Personal Audio, LLC v. Samsung Electronics Co., Ltd. et al
Filing
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COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 0540-3217134.), filed by Personal Audio, LLC. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13)(Goehringer, Charles)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
PERSONAL AUDIO, LLC,
Plaintiff,
v.
SAMSUNG ELECTRONICS CO., LTD.,
SAMSUNG ELECTRONICS AMERICA, INC.,
SAMSUNG TELECOMMUNICATIONS
AMERICA, LP., RESEARCH IN MOTION
LTD., RESEARCH IN MOTION CORP.,
MOTOROLA MOBILITY, INC., HIGH TECH
COMPUTER CORP., a/k/a HTC CORP., H.T.C.
(B.V.I.) CORP., HTC AMERICA INC., LG
ELECTRONICS, INC., AND LG
ELECTRONICS USA, INC.
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Case No.__________
JURY TRIAL DEMANDED
Defendants.
Complaint for Patent Infringement
Plaintiff Personal Audio, LLC (“Personal Audio”) for its cause of action against
Defendants, Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., Samsung
Telecommunications America, LP (the Samsung entities collectively “Samsung”), Research in
Motion Ltd., Research in Motion Corp. (the Research in Motion entities collectively “RIM”),
Motorola Mobility, Inc. (“Motorola”), High Tech Computer Corp a/k/a HTC Corp., H.T.C.
(B.V.I.) Corp., HTC America Inc. (the HTC entities collectively “HTC”), LG Electronics, Inc.,
and LG Electronics USA, Inc. (the LG entities collectively “LG”), states and alleges on
knowledge and information and belief as follows:
Parties
1.
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Plaintiff Personal Audio is a Texas limited liability company.
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2.
Defendant Samsung Electronics Co., Ltd. is a Korean corporation having its
principal place of business at 250 2-ga Taepyung-ro, Jung-gu, Seoul 100-742, Korea.
3.
Defendant Samsung Electronics America, Inc. is a New York corporation having
its principal place of business at 105 Challenger Road, Ridgefield Park, NJ 07660. Samsung
Electronics America, Inc. has been authorized to do business in the State of Texas by the Texas
Secretary of State. Furthermore, Samsung Electronics America, Inc. has designated CT
Corporation System, 350 N. Saint Paul Street, Suite 2900, Dallas, TX 75201, as its representative
to accept service of process within the State of Texas.
4.
Defendant Samsung Telecommunications America, L.P. is a Delaware
corporation having its principal place of business at 1301 E. Lookout Drive, Richardson, TX
75082.
5.
Defendant Research in Motion, Ltd. is a Canadian corporation, having its
principal place of business at 295 Phillip Street, Waterloo, Ontario, Canada N2L 3W8.
6.
Defendant Research in Motion Corp. is a Delaware corporation, having its
principal place of business at 122 West John Carpenter Parkway, Suite 430, Irving, Texas 75039.
Research in Motion Corp. has been authorized to do business in the State of Texas by the Texas
Secretary of State. Furthermore, Research in Motion Corp. has designated CT Corporation
System, 350 N. Saint Paul Street, Suite 2900, Dallas, TX 75201, as its representative to accept
service of process within the State of Texas.
7.
Defendant Motorola Mobility, Inc. is a Delaware corporation having its principal
place of business at 600 North U.S. Highway 45, Libertyville, Illinois 60048. Motorola Mobility,
Inc. has been authorized to do business in the State of Texas by the Texas Secretary of State.
Furthermore, Motorola Mobility, Inc. has designated CT Corporation System, 350 N. Saint Paul
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Street, Suite 2900, Dallas, TX 75201, as its representative to accept service of process within the
State of Texas.
8.
Defendant HTC Corp. is a Taiwanese corporation having its principal place of
business at 23 Xinghau Road, Taoyuan 330, Taiwan, Republic of China.
9.
Defendant HTC BVI is a British Virgin Islands corporation having its principal
place of business at 3F, Omar Hodge Building, Wickhams Cay I, P.O. Box 362, Road Town,
Tortola, British Virgin Islands.
10.
Defendant HTC America, Inc. is a Texas corporation having its principal place of
business at 13920 SE Eastgate Way, Suite 400, Bellevue, Washington 98005. HTC America, Inc.
has been authorized to do business in the State of Texas by the Texas Secretary of State.
Furthermore, HTC America, Inc. has designated National Registered Agents, Inc., 16055 Space
Center Boulevard, Suite 235, Houston, TX 77062, as its representative to accept service of
process within the State of Texas.
11.
Defendant LG Electronics, Inc. is a Korean corporation having its principal place
of business at LG Twin Towers 20, Yeouido-dong, Yeongdeunspo-gu, Seoul 150-721, Korea.
12.
Defendant LG Electronics USA, Inc. is a Delaware corporation having its
principal place of business at 1000 Sylvan Avenue, Englewood Cliffs, New Jersey 07632. LG
Electronics USA, Inc. has been authorized to do business in the State of Texas by the Texas
Secretary of State. Furthermore, LG Electronics USA, Inc. has designated United States
Corporation Co., 211 E. 7th Street, Suite 620, Austin, TX 78701, as its representative to accept
service of process within the State of Texas.
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Jurisdiction
13.
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
§§ 1331 and 1338(a), in that this action arises under the federal patent statutes, 35 U.S.C. §§ 271
and 281-285.
14.
This Court has personal jurisdiction over Samsung because it has committed acts
giving rise to this action within Texas and within this judicial district and has established
minimum contacts within the forum such that the exercise of jurisdiction over Samsung would
not offend traditional notions of fair play and substantial justice. For example, Samsung has
committed acts of infringement in this District, by among other things, offering to sell and
selling products that infringe the asserted patents, including portable music players.
15.
This Court has personal jurisdiction over RIM because it has committed acts
giving rise to this action within Texas and within this judicial district and has established
minimum contacts within the forum such that the exercise of jurisdiction over RIM would not
offend traditional notions of fair play and substantial justice. For example, RIM has committed
acts of infringement in this District, by among other things, offering to sell and selling products
that infringe the asserted patents, including portable music players.
16.
This Court has personal jurisdiction over Motorola because it has committed acts
giving rise to this action within Texas and within this judicial district and has established
minimum contacts within the forum such that the exercise of jurisdiction over Motorola would
not offend traditional notions of fair play and substantial justice. For example, Motorola has
committed acts of infringement in this District, by among other things, offering to sell and
selling products that infringe the asserted patents, including portable music players.
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17.
This Court has personal jurisdiction over HTC because it has committed acts
giving rise to this action within Texas and within this judicial district and has established
minimum contacts within the forum such that the exercise of jurisdiction over HTC would not
offend traditional notions of fair play and substantial justice. For example, HTC has committed
acts of infringement in this District, by among others things, offering to sell and selling products
that infringe the asserted patent, including portable music players.
18.
