Innovative Global Systems LLC v. OnStar, LLC

Filing 1

TRANSFERREDCOMPLAINT Original Complaint against ATX Group, Inc., BSM Wireless, Inc., OnStar, LLC, Power Solutions, Inc., Progressive Casualty Insurance Company, Xirgo Technologies, LLC ( Filing fee $ 350 receipt number 0540-2733082.), filed by Innovative Global Systems LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Civil Cover Sheet)(Cooke, Michael) (Additional attachment(s) added on 10/28/2010: # 7 Exhibit A Searchable, # 8 Exhibit B Searchable, # 9 Exhibit C Searchable, # 10 Exhibit D Searchable, # 11 Exhibit E Searchable) (mjc, ). [Case transferred in from Texas Eastern; Case Number 6:10-cv-00574.]

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
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INNOVATIVE GLOBAL SYSTEMS LLC,
Plaintiff,
vs.
ONSTAR, LLC, ATX GROUP, INC., XIRGO
TECHNOLOGIES, LLC, PROGRESSIVE
CASUALTY INSURANCE COMPANY,
POWER SOLUTIONS, INC. and BSM
WIRELESS INC.
Defendants.

CIVIL ACTION NO. ___________
JURY TRIAL DEMANDED

ORIGINAL COMPLAINT
Plaintiff INNOVATIVE GLOBAL SYSTEMS, LLC files its Original Complaint against
Defendants ONSTAR, LLC, ATX GROUP, INC., XIRGO TECHNOLOGIES, LLC,
PROGRESSIVE CASUALTY INSURANCE COMPANY, POWER SOLUTIONS, INC. and
BSM WIRELESS INC, alleging as follows:
I. THE PARTIES
1.

Plaintiff Innovative Global Systems, LLC (“IGS”) is a limited liability company

organized and existing under the laws of the State of South Carolina, with its principal place of
business in Rock Hill, South Carolina.
2.

Upon information and belief, OnStar, LLC (“OnStar”) is a limited liability

company organized and existing under the laws of the State of Delaware, with its principal place
of business in Detroit, Michigan. OnStar may be served with process through its registered agent
CT Corporation System located at 350 N. St. Paul Street, Dallas, Texas 75201.

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3.

Upon information and belief, ATX Group, Inc. (“ATX”) is a corporation

organized and existing under the laws of the State of Texas, with its principal place of business
in Irving, Texas. ATX may be served with process through its registered agent CT Corporation
System located at 350 N. St. Paul Street, Dallas, Texas 75201.
4.

Upon information and belief, Xirgo Technologies, LLC (“Xirgo”) is a corporation

organized and existing under the laws of the State of Delaware with its principal place of
business in Camarillo, CA. Xirgo may be served with process through its registered agent Roy
Schneider, 5425 Everglades Street, Ventura, CA 93003.
5.

Upon information and belief, Progressive Casualty Insurance Company

(“Progressive”) is a corporation organized and existing under the laws of the State of Ohio, with
its principal place of business located in Mayfield Village, OH. Progressive may be served with
process through its registered agent CT Corporation System located at 350 N. St. Paul Street,
Dallas, Texas 75201
6.

Upon information and belief, Power Solutions, Inc. (“Power Solutions”) (also

sometimes doing business as “MasterTrak”) is a corporation organized and existing under the
laws of the State of Illinois, with a principal place of business in Wood Dale, IL. Power
Solutions may be served with process through its registered agent for service, James W. Marks,
225 W. Washington, Suite 2200, Chicago, IL 60606.
7.

Upon information and belief, BSM Wireless, Inc. (“BSM”) is a Canadian

corporation with a principal place of business in Woodbridge, Ontario.

BSM engages in

business in the State of Texas but, upon information and belief, does not maintain a regular place
of business in the State or a designated agent for service of process. Therefore, pursuant to
§ 17.044 of the Tex. Civ. Prac. & Rem. Code, BSM has designated the Texas Secretary of State

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as its agent for service of process and may be served with process through its counsel or by
serving the Texas Secretary of State.
II. JURISDICTION AND VENUE
8.

This is an action for infringement of United States patents. This Court has

exclusive jurisdiction of such action under Title 28 U.S.C. § 1338(a).
9.

Upon information and belief, Defendants are each subject to personal jurisdiction

by this Court. Defendants have each committed such purposeful acts and/or transactions in the
State of Texas that they reasonably knew and/or expected that they could be hailed into a Texas
court as a future consequence of such activity. Defendants each either make, use, or sell
infringing products within the Eastern District of Texas, or have a continuing presence and the
requisite minimum contacts with the Eastern District of Texas such that this venue is a fair and
reasonable one. Upon information and belief Defendants have transacted and, at the time of the
filing of this Complaint, are continuing to transact business within the Eastern District of Texas.
For all of these reasons, personal jurisdiction exists as to all Defendants and venue is proper in
this Court under 28 U.S.C. §§ 1391(b) and (c) and 28 U.S.C. § 1400(b).
10.

