or indirectly, one or

more claims of the CreateAds patent;
B.

A permanent injunction enjoining Defendant and its officers, directors,

agents, servants, affiliates, employees, divisions, branches, subsidiaries, parents, and all
others acting in active concert or participation with it, from infringing the CreateAds
patent;
C.

A judgment and order requiring Defendant to pay CreateAds its damages,

costs, expenses, and prejudgment and post-judgment interest for Defendant’s acts of
infringement in accordance with 35 U.S.C. § 284;
D.

A judgment and order finding that this is an exceptional case within the

meaning of 35 U.S.C. § 285 and awarding to CreateAds its reasonable attorneys’ fees
against Defendant;
E.

A judgment and order requiring Defendant to provide an accounting and

to pay supplemental damages to CreateAds, including, without limitation, prejudgment
and post-judgment interest; and

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F.

Any and all other relief to which CreateAds may be entitled.
JURY TRIAL DEMANDED

CreateAds hereby demands a trial by jury of all issues so triable.

November 29, 2012
BAYARD, P.A.
OF COUNSEL:
/s/ Stephen B. Brauerman
Richard D. Kirk (rk0922)
Stephen B. Brauerman (sb4952)
Vanessa R. Tiradentes (vt5398)
222 Delaware Avenue, Suite 900
Wilmington, DE 19801
[phone]
[e-mail]
[e-mail]
[e-mail]

Alexander C. D. Giza
Daniel P. Hipskind
RUSS, AUGUST & KABAT
12424 Wilshire Boulevard 12th Floor
Los Angeles, California 90025
[e-mail]
[e-mail]
[phone]

Attorneys for Plaintiff CreateAds LLC

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