This Court has personal jurisdiction over LG because it has committed acts giving
rise to this action within Texas and within this judicial district and has established minimum
contacts within the forum such that the exercise of jurisdiction over LG would not offend
traditional notions of fair play and substantial justice. For example, LG has committed acts of
infringement in this District, by among others things, offering to sell and selling products that
infringe the asserted patent, including portable music players.
Venue
19.
Venue in the Eastern District of Texas is proper pursuant to 28 U.S.C. §§ 1391(b),
(c) and 1400(b) because the Defendants have committed acts within this judicial district giving
rise to this action, and the Defendants have and continue to conduct business in this judicial
district, including one or more acts of selling, using, importing and/or offering for sale infringing
products or providing service and support to the Defendant’s customers in this District.
20.
As stated in further detail in paragraphs 2-12, Samsung, RIM, Motorola, HTC,
and LG have been authorized to do business in the State of Texas by the Texas Secretary of State
and have each designated a registered agent to accept service of process within the State of
Texas. Samsung Electronics America, Inc. and Research in Motion Corp. house their corporate
headquarters and principal places of business in Texas.
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21.
Venue in the Eastern District of Texas is also proper because Personal Audio is
organized and governed by the limited liability company laws of Texas and is subject to taxes in
Texas. Personal Audio maintains a registered agent for service of process in Texas. Personal
Audio maintains office space in Beaumont, Texas, within this District, at 550 Fannin Street,
Suite 500. Personal Audio also maintains other contacts within this District, such as a bank
account.
22.
Venue in the Eastern District of Texas is also proper because this District is
centrally located to resolve common issues of fact among Personal Audio and the Defendants.
23.
Venue in the Eastern District of Texas is also proper because of judicial economy.
Judge Ron Clark presided over Personal Audio, LLC, v. Apple Inc. et al., Civil Action No.
9:09CV111 (”Personal Audio v. Apple I”). As part of that action the Court has construed the
claims of the asserted patent in the Memorandum Opinions and Orders dated December 21, 2010
(Dkt. No. 258), January 31, 2011 (Dkt. No. 292), and May 18, 2011 (Dkt. No. 358).
Background Allegations
24.
James Logan, the founder of Personal Audio, is a successful businessman and
entrepreneur. In 1982, Logan founded MicroTouch Systems. Under Logan’s stewardship
MicroTouch became a leading developer of touch screen technologies used in a variety of
consumer and commercial products. When Logan founded MicroTouch, the majority of touch
screens used plastic surfaces for the contact interface. MicroTouch was one of the first
companies to successfully manufacture and market touch screens with glass surfaces.
MicroTouch’s technology became the industry standard, and was widely used in retail outlets
and purchased by large companies. By the mid-1990s, MicroTouch was the world’s leading
supplier of touch screen technology.
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25.
For fourteen years, from 1982 until 1996, Logan served as MicroTouch’s chief
executive officer. MicroTouch had a single employee (Logan) when Logan started the company.
By 1996, under Logan’s leadership MicroTouch employed over 600 individuals and realized
about $95 million in sales. In 2000, 3M purchased MicroTouch for about $160 million.
26.
Logan is a prolific inventor. Logan is listed as an inventor or co-inventor on no
fewer than 32 United States patents. This lawsuit for patent infringement is about one of those
patents.
27.
In 1996, Logan resigned as chief executive officer of MicroTouch. During his
time at MicroTouch Logan had to commute to work every day. Logan became frustrated with the
lack of radio listening options available during his commute.
28.
This frustration gave Logan a new idea for presenting audio programs -- an audio
player for delivering personalized audio content based on the past listening habits or selections of
an individual user. He therefore started a new company to develop, manufacture, and sell his new
idea for an audio player.
29.
From 1996 until 1998, Logan served as the president of this new company. One of
the first employees he hired was Daniel Goessling. Goessling is a software developer who had
previously worked with Logan on developing a patented invention for pausing live television.
Goessling is listed as an inventor or co-inventor on no fewer than 12 United States patents.
30.
In the spring of 1996 Logan also contacted Charles Call for the purpose of
obtaining patent protection. Call is a patent attorney. Call has worked as a patent attorney for
over fifty years. As a patent attorney, Call has extensive experience with computers and
computer-related patents. Call has drafted over 500 United States patents. Call is also listed as an
inventor or co-inventor on no fewer than 12 United States patents.
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31.
By May of 1996, Call began drafting the application that became United States
Patent Application No. 08/724,813 (“the ’813 application”), for the purpose of obtaining patent
protection for the personal audio player invention. The ’813 application claimed, among other
inventions, an audio player capable of receiving navigable playlists.
32.
On October 2, 1996, Call filed the ’813 application with the United States Patent
& Trademark Office (“PTO”). Logan, Goessling, and Call were listed as co-inventors of the ’813
application.
33.
On March 6, 2001, the PTO issued United States Patent No. 6,199,076 entitled
“Audio Program Player Including A Dynamic Program Selection Controller” (“the ’076 patent”),
a copy of which is attached as Exhibit 1.
34.
The ’076 patent claims, among other inventions, a player that can reproduce a
selection of audio program files, and is further capable of receiving a navigable playlist. The
claimed player has the capability of using the received navigable playlist to allow a user to
navigate among the audio files identified in the playlist during playback. Ex. 1 at 46:13-51,
47:38-48:29.
35.
The ’076 patent specification describes an audio program player in a variety of
hardware configurations. These hardware configurations include “an Internet server and PC
client player architecture,” “PDAs,” a “portable computer,” or a “simplified player for mobile
use.” See Ex. 1 at 7:41-66.
36.
The ’076 patent specification describes several ways the player may receive data
from outside the player. These ways include a “a radio or infrared link,” “replaceable media,” or
“cellular radio, cable modem and or satellite links.” See Ex. 1 at 7:41-8:4.
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37.
The ’076 patent specification describes several ways the player may store data,
including data received from outside the player and audio files. These ways include “high speed
RAM storage and a persistent mass storage device” or “replaceable media, such as an optical
disk cartridge.” See Ex. 1 at 4:36-38, 7:63-66.
38.
The ’076 patent specification describes several ways that the player may
reproduce audio signals in an audible form. These ways include a “sound card,” “speakers,” and
a “headphone-out port.” See Ex. 1 at 5:22-25.
39.
The ’076 patent specification describes several types of manual controls with
which the player may accept control commands from a user. These ways include a “keyboard,” a
“touchpad,” or “a small number of buttons.” See Ex. 1 at 5:26-29, 13:49-51, 36:41-42.
40.
The ’076 patent specification describes that the player may be “advantageously
implemented by . . . a processor.” See Ex. 1 at 4:33-35.
41.