Further, the Eastern District of Texas is the most judicially efficient venue to hear

this lawsuit because of this Court’s familiarity with the Patents-in-Suit over the past eighteen
months. This is the fourth lawsuit filed in this Division of the Eastern District of Texas by IGS
asserting the same five patents, all of which are in the field of telematics. The first lawsuit
initiated by IGS was Innovative Global Systems LLC v. Turnpike Global Technologies, Inc., et
al., Civil Action No. 6:09-CV-00157. In that case the Court considered full claim construction
briefing, conducted a Markman hearing, and issued a claim construction “Order” on June 4, 2010
setting forth the Court’s provisional Claim Construction Rulings. A Final Judgment was entered

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on August 3, 2010 after all six defendants in that suit were dismissed after reaching settlements
with IGS. Two additional lawsuits, Innovative Global Systems LLC v. Teletrac Inc., et al., Civil
Action No. 6:10-CV-00040 and Innovative Global Systems LLS v. Volvo Construction
Equipment North America, Inc., et al, Civil Action No. 6:10-cv-00327 are currently pending in
this Court. Thus, this Court is familiar with the Patents-in-Suit and the technology at issue and
is the most judicially economic and efficient venue for this fourth lawsuit by IGS on these same
Patents-in-Suit.
III. PATENTS-IN-SUIT
11.

On August 19, 2003, United States Patent No. 6,608,554 (“the ‘554 patent”) was

duly and legally issued for an “Apparatus and Method for Data Communication Between
Vehicle and Remote Data Communication Terminal.” A true and correct copy of the ‘554 patent
is attached hereto as Exhibit A and made a part hereof.
12.

On June 25, 2002, United States Patent No. 6,411,203 (“the ‘203 patent”) was

duly and legally issued for an “Apparatus and Method for Data Communication Between Heavy
Duty Vehicle and Remote Data Communication Terminal.” A true and correct copy of the ‘203
patent is attached hereto as Exhibit B and made a part hereof.
13.

On June 1, 2004 United States Patent No. 6,744,352 (“the ‘352 patent”) was duly

and legally issued for a “System, Apparatus and Methods for Data Communication Between
Vehicle and Remote Data Communication Terminal, Between Portions of Vehicle and Other
Portions of Vehicle, Between Two or More Vehicles, and Between Vehicle and Communications
Network.” A true and correct copy of the ‘352 patent is attached hereto as Exhibit C and made a
part hereof.

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14.

On March 21, 2006 United States Patent No. 7,015,800 (“the ‘800 patent”) was

duly and legally issued for a “System, Apparatus and Methods for Data Communication Between
Vehicle and Remote Data Communication Terminal, Between Portions of Vehicle and Other
Portions of Vehicle, Between Two or More Vehicles, and Between Vehicle and Communications
Network.” A true and correct copy of the ‘800 patent is attached hereto as Exhibit D and made a
part hereof.
15.

On November 11, 2008 United States Patent No. 7,449,993 (“the ‘993 patent”)

was duly and legally issued for a “System, Apparatus and Methods for Data Communication
Between Vehicle and Remote Data Communication Terminal, Between Portions of Vehicle and
Other Portions of Vehicle, Between Two or More Vehicles, and Between Vehicle and
Communications Network.” A true and correct copy of the ‘993 patent is attached hereto as
Exhibit E and made a part hereof.
16.

The ‘554 patent, the ‘203 patent, the ‘352 patent, the ‘800 patent, and the ‘993

patent are hereinafter referred to collectively as the “Patents-in-Suit.”
17.

As it pertains to this lawsuit, the Patents-in-Suit, very generally speaking, relate to

products used by and sold to and/or for automobiles, vehicle fleets, heavy duty trucking fleets,
and heavy equipment fleets that permit data communication associated with a vehicle to be
transmitted between the vehicle and a remote data communication terminal so that various
operating characteristics of the vehicle can be used, observed monitored, and/or controlled.
IV. PATENT INFRINGEMENT
18.

IGS is the owner of the Patents-in-Suit with the exclusive right to enforce the

Patents-in-Suit against infringers, and collect damages for all relevant times, including the right

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to prosecute this action. On January 29, 2009 IGS acquired through written assignment all right,
title, and interest to the Patents-in-Suit from Vehicle Enhancement Systems, Inc. (“VES”).
19.

Upon information and belief, Defendants manufacture, make, have made, use,

practice, import, provide, supply, distribute, sell, and/or offer for sale products and/or systems
that infringe one or more claims of the Patents-in-Suit; and/or Defendants induce and/or
contribute to the infringement of one or more of the claims in the Patents-in-Suit by others.
20.

Defendant ONSTAR infringes one or more of the Patents-in-Suit because it

manufactures, makes, has made, uses, practices, imports, provides, supplies, distributes, sells
and/or offers for sale data communication devices for at least the automobile industry that allow
for wireless communication of data associated with a vehicle between the vehicle and a remote
location. By way of example only, the OnStar Vehicle Diagnostics and in-vehicle safety and
security systems infringes one or more claims of the Patents-in-Suit.
21.

