NovelPoint Tracking LLC v. Apple Inc

Filing 1

COMPLAINT against Apple Inc ( Filing fee $ 350 receipt number 0540-3868986.), filed by NovelPoint Tracking LLC. (Attachments: # 1 Civil Cover Sheet, # 2 Appendix)(Upshaw, Everett)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

NOVELPOINT TRACKING LLC
Plaintiff,

Case No. 2:12-cv-713

v.

PATENT CASE

APPLE INC.

JURY TRIAL DEMANDED
Defendant.

COMPLAINT
NovelPoint Tracking LLC files this Complaint against Apple Inc. for infringement of
United States Patent No. 6,442,485.
THE PARTIES
1.

Plaintiff NovelPoint Tracking LLC (“NPT”) is a Texas limited liability company

with its principal place of business at 1300 Ballantrae Dr., Allen TX, 75013 in the Eastern
District of Texas.
2.

Defendant Apple Inc. (“Defendant”) is a California Corporation with its principal

place of business at 1 Infinite Loop, Cupertino, CA 95014. Clicking on the “Apple Retail Store”
link on Defendant’s home page directs inquiries made by persons such as NPT (with a zip code
of 75013) to its North Texas locations, listing first a store in the Eastern District of Texas.
NATURE OF THE ACTION
3.

This is a civil action for infringement of United States Patent No. 6,442,485 (the

“Patent-in-Suit”), arising under the Patent Laws of the United States, 35 U.S.C. § 1 et seq.

JURISDICTION AND VENUE
4.

This Court has jurisdiction over the subject matter of this action pursuant to

28 U.S.C. §§ 1331 (Federal Question) and 1338(a) (Patents).
5.

Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b) and 1400(b)

because Defendant has committed acts of infringement in this district and is deemed to reside in
this district for purposes of this action.
6.

This Court has personal jurisdiction over Defendant and venue is proper in this

district because Defendant has committed, and continues to commit, acts of infringement in the
State of Texas, including in this district and/or has engaged in continuous and systematic
activities in the State of Texas, including in this district.
THE PATENT-IN-SUIT
7.

The Patent-in-Suit, entitled “Method and Apparatus for an Automatic Vehicle

Location, Collision Notification, and Synthetic Voice,” was duly and legally issued by the
United States Patent and Trademark Office on August 27, 2002. A copy of the Patent-in-Suit is
attached hereto as Exhibit A.
8.

NPT is the exclusive owner of all rights, title, and interest in the Patent-in-Suit,

including the right to exclude others and to enforce, sue and recover damages for past and future
infringement thereof.
INFRINGEMENT OF THE PATENT-IN-SUIT
9.

NPT incorporates paragraphs 1 through 8 by reference as if fully stated herein.

10.

The Patent-in-Suit is valid and enforceable.

11.

Defendant has directly infringed, and continues to directly infringe, one or more

claims of the Patent-in-Suit under 35 U.S.C. § 271(a), either literally and/or under the doctrine of

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equivalents, by making, using, selling, offering for sale, and/or importing products and/or
methods encompassed by those claims.
12.

Third parties, including Defendant’s affiliates, agents, and customers, have

infringed, and continue to infringe, one or more claims of the Patent-in-Suit under 35 U.S.C. §
271(a), either literally and/or under the doctrine of equivalents, by using, selling, and/or offering
for sale in the United States, and/or importing into the United States, products supplied by
Defendant.
13.

Upon information and belief, based on the information presently available to

NPT, absent discovery, and in the alternative to direct infringement, NPT contends that
Defendant has induced infringement, and continues to induce infringement, of one or more
claims of the Patent-in-Suit under 35 U.S.C. § 271(b). Defendant has actively, knowingly, and
intentionally induced, and continues to actively, knowingly, and intentionally induce,
infringement of the Patent-in-Suit by making, using, importing, and selling or otherwise
supplying products to third parties, including at a minimum its affiliates, agents, and customers,
with the knowledge and intent that such third parties will use, sell, offer for sale, and/or import,
products supplied by Defendant to infringe the Patent-in-Suit; and with the knowledge and intent
to encourage and facilitate the infringement through the dissemination of the products and/or the
creation and dissemination of promotional and marketing materials, supporting materials,
instructions, product manuals, and/or technical information related to such products.
14.

Upon information and belief, based on the information presently available to

NPT, absent discovery, and in the alternative to direct infringement, NPT contends that
Defendant has contributed, and continues to contribute, to the infringement by third parties
(including its affiliates, agents, and customers) of one or more claims of the Patent-in-Suit under

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35 U.S.C. § 271(c) by selling, offering for sale, and/or importing Defendant’s products, knowing
that those products constitute a material part of the inventions of the Patent-in-Suit, knowing that
those products are especially made or adapted to infringe the Patent-in-Suit, and knowing that
those products are not staple articles of commerce suitable for substantial noninfringing use.
15.

Defendant’s iPhone 4S is an example of an infringing product and/or method.

16.

NPT put Defendant on notice of the Patent-in-Suit and Defendant’s infringement

thereof at least as early as the date of filing of this complaint.
17.

NPT has been and continues to be damaged by Defendant’s infringement of the

Patent-in-Suit.
18.

Defendant’s actions complained of herein are causing irreparable harm and

damages to NPT and will continue to do so unless and until Defendant is enjoined and restrained
by the Court.
19.

Defendant’s conduct in infringing the Patent-in-Suit renders this case exceptional

within the meaning of 35 U.S.C. § 285.
JURY DEMAND
20.

Plaintiff NPT hereby demands a trial by jury on all issues so triable.
PRAYER FOR RELIEF

WHEREFORE, NPT prays for judgment as follows:
A.

That Defendant has infringed one or more claims of the patent-in-suit;

B.

That Defendant account for and pay all damages necessary to adequately

compensate NPT for infringement of the patent-in-suit, such damages to be determined by a jury,
and that such damages be trebled and awarded to NPT with pre-judgment and post-judgment
interest;

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C.

That Defendant and its officers, directors, agents, servants, affiliates, employees,

divisions, branches, subsidiaries, parents, and all others acting in concert or actively participating
with them, be permanently enjoined from directly or indirectly infringing the patent-in-suit; or,
in the alternative, judgment that Defendant account for and pay to NPT an ongoing postjudgment royalty reflecting Defendant’s deliberate continuing infringement;
D.

That this case be declared an exceptional case within the meaning of 35 U.S.C.

§ 285 and that NPT be awarded the attorney fees, costs, and expenses that it incurs prosecuting
this action; and
E.

That NPT be awarded such other and further relief as this Court deems just and

proper.

DATED: November 12, 2012

Respectfully submitted,

__/s/ Everett Upshaw____________________
Everett Upshaw
LAW OFFICE OF EVERETT UPSHAW, PLLC
13901 Midway Rd. Suite 102-208
Dallas TX 75244
P: 214.680.6005
[e-mail]
ATTORNEY FOR PLAINTIFF

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