In addition to hardware components, the ’076 patent discloses the use of software
algorithms. These software algorithms include continuously playing audio files (Ex. 1 at 12:1613:11; 34:28-35:44), detecting input commands (Ex. 1 at Fig. 3, steps 261, 262, 275, and 278),
skipping forward to the next audio file in a playlist sequence (Ex. 1 at 15:21-25; 34:28-35:48),
restarting playback of the currently playing audio file (Ex. 1 at 15:49-59), and skipping backward
to the previous audio file in a sequence (Ex. 1 at 15:49-59; 34:28-35:53).
42.
The ’076 patent is a foundational patent in the portable personal audio player
industry. As evidenced by a forward reference search, attached as Exhibit 2, the ’076 patent has
been cited in no fewer than 233 issued United States patents.
43.
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Personal Audio owns and maintains all rights to enforce the ’076 patent.
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44.
On June 25, 2009, Personal Audio sued Apple Inc. in the Eastern District of
Texas for infringement of the ’076 patent. Personal Audio alleged that Apple infringed the ’076
patent by selling the iPod classic generations 1 through 6, iPod mini generations 1 and 2, iPod
nano generations 1 through 5, iPod touch generations 1 through 3, iPhone, iPhone 3G, iPhone
3GS, and iPad.
45.
The Court, the Honorable Ron Clark presiding, held a jury trial from June 23 until
July 8, 2011.
46.
During the trial Apple asserted that claims 1, 3, and 15 of the ’076 patent were
invalid as anticipated or obvious. For each asserted claim, Apple argued that it was anticipated
by the DAD486x Digital Audio Delivery System Operation Manual (“DAD Manual”) and
DAD486x Digital Audio Delivery System (“DAD System”). Apple also argued that each of the
asserted claims was rendered obvious by various combinations of the DAD Manual, DAD
System, Sound Blaster 16 User’s Guide for Windows 95, Microsoft Windows 95 Resource Kit
manual, “Architecting Personalized Delivery of Multimedia Information” by S. Loeb, Musicshop
Reference Manual, Sony Discman player and instructions, and Sony Minidisc player and
instructions.
47.
On July 8, 2011, the jury by unanimous verdict found that Apple infringed claims
1, 3, and 15 of the ’076 patent by selling the iPod classic generations 3 through 6, iPod mini
generations 1 and 2, and iPod nano generations 1 through 5 in the United States. The jury
awarded damages to Personal Audio in the amount of $8,000,000.00.
48.
The jury rejected all of Apple’s invalidity arguments and found that claims 1, 3,
and 15 of the ’076 patent are not anticipated or obvious.
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49.
On August 30, 2011, the Court ordered final judgment in favor of Personal Audio
in the amount of $8,000,000.00 in damages, $4,182,331.00 in pre-judgment interest, postjudgment interest calculated at the rate of 0.11%, and costs of court.
Count I
Infringement of the ’076 patent by Samsung
50.
Personal Audio restates and realleges each of the allegations set forth above and
incorporates them herein.
51.
Samsung manufacturers and sells handheld cellular telephones. One product that
it manufactures and sells is the Samsung Continuum smart phone.
52.
When sold the Samsung Continuum is loaded with the Android OS 2.1 éclair
operating system. Android OS 2.1 includes an application labeled “Music.” This Music
application makes the Continuum a music player capable of playing a group of audio files, such
as songs, selected by the listener. A selected group of audio files arranged in a sequence is
commonly known as a playlist.
53.
A number of components facilitate the Continuum’s capability to reproduce a
playlist of audio files. Samsung sells the Continuum with a microSD replaceable media storage
card pre-installed. See Ex. 3 at 82 (“Music Player plays songs from an installed memory card.”);
Ex. 4 (“8 GB microSD card pre-installed on-device.”). This microSD card provides the
Continuum with the capability to store one or more audio files that a user may listen to with the
Music application.
54.
Each audio file that the Continuum is capable of storing has a beginning and an
end.
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55.
The Continuum also has a USB port and a USB cable provided with it in the box
when sold. The Continuum’s user manual instructs that a consumer may transfer media content
from a separate computer to the Continuum by connecting the Continuum and the computer with
the USB cable. Ex. 3 at 102. Transferred media content may include audio files as well a playlist
file. Id. at 12. These components provide the Continuum with the capability to receive a playlist
file of audio files from outside the Continuum.
56.
The microSD replaceable media card pre-installed on the Continuum further
provides the Continuum with the capability to store the received playlist file.
57.
The Continuum with the Music application has various commands to control
playback of a playlist of audio files. These commands include playing a playlist; skip forward to
the next song in the playing playlist; go back to the beginning of the playing song; and skip back
to the previous song in the playing playlist. The Continuum has the capability to accept a control
command from a user with its touch screen. The touch screen with keys that allow the
Continuum to accept commands from a user is pictured below:
Ex. 3 at 82.
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58.
The Continuum with the Music application has the capability to play a playlist of
audio files in the order of the playlist sequence continuously and without entry of a control
command. Hardware and software components furnish the Continuum with this capability. In
particular, hardware components providing this capability include the Continuum’s general
purpose computer circuitry, audio codec, and an integrated speaker.
59.
The Continuum is a general purpose computer. The Continuum is made up of a
processor, a power supply, and random access memory. These components are connected via a
bus that transmits signals between the various components.
60.
The Continuum uses an audio codec with which to reproduce digitally
compressed audio files stored by the Continuum on its microSD card. In particular, the
application developer information for the Continuum shows that the Continuum is capable of
reproducing audio files in numerous formats. See Ex. 3 at 15 (“Music Player, supporting WAV,
MP3, AAC, AAC+, eAAC+, AMR-NB, AMR-WB, WMA (v9/10), EVRC, QCELP, MIDI, and
SP-MIDI formats.”). The Continuum necessarily includes an audio codec to decompress and
convert audio files in digitally compressed audio file formats (such as MP3) into an analog form
for listening.
61.
The Continuum has an on-board speaker that reproduces analog audio signals,
including signals derived from an audio file that is part of playlist. The Continuum user manual
identifies the speaker:
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Ex. 3 at 18.
62.
The Continuum’s Music application and Android OS 2.1 contain software
algorithms to provide it with the capability to continuously play a playlist of audio files without
input of a user commend; detect a user command to skip forward or backward in the playing
playlist sequence; respond to a command to skip forward by discontinuing playback of the
playing audio file and beginning playback of the next audio file in the playlist sequence; respond
to a command to go back to the beginning of the presently playing audio file; and respond to a
command to skip backward by discontinuing playback of the playing audio file and beginning
playback of the previous audio file in the playlist sequence.
63.
The Continuum Music application is specifically programmed with the following
software algorithm for continuous playback of a sequence of audio files, or its equivalent: (1)
starting playback of a selected audio file at the playlist sequence index corresponding to the
selected audio file; (2) when the playing audio file concludes, the index is incremented and the
audio file corresponding to the new index is played; and (3) repeating step (2) until the end of the
final audio file in the sequence is reached, at which time playback loops back to the first audio
file in the sequence.