Defendant ATX infringes one or more of the Patents-in-Suit because it

manufactures, makes, has made, uses, practices, imports, provides, supplies, distributes, sells
and/or offers for sale data communication devices for at least the automobile industry that allow
for wireless communication of data associated with a vehicle between the vehicle and a remote
location. By way of example only, the ATX Safety Connect product infringes one or more of the
claims of the Patents-in-Suit.
22.

Defendant XIRGO infringes one or more of the Patents-in-Suit because it

manufactures, makes, has made, uses, practices, imports, provides, supplies, distributes, sells
and/or offers for sale data communication devices for at least the automobile industry that allow
for wireless communication of data associated with a vehicle between the vehicle and a remote

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location. By way of example only, the Xirgo XT-2000 Intelliport system infringes one or more
of the claims of the Patents-in-Suit.
23.

Defendant PROGRESSIVE infringes one or more of the Patents-in-Suit because it

manufactures, makes, has made, uses, practices, imports, provides, supplies, distributes, sells
and/or offers for sale data communication devices for at least the automobile industry that allow
for wireless communication of data associated with a vehicle between the vehicle and a remote
location. By way of example only, the Xirgo Intelliport system is used by PROGRESSIVE and
infringes one or more claims of the Patents-in-Suit.
24.

Defendant POWER SOLUTIONS / MASTERTRAK infringes one or more of the

Patents-in-Suit because it manufactures, makes, has made, uses, practices, imports, provides,
supplies, distributes, sells and/or offers for sale data communication devices for at least the
heavy duty trucking industry that allow for wireless communication of data associated with a
vehicle between the vehicle and a remote location. By way of example only, the MasterTrak
Telecommunications Unit (TCU) product infringes one or more of the claims of the Patents-inSuit.
25.

Defendant BSM infringes one or more of the Patents-in-Suit because it

manufactures, makes, has made, uses, practices, imports, provides, supplies, distributes, sells
and/or offers for sale data communication devices for at least the heavy duty trucking industry
that allow for wireless communication of data associated with a vehicle between the vehicle and
a remote location. By way of example only, the BSM Sentinel FM 2000 product infringes one or
more claims of the Patents-in-Suit.
26.

IGS and its predecessor VES have marked their products in compliance with

35 U.S.C. § 287.

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27.

IGS has been damaged as a result of Defendants’ infringing conduct. Defendants

are, thus, liable to IGS in an amount that adequately compensates IGS for Defendants’ respective
infringements, which, by law, cannot be less than a reasonable royalty, together with interest and
costs as fixed by this Court under 35 U.S.C. § 284.
V. JURY DEMAND
IGS hereby requests a trial by jury pursuant to Rule 38 of the Federal Rules of Civil
Procedure.
VI. PRAYER FOR RELIEF
IGS requests that the Court find in its favor and against Defendants, and that the Court
grant IGS the following relief:
a.

Judgment that one or more claims of the Patents-in-Suit have been infringed,
either literally and/or under the doctrine of equivalents, by one or more
Defendants and/or by others to whose infringement Defendants have contributed
and/or by others whose infringement has been induced by Defendants;

b.

Judgment that Defendants account for and pay to IGS all damages to and costs
incurred by IGS because of Defendants’ infringing activities and other conduct
complained of herein;

c.

That Defendants, their officers, agents, servants and employees, and those persons
in active concert and participation with any of them, be permanently enjoined
from infringement of the Patents in Suit. In the alternative, if the Court finds that
an injunction is not warranted, IGS requests an award of post judgment royalty to
compensate for future infringement;

e.

That IGS be granted pre-judgment and post-judgment interest on the damages
caused to it by reason of Defendants’ infringing activities and other conduct
complained of herein;

f.

That this Court declare this an exceptional case and award IGS its reasonable
attorney’s fees and costs in accordance with 35 U.S.C. § 285; and

g.

That IGS be granted such other and further relief as the Court may deem just and
proper under the circumstances.

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Dated: October 26, 2010.

Respectfully submitted,
/s/ Michael T. Cooke
State Bar No. 04759650
Jonathan T. Suder
State Bar No. 19463350
Todd I. Blumenfeld
State Bar No. 24067518
FRIEDMAN, SUDER & COOKE
Tindall Square Warehouse No. 1
604 East 4th Street, Suite 200
Fort Worth, Texas 76102
[phone]
Fax [phone]
[e-mail]
[e-mail]
[e-mail]
Keith A. Rutherford
R. Scott Reese
Sarah R. Cabello
WONG, CABELLO, LUTSCH,
RUTHERFORD & BRUCCULERI, LLP
20333 SH 249, Suite 600
Houston, TX 77070
[phone]
Fax [phone]
[e-mail]
[e-mail]
[e-mail]
Eric M. Albritton
ERIC M. ALBRITTON, P.C.
P.O. Box 2649
111 West Tyler Street
Longview, TX 75601
[phone] x204
Fax [phone]
[e-mail]

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Thomas John Ward, Jr.
WARD & SMITH LAW FIRM
P.O. Box 1231
Longview, TX 75606-1231
[phone]
Fax [phone]
[e-mail]
ATTORNEYS FOR PLAINTIFF
INNOVATIVE GLOBAL SYSTEMS, LLC

n:\clients\mj\ves\onstar-06\pleadings\complaint.doc

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