64.
The Continuum Music application has the capability to play a playlist
continuously by using the offered “repeat all” function. The Continuum user manual shows how
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to use the “repeat all” function. See Ex. 3 at 82 (“Repeat: Touch to repeat the current song, repeat
all songs, or disable repeat mode.”)
65.
The Continuum Music application is specifically programmed with the following
software algorithm for allowing the Continuum to detect an entered command to skip forward to
the next audio file in the playing playlist of audio files, or its equivalent: (1) employing an ifthen-else-type programming construct to identify the presence of an entered control command;
and (2) if determining that there is a command then employing a branch-type programming
construct that calls an algorithm that performs the skip forward process.
66.
The Continuum Music application is specifically programmed with the following
software algorithm for skipping forward to the next audio file in the playlist sequence, or its
equivalent: (1) scanning forward in the playlist sequence to find the next audio file to play; (2)
upon finding the next audio file in the sequence setting the index value to correspond to this next
audio file; and (3) fetching and playing this next audio file.
67.
The Continuum Music application is specifically programmed with the following
software algorithm for allowing the Continuum to detect an entered command to go back to the
beginning of a playing audio file in the playlist sequence, or its equivalent: (1) employing an ifthen-else-type programming construct to identify the presence of an entered control command;
and (2) if determining that there is a command then employing a branch-type process that calls
an algorithm that performs the back process.
68.
The Continuum Music application is specifically programmed with the following
software algorithm for going back to the beginning of a playing audio file in the playlist
sequence, or its equivalent: (1) determining whether the playing audio file has played for a
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predetermined amount of time (in this case about 2,000 milliseconds), and if so resetting
playback to the beginning of the audio file; and (2) playing the audio file from its beginning.
69.
The Continuum Music application is specifically programmed with the following
software algorithm for skipping backward to the previous audio file in the playlist sequence, or
its equivalent: (1) determining whether the playing audio file has played for a predetermined
amount of time (in this case about 2,000 milliseconds), and if so resetting the resetting playback
to the beginning of the audio file and playing the audio file from its beginning; (2) if the
presently playing audio file has not played for a predetermined amount of time (about 2,000
milliseconds), scanning backward in the playlist sequence to find the previous audio file to play;
(3) upon finding the previous audio file in the sequence setting the index value to correspond to
this previous audio file; and (4) fetching and playing this previous audio file.
70.
Samsung has infringed and is infringing the ’076 patent by making, using, selling,
offering for sale, and/or importing, without authority, products and services, including at least
the Samsung Continuum, that are covered by one or more claims of the ’076 patent, literally
and/or under the doctrine of equivalents. See Exhibit 5 (preliminary exemplary evidence of
Samsung’s infringement of the ’076 patent).
71.
Samsung does not have a license or permission to use the claimed subject matter
in the ’076 patent.
72.
Personal Audio has been injured and has been caused significant financial damage
as a direct and proximate result of Samsung’s infringement of the ’076 patent.
73.
Samsung will continue to infringe the ’076 patent, and thus cause irreparable
injury and damage to Personal Audio unless enjoined by this Court.
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Count II
Infringement of the ’076 patent by RIM
74.
Personal Audio restates and realleges each of the allegations set forth above and
incorporates them herein.
75.
RIM manufacturers and sells handheld cellular telephones. One product that it
manufactures and sells is the BlackBerry Tour 9630 smart phone.
76.
When sold the BlackBerry Tour is loaded with a RIM-proprietary operating
system that includes a media player. The media player application makes the BlackBerry Tour a
music player capable of playing a group of audio files, such as songs, selected by the listener. A
selected group of audio files arranged in a sequence is commonly known as a playlist.
77.
A number of components facilitate the BlackBerry Tour’s capability to reproduce
a playlist of audio files. RIM sells the BlackBerry Tour with a microSD replaceable media
storage card in the box. This microSD card provides the BlackBerry Tour with the capability to
store one or more audio files that a user may listen to with the media player application.
78.
Each audio file that the BlackBerry Tour is capable of storing has a beginning and
79.
The BlackBerry Tour also has a USB port and a USB cable provided with it in the
an end.
box when sold. The BlackBerry Tour’s user manual instructs that a consumer may transfer media
content from a separate computer to the BlackBerry Tour by connecting the BlackBerry Tour
and the computer with the USB cable. Ex. 6 at 121 (“Using BlackBerry® Media Sync, you can
synchronize specific iTunes playlists and Windows Media® Player playlists to your BlackBerry
device or a random selection of your songs that are not in a playlist. 1. Connect your device to
your computer. 2. On your computer, open the BlackBerry® Desktop Manager. 3. Click the
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Media icon. 4. In the BlackBerry Media Sync section, click the Launch tab. 5. If necessary, in
the drop-down list, select your music application. 6. Perform one of the following actions: • To
synchronize specific playlists, select the check box beside one or more playlists….• To
synchronize specific playlists as well as a random selection of your songs, select the check box
beside one or more playlists. … 7. Click Sync Music. 8. Click OK. 9. Disconnect your device
from your computer.”) Transferred media content may include audio files as well a playlist file.
Id. These components provide the BlackBerry Tour with the capability to receive a playlist file
of audio files from outside the BlackBerry Tour.
80.
The microSD replaceable media card sold with the BlackBerry Tour further
provides the BlackBerry Tour with the capability to store the received playlist file.
81.
The BlackBerry Tour media player has various commands to control playback of
a playlist of audio files. These commands include playing a playlist; skip forward to the next
song in the playing playlist; go back to the beginning of the playing song; and skip back to the
previous song in the playing playlist. The BlackBerry Tour has the capability to accept a control
command from a user with a touch screen. Ex. 6 at 103 (“Play the next or previous song …
When playing a song, click the next or previous icon.”)
82.
The BlackBerry Tour media player application has the capability to play a playlist
of audio files in the order of the playlist sequence continuously and without entry of a control
command. Hardware and software components furnish the BlackBerry Tour with this capability.
In particular, hardware components providing this capability include the BlackBerry Tour’s
general purpose computer circuitry, audio codec, and an integrated speaker.
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83.
The BlackBerry Tour is a general purpose computer. The BlackBerry Tour is
made up of a processor, a power supply, and random access memory. These components are
connected via a bus that transmits signals between the various components.
84.
The BlackBerry Tour uses an audio codec with which to reproduce digitally
compressed audio files stored by the BlackBerry Tour on its microSD card. In particular,
BlackBerry Tour user guide shows that the BlackBerry Tour is capable of reproducing audio
files in numerous formats. See Ex. 6 at 120-21. The BlackBerry Tour necessarily includes an
audio codec to decompress and convert audio files in digitally compressed audio file formats
(such as MP3) into an analog form for listening.
85.
The BlackBerry Tour has an on-board speaker that reproduces analog audio
signals, including signals derived from an audio file that is part of playlist.
86.
The BlackBerry Tour’s media player contains software algorithms to provide it
with the capability to continuously play a playlist of audio files without input of a user
commend; detect a user command to skip forward or backward in the playing playlist sequence;
respond to a command to skip forward by discontinuing playback of the playing audio file and
beginning playback of the next audio file in the playlist sequence; respond to a command to go
back to the beginning of the presently playing audio file; and respond to a command to skip
backward by discontinuing playback of the playing audio file and beginning playback of the
previous audio file in the playlist sequence.
87.
RIM has infringed and is infringing the ’076 patent by making, using, selling,
offering for sale, and/or importing, without authority, products and services, including at least
the BlackBerry Tour, that are covered by one or more claims of the ’076 patent, literally and/or
82407829.5
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under the doctrine of equivalents. See Exhibit 7 (preliminary exemplary evidence of RIM’s
infringement of the ’076 patent).
88.
RIM does not have a license or permission to use the claimed subject matter in the
‘076 patent.
89.
Personal Audio has been injured and has been caused significant financial damage
as a direct and proximate result of RIM’s infringement of the ’076 patent.
90.
RIM will continue to infringe the ’076 patent, and thus cause irreparable injury
and damage to Personal Audio unless enjoined by this Court.
Count III
Infringement of the ’076 patent by Motorola
91.
Personal Audio restates and realleges each of the allegations set forth above and
incorporates them herein.
92.
Motorola manufacturers and sells handheld cellular telephones. One product that
it manufactures and sells is the Motorola Droid 2 Global smart phone.
93.
When sold the Motorola Droid 2 Global is loaded with the Android OS 2.2 Froyo
operating system. Android OS 2.2 includes an application labeled “Music.” This Music
application makes the Droid 2 Global a music player capable of playing a group of audio files,
such as songs, selected by the listener. A selected group of audio files arranged in a sequence is
commonly known as a playlist.
94.
A number of components facilitate the Droid 2 Global’s capability to reproduce a
playlist of audio files. Motorola sells the Droid 2 Global with a microSD replaceable media
storage card pre-installed. See Ex. 8 at 34 (“SD memory card (8 GB—included with your
82407829.5
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phone).”). This microSD card provides the Droid 2 Global with the capability to store one or
more audio files that a user may listen to with the Music application. See id.
95.
Each audio file that the Droid 2 Global is capable of storing has a beginning and
96.
The Droid 2 Global also has a USB port and a USB cable provided with it in the
an end.
box when sold. The Droid 2 Global’s user manual instructs that a consumer may transfer media
content from a separate computer to the Droid 2 Global by connecting the Droid 2 Global and
the computer with the USB cable. Ex. 8 at 51. Transferred media content may include audio files
as well a playlist file. These components provide the Droid 2 Global with the capability to
receive a playlist file of audio files from outside the Droid 2 Global.
97.
The microSD replaceable media card pre-installed on the Droid 2 Global further
provides the Droid 2 Global with the capability to store the received playlist file.
98.
The Droid 2 Global with the Music application has various commands to control
playback of a playlist of audio files. These commands include playing a playlist; skip forward to
the next song in the playing playlist; go back to the beginning of the playing song; and skip back
to the previous song in the playing playlist. The Continuum has the capability to accept a control
command from a user with its touch screen. The touch screen with keys that allow the
Continuum to accept commands from a user is pictured below:
82407829.5
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Ex. 8 at 33.
99.
The Droid 2 Global with the Music application has the capability to play a playlist
of audio files in the order of the playlist sequence continuously and without entry of a control
command. Hardware and software components furnish the Droid 2 Global with this capability. In
particular, hardware components providing this capability include the Continuum’s general
purpose computer circuitry, audio codec, and an integrated speaker.
100.
The Droid 2 Global is a general purpose computer. The Droid 2 Global is made
up of a processor, a power supply, and random access memory. These components are connected
via a bus that transmits signals between the various components.
101.
The Droid 2 Global uses an audio codec with which to reproduce digitally
compressed audio files stored by the Droid 2 Global on its microSD card. In particular, the
application developer information for the Continuum shows that the Continuum is capable of
reproducing audio files in numerous formats. See Ex. 8 at 34 (“Your phone can play many types
of files: AAC, AMR, MP3, WAV, WmA, ACC+ and MIDI.”). The Droid 2 Global necessarily
82407829.5
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includes an audio codec to decompress and convert audio files in digitally compressed audio file
formats (such as MP3) into an analog form for listening.
102.
The Droid 2 Global has an on-board speaker that reproduces analog audio signals,
including signals derived from an audio file that is part of playlist.
103.
The Droid 2 Global Music application and Android OS 2.2 contain software
algorithms to provide it with the capability to continuously play a playlist of audio files without
input of a user commend; detect a user command to skip forward or backward in the playing
playlist sequence; respond to a command to skip forward by discontinuing playback of the
playing audio file and beginning playback of the next audio file in the playlist sequence; respond
to a command to go back to the beginning of the presently playing audio file; and respond to a
command to skip backward by discontinuing playback of the playing audio file and beginning
playback of the previous audio file in the playlist sequence.
104.
The Droid 2 Global Music application is specifically programmed with the
following software algorithm for continuous playback of a sequence of audio files, or its
equivalent: (1) starting playback of a selected audio file at the playlist sequence index
corresponding to the selected audio file; (2) when the playing audio file concludes, the index is
incremented and the audio file corresponding to the new index is played; and (3) repeating step
(2) until the end of the final audio file in the sequence is reached, at which time playback loops
back to the first audio file in the sequence.
105.
The Droid 2 Global Music application has the capability to play a playlist
continuously by using the offered “repeat all” function. The Droid 2 Global user manual shows
how to use the “repeat all” function. See Ex. 8 at 35.
82407829.5
23
106.
The Droid 2 Global Music application is specifically programmed with the
following software algorithm for allowing the Droid 2 Global to detect an entered command to
skip forward to the next audio file in the playing playlist of audio files, or its equivalent: (1)
employing an if-then-else-type programming construct to identify the presence of an entered
control command; and (2) if determining that there is a command then employing a branch-type
programming process that calls an algorithm that performs the skip forward process.
107.
The Droid 2 Global Music application is specifically programmed with the
following software algorithm for skipping forward to the next audio file in the playlist sequence,
or its equivalent: (1) scanning forward in the playlist sequence to find the next audio file to play;
(2) upon finding the next audio file in the sequence setting the index value to correspond to this
next audio file; and (3) fetching and playing this next audio file.
108.
The Droid 2 Global Music application is specifically programmed with the
following software algorithm for allowing the Droid 2 Global to detect an entered command to
go back to the beginning of a playing audio file in the playlist sequence, or its equivalent: (1)
employing an if-then-else-type programming construct to identify the presence of an entered
control command; and (2) if determining that there is a command then employing a branch-type
process that calls an algorithm that performs the back process.
109.
The Droid 2 Global Music application is specifically programmed with the
following software algorithm for going back to the beginning of a playing audio file in the
playlist sequence, or its equivalent: (1) determining whether the playing audio file has played for
a predetermined amount of time (in this case about 2,000 milliseconds), and if so resetting
playback to the beginning of the audio file; and (2) playing the audio file from its beginning.
82407829.5
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110.
The Droid 2 Global Music application is specifically programmed with the
following software algorithm for skipping backward to the previous audio file in the playlist
sequence, or its equivalent: (1) determining whether the playing audio file has played for a
predetermined amount of time (in this case about 2,000 milliseconds), and if so resetting the
resetting playback to the beginning of the audio file and playing the audio file from its
beginning; (2) if the presently playing audio file has not played for a predetermined amount of
time (about 2,000 milliseconds), scanning backward in the playlist sequence to find the previous
audio file to play; (3) upon finding the previous audio file in the sequence setting the index value
to correspond to this previous audio file; and (4) fetching and playing this previous audio file.
111.
Motorola has infringed and is infringing the ’076 patent by making, using, selling,
offering for sale, and/or importing, without authority, products and services, including at least
the Motorola Droid 2 Global, that are covered by one or more claims of the ’076 patent, literally
and/or under the doctrine of equivalents. See Exhibit 9 (preliminary exemplary evidence of
Motorola’s infringement of the ’076 patent).
112.
Motorola does not have a license or permission to use the claimed subject matter
in the ’076 patent.
113.
Motorola’s infringement of the ’076 patent has been and is willful.
114.
The ’076 patent was cited on the face of U.S. Patent 6,934,751 that issued on
August 23, 2005, and is titled “Method and device for providing more accurate subscriber device
billing.” Motorola, Inc., the first assignee, assigned the patent to Motorola Mobility, Inc. on July
31, 2010.
115.
Before and at the time Motorola, Inc. assigned the ’751 patent to Motorola
Mobility, Inc, Motorola Mobility, Inc. was a wholly owned subsidiary of Motorola, Inc.
82407829.5
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116.
During prosecution of the application that issued as the ’751 patent the examiner
rejected some of the application’s claims under 35 U.S.C. § 103(a) as being obvious in view of
the ’076 patent combined with the knowledge of one of ordinary skill in the art.
117.
Motorola’s knowledge of the ’076 patent is evidenced at least by its citation to the
’076 patent in its issued patent and discussion of the patent during prosecution of the application
that issued as the ’751 patent.
118.
Motorola disregarded an objectively high likelihood that the making, using,
selling, and offering to sell the Droid 2 Global infringed the ’076 patent.
119.
Personal Audio has been injured and has been caused significant financial damage
as a direct and proximate result of Motorola’s infringement of the ’076 patent.
120.
Motorola will continue to infringe the ’076 patent, and thus cause irreparable
injury and damage to Personal Audio unless enjoined by this Court.
Count IV
Infringement of the ’076 patent by HTC
121.
Personal Audio restates and realleges each of the allegations set forth above and
incorporates them herein
122.
HTC manufacturers and sells handheld cellular telephones. One product that it
manufactures and sells is the HTC Droid Incredible 2 smart phone.
123.
When sold the HTC Droid Incredible 2 is loaded with the Android OS 2.2
operating system. Android OS 2.2 includes an application labeled “Music.” This Music
application makes the Incredible 2 a music player capable of playing a group of audio files, such
as songs, selected by the listener. A selected group of audio files arranged in a sequence is
commonly known as a playlist.
82407829.5
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124.
A number of components facilitate the Incredible 2’s capability to reproduce a
playlist of audio files. HTC sells the Incredible 2 with a microSD replaceable media storage card
pre-installed. See Ex. 10 at 12 (“You will find the following inside the box: … microSD™ Card
Preinstalled.”). This microSD card provides the Incredible 2 with the capability to store one or
more audio files that a user may listen to with the Music application.
125.
Each audio file that the Incredible 2 is capable of storing has a beginning and an
126.
The Incredible 2 also has a USB port and a USB cable provided with it in the box
end.
when sold. The Incredible 2’s user manual instructs that a consumer may transfer media content
from a separate computer to the Incredible 2 by connecting the Incredible 2 and the computer
with the USB cable. Ex. 10 at 118, 120. Transferred media content may include audio files as
well a playlist file. Id. at 120. These components provide the Incredible 2 with the capability to
receive a playlist file of audio files from outside the Incredible 2.
127.
The microSD replaceable media card pre-installed on the Incredible 2 further
provides the Incredible 2 with the capability to store the received playlist file.
128.
The Incredible 2 with the Music application has various commands to control
playback of playlist of audio files. These commands include playing a playlist; skip forward to
the next song in the playing playlist; go back to the beginning of the playing song; and skip back
to the previous song in the playing playlist. The Incredible 2 has the capability to accept a control
command from a user with its touch screen. The touch screen with keys that allow the Incredible
2 to accept commands from a user is pictured below:
82407829.5
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Ex. 10 at 236.
129.
The Incredible 2 with the Music application has the capability to play a playlist of
audio files in the order of the playlist sequence continuously and without entry of a control
command. Hardware and software components furnish the Incredible 2 with this capability. In
particular, hardware components providing this capability include the Incredible 2’s general
purpose computer circuitry, audio codec, and an integrated speaker.
130.
The Incredible 2 is a general purpose computer. The Incredible 2 is made up of a
processor, a power supply, and random access memory. These components are connected via a
bus that transmits signals between the various components.
131.
The Incredible 2 uses an audio codec with which to reproduce digitally
compressed audio files stored by the Incredible 2 on its microSD card. In particular, the
application developer information for the Incredible 2 shows that the Incredible 2 is capable of
reproducing audio files in numerous formats. See Ex. 10 at 120 (“You can sync audio files in
these formats: *.aac, *.amr, *.m4a, *.mid, *.midi, *.mp3, *.ogg, *.wav, and *.wma.”). The
82407829.5
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Incredible 2 necessarily includes an audio codec to decompress and convert audio files in
digitally compressed audio file formats (such as MP3) into an analog form for listening.
132.
The Incredible 2 has an on-board speaker that reproduces analog audio signals,
including signals derived from an audio file that is part of playlist. The Incredible 2 user manual
identifies the speaker:
Ex. 10 at 14.
133.
The Incredible 2’s Music application and Android OS 2.2 contain software
algorithms to provide it with the capability to continuously play a playlist of audio files without
input of a user commend; detect a user command to skip forward or backward in the playing
playlist sequence; respond to a command to skip forward by discontinuing playback of the
playing audio file and beginning playback of the next audio file in the playlist sequence; respond
to a command to go back to the beginning of the presently playing audio file; and respond to a
command to skip backward by discontinuing playback of the playing audio file and beginning
playback of the previous audio file in the playlist sequence.
134.
The Incredible 2 Music application is specifically programmed with the following
software algorithm for continuous playback of a sequence of audio files, or its equivalent: (1)
starting playback of a selected audio file at the playlist sequence index corresponding to the
82407829.5
29
selected audio file; (2) when the playing audio file concludes, the index is incremented and the
audio file corresponding to the new index is played; and (3) repeating step (2) until the end of the
final audio file in the sequence is reached, at which time playback loops back to the first audio
file in the sequence.
135.
The Incredible 2 Music application has the capability to play a playlist
continuously by using the offered “repeat all” function. The Incredible 2 user manual shows how
to use the “repeat all” function. See Ex. 10 at 236-237.
136.
The Incredible 2 Music application is specifically programmed with the following
software also contains an algorithm for allowing the Incredible 2 to detect an entered command
to skip forward to the next audio file in the playing playlist of audio files, or its equivalent: (1)
employing an if-then-else-type programming construct to identify the presence of an entered
control command; and (2) if determining that there is a command then employing a branch-type
programming construct that calls an algorithm that performs the skip forward process.
137.
The Incredible 2 Music application is specifically programmed with the following
software algorithm for skipping forward to the next audio file in the playlist sequence, or its
equivalent: (1) scanning forward in the playlist sequence to find the next audio file to play; (2)
upon finding the next audio file in the sequence setting the index value to correspond to this next
audio file; and (3) fetching and playing this next audio file.
138.
The Incredible 2 Music application is specifically programmed with the following
software algorithm for allowing the Incredible 2 to detect an entered command to go back to the
beginning of a playing audio file in the playlist sequence, or its equivalent: (1) employing an ifthen-else-type programming construct to identify the presence of an entered control command;
82407829.5
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and (2) if determining that there is a command then employing a branch-type process that calls
an algorithm that performs the back process.
139.
The Incredible 2 Music application is specifically programmed with the following
software algorithm for going back to the beginning of a playing audio file in the playlist
sequence, or its equivalent: (1) determining whether the playing audio file has played for a
predetermined amount of time (in this case about 2,000 milliseconds), and if so resetting
playback to the beginning of the audio file; and (2) playing the audio file from its beginning.
140.
The Incredible 2’s Music application is specifically programmed with the
following software algorithm for skipping backward to the previous audio file in the playlist
sequence, or its equivalent: (1) determining whether the playing audio file has played for a
predetermined amount of time (in this case about 2,000 milliseconds), and if so resetting the
resetting playback to the beginning of the audio file and playing the audio file from its
beginning; (2) if the presently playing audio file has not played for a predetermined amount of
time (about 2,000 milliseconds), scanning backward in the playlist sequence to find the previous
audio file to play; (3) upon finding the previous audio file in the sequence setting the index value
to correspond to this previous audio file; and (4) fetching and playing this previous audio file.
141.
HTC has infringed and is infringing the ’076 patent by making, using, selling,
offering for sale, and/or importing, without authority, products and services, including at least
the HTC Droid Incredible 2, that are covered by one or more claims of the ’076 patent, literally
and/or under the doctrine of equivalents. See Exhibit 11 (preliminary exemplary evidence of
HTC’s infringement of the ’076 patent).
142.
HTC does not have a license or permission to use the claimed subject matter in
the ’076 patent.
82407829.5
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143.
Personal Audio has been injured and has bee caused significant financial damage
as a direct and proximate result of HTC’s infringement of the ’076 patent.
144.
HTC will continue to infringe the ’076 patent, and thus cause irreparable injury
and damage to Personal Audio unless enjoined by this Court.
Count V
Infringement of the ’076 patent by LG
145.
Personal Audio restates and realleges each of the allegations set forth above and
incorporates them herein
146.
LG manufacturers and sells handheld cellular telephones. One product that it
manufactures and sells is the LG Revolution smart phone.
147.
When sold the LG Revolution is loaded with the Android OS 2.2 operating
system. Android OS 2.2 includes an application labeled “Music.” This Music application makes
the Revolution a music player capable of playing a group of audio files, such as songs, selected
by the listener. A selected group of audio files arranged in a sequence is commonly known as a
playlist.
148.
A number of components facilitate the Revolution’s capability to reproduce a
playlist of audio files. LG sells the Revolution with a microSD replaceable media storage card
pre-installed. See Ex. 12 (“microSD™ Memory Slot: 16 GB card included”). This microSD card
provides the Revolution with the capability to store one or more audio files that a user may listen
to with the Music application.
149.
Each audio file that the Revolution is capable of storing has a beginning and an
end.
82407829.5
32
150.
The Revolution also has a USB port and a USB cable provided with it in the box
when sold. The Revolution’s user manual instructs that a consumer may transfer media content
from a separate computer to the Revolution by connecting the Revolution and the computer with
the USB cable. Ex. 12 at 149. Transferred media content may include audio files as well a
playlist file. These components provide the Revolution with the capability to receive a playlist
file of audio files from outside the Revolution.
151.
The microSD replaceable media card pre-installed on the Revolution further
provides the Revolution with the capability to store the received playlist file.
152.
The Revolution with the Music application has various commands to control
playback of playlist of audio files. These commands include playing a playlist; skip forward to
the next song in the playing playlist; go back to the beginning of the playing song; and skip back
to the previous song in the playing playlist. The Revolution has the capability to accept a control
command from a user with its touch screen. The touch screen with keys that allow the
Revolution to accept commands from a user is pictured below:
Ex. 12 at 152.
153.
The Revolution with the Music application has the capability to play a playlist of
audio files in the order of the playlist sequence continuously and without entry of a control
82407829.5
33
command. Hardware and software components furnish the Revolution with this capability. In
particular, hardware components providing this capability include the Revolution’s general
purpose computer circuitry, audio codec, and an integrated speaker.
154.
The Revolution is a general purpose computer. The Revolution is made up of a
processor, a power supply, and random access memory. These components are connected via a
bus that transmits signals between the various components.
155.
The Revolution uses an audio codec with which to reproduce digitally
compressed audio files stored by the Revolution on its microSD card. In particular, the
application developer information for the Revolution shows that the Revolution is capable of
reproducing audio files in numerous formats. See Ex. 12 at 149 (“The Music application supports
audio files in numerous formats, including MP3, M4A (DRM-free AAC files, from iTunes®),
AMR, MIDI, and OGG Vorbis.”). The Revolution necessarily includes an audio codec to
decompress and convert audio files in digitally compressed audio file formats (such as MP3) into
an analog form for listening.
156.
The Revolution has an on-board speaker that reproduces analog audio signals,
including signals derived from an audio file that is part of playlist. Ex. 12 at 151 (“You can listen
to music using the phone’s built-in speak …”)
157.
The Revolution Music application and Android OS 2.2 contain software
algorithms to provide it with the capability to continuously play a playlist of audio files without
input of a user commend; detect a user command to skip forward or backward in the playing
playlist sequence; respond to a command to skip forward by discontinuing playback of the
playing audio file and beginning playback of the next audio file in the playlist sequence; respond
to a command to go back to the beginning of the presently playing audio file; and respond to a
82407829.5
34
command to skip backward by discontinuing playback of the playing audio file and beginning
playback of the previous audio file in the playlist sequence.
158.
The Revolution Music application is specifically programmed with the following
software algorithm for continuous playback of a sequence of audio files, or its equivalent: (1)
starting playback of a selected audio file at the playlist sequence index corresponding to the
selected audio file; (2) when the playing audio file concludes, the index is incremented and the
audio file corresponding to the new index is played; and (3) repeating step (2) until the end of the
final audio file in the sequence is reached, at which time playback loops back to the first audio
file in the sequence.
159.
The Revolution Music application has the capability to play a playlist
continuously by using the offered “repeat all” function. The Revolution user manual shows how
to use the “repeat all” function. See Ex. 12 at 152 (“Touch to set repeat mode to repeating all
songs, repeat current song, or repeat off.”)
160.
The Revolution Music application is specifically programmed with the following
software algorithm for allowing the Revolution to detect an entered command to skip forward to
the next audio file in the playing playlist of audio files, or its equivalent: (1) employing an ifthen-else-type programming construct to identify the presence of an entered control command;
and (2) if determining that there is a command then employing a branch-type programming
construct that calls an algorithm that performs the skip forward process.
161.
The Revolution’s Music application is specifically programmed with the
following software algorithm for skipping forward to the next audio file in the playlist sequence,
or its equivalent: (1) scanning forward in the playlist sequence to find the next audio file to play;
82407829.5
35
(2) upon finding the next audio file in the sequence setting the index value to correspond to this
next audio file; and (3) fetching and playing this next audio file.
162.
The Revolution’s Music application is specifically programmed with the
following software algorithm for allowing the Revolution to detect an entered command to go
back to the beginning of a playing audio file in the playlist sequence, or its equivalent: (1)
employing an if-then-else-type programming construct to identify the presence of an entered
control command; and (2) if determining that there is a command then employing a branch-type
process that calls an algorithm that performs the back process.
163.
The Revolution’s Music application is specifically programmed with the
following software algorithm for going back to the beginning of a playing audio file in the
playlist sequence, or its equivalent: (1) determining whether the playing audio file has played for
a predetermined amount of time (in this case about 2,000 milliseconds), and if so resetting
playback to the beginning of the audio file; and (2) playing the audio file from its beginning.
164.
The Revolution’s Music application is specifically programmed with the
following software algorithm for skipping backward to the previous audio file in the playlist
sequence, or its equivalent: (1) determining whether the playing audio file has played for a
predetermined amount of time (in this case about 2,000 milliseconds), and if so resetting the
resetting playback to the beginning of the audio file and playing the audio file from its
beginning; (2) if the presently playing audio file has not played for a predetermined amount of
time (about 2,000 milliseconds), scanning backward in the playlist sequence to find the previous
audio file to play; (3) upon finding the previous audio file in the sequence setting the index value
to correspond to this previous audio file; and (4) fetching and playing this previous audio file.
82407829.5
36
165.
LG has infringed and is infringing the ’076 patent by making, using, selling,
offering for sale, and/or importing, without authority, products and services, including at least
the LG Revolution, that are covered by one or more claims of the ’076 patent, literally and/or
under the doctrine of equivalents. See Exhibit 13 (preliminary exemplary evidence of LG’s
infringement of the ’076 patent).
166.
LG does not have a license or permission to use the claimed subject matter in the
’076 patent.
167.
Personal Audio has been injured and has been caused significant financial damage
as a direct and proximate result of LG’s infringement of the ’076 patent.
168.
LG will continue to infringe the ’076 patent, and thus cause irreparable injury and
damage to Personal Audio unless enjoined by this Court.
Prayer for Relief
WHEREFORE, Plaintiff Personal Audio prays for the following relief:
1.
A declaration that the Defendants have infringed the ’076 patent, and are liable to
Personal Audio for infringement;
2.
An award of damages adequate to compensate Personal Audio for Defendants’
infringement of the ’076 patent;
3.
A post-judgment equitable accounting of damages for the period of infringement
of the ’076 patent established by Personal Audio at trial;
4.
An order enjoining the Defendants from infringing the ’076 patent;
5.
If a permanent injunction is not granted, a judicial determination of the conditions
for future infringement such as a royalty bearing compulsory license or such other relief as the
Court deems appropriate;
82407829.5
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6.
A finding that this case is exceptional pursuant to 35 U.S.C. § 285;
7.
An award of prejudgment interest, costs and disbursements, and attorney fees; and
8.
Such other and further relief as the Court deems Personal Audio may be entitled
to in law and equity.
DEMAND FOR TRIAL BY JURY
Personal Audio demands a jury trial on all issues so triable, pursuant to Rule 38 of the
Federal Rules of Civil Procedure.
Dated: September 9, 2011
Respectfully submitted,
By:
/s/ Charles W. Goehringer Jr.
Robins, Kaplan, Miller & Ciresi L.L.P.
Ronald J. Schutz (MN Bar No. 130849)
(Eastern District of Texas Member)
(Lead Counsel)
Jake M. Holdreith (MN Bar No. 211011)
(Eastern District of Texas Member)
Cyrus A. Morton (MN Bar No. 287325)
(Eastern District of Texas Member)
David A. Prange (MN Bar No. 329976)
(Eastern District of Texas Member)
Patrick M. Arenz (MN Bar No. 0386537)
(Eastern District of Texas Member)
Daniel R. Burgess (MN Bar No. 0389976)
(Eastern District of Texas Member)
800 LaSalle Avenue, Suite 2800
Minneapolis, Minnesota 55402
Telephone: (612) 349-8500
Facsimile: (612) 339-4181
E-mail: RJSchutz@rkmc.com
JMHoldreith@rkmc.com
CAMorton@rkmc.com
DAPrange@rkmc.com
PMArenz@rkmc.com
DRBurgess@rkmc.com
Annie Huang
(MN Bar No. 0327979)
(Eastern District of Texas Member)
601 Lexington Avenue, Suite 3400
82407829.5
38
New York, NY 10022
Telephone: (212) 980-7400
Facsimile: (212) 339-4181
E-mail:
AHuang@rkmc.com
Germer Gertz, L.L.P.
Lawrence Louis Germer
(TX Bar # 07824000)
Charles W. Goehringer, Jr.
(TX Bar # 00793817)
550 Fannin, Suite 400
P.O. Box 4915
Beaumont, Texas 77701
Telephone: (409) 654-6700
Telecopier: (409) 835-2115
E-Mail: llgermer@germer.com
cwgoehringer@germer.com
Attorneys for Plaintiff Personal Audio, LLC
82407829.5
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