Motiva LLC v. Nintendo Co Ltd et al

Filing 1

Motiva LLC v. Nintendo Co Ltd et al

Doc. 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION MOTIVA, LLC Plaintiff, v. NINTENDO CO. LTD. and NINTENDO OF AMERICA, INC. Defendants. § § § § § § § § § §

Civil Action No. 6:08-cv-429 JURY TRIAL DEMANDED

COMPLAINT FOR PATENT INFRINGEMENT Plaintiff Motiva, LLC ("Motiva") for its Complaint against Defendants Nintendo of America, Inc. ("Nintendo America") and Nintendo Co. Ltd. ("Nintendo Japan") alleges as follows: THE PARTIES 1. Plaintiff Motiva, LLC is a limited liability company duly organized and

existing under the laws of Ohio, having its principal place of business at 8156 Campden Lakes Blvd., Dublin, Ohio, 43016. 2. On information and belief, Defendant Nintendo Japan is a Japanese

corporation with its principal place of business at 11-1 Kamitoba hokotate-cho, Minamiku, Kyoto 601-8501, Japan. 3. On information and belief, Defendant Nintendo America is a corporation

duly organized and existing under the laws of the State of Washington, having its principal place of business at 4820 150th Avenue N.E., Redmond, Washington, 98052. 4. On information and belief, Defendant Nintendo America is a wholly-

owned subsidiary of Nintendo Japan.

1
Dockets.Justia.com

JURISDICTION AND VENUE 5. This action arises under the patent laws of the United States, Title 35 of

the United States Code. This Court has jurisdiction over Plaintiff's federal law claims under 28 U.S.C. §§ 1331 and 1338(a). 6. This Court has personal jurisdiction over Defendants because they have

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 Defendants would not offend traditional notions of fair play and substantial justice. 7. Defendant Nintendo America is authorized to do business in Texas and

maintains an agent for service of process, CT Corporation System, at 350 N. St. Paul Street, Dallas, Texas, 75201. 8. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b)-(c) and

1400(b) because Defendants have committed acts within this judicial district giving rise to this action, and Defendants reside in and have and continue to conduct business in this District, including one or more acts of offering for sale, selling, using, importing and/or offering for sale infringing products or providing service and support to Defendant's customers in this District. CLAIMS INFRINGEMENT OF U.S. PATENT 7,292,151 9. Motiva re-alleges and incorporates by reference the allegations set forth in

Paragraphs 1-7 above as if fully set forth herein. 10. On November 6, 2007, United States Patent Number 7,292,151 ("the `151

patent") entitled "Human Movement Measurement System" was duly and lawfully issued by the United States Patent and Trademark Office. A true and correct copy of the `151 patent is attached hereto as Exhibit A. 11. Motiva is the owner of the `151 patent and has the right to enforce that

patent with respect to Defendants. 2

12.

Defendants have infringed and are infringing the `151 patent by making,

using, importing, offering for sale and/or selling in the United States products and/or services, including video game systems, that embody the inventions claimed in the `151 patent and, upon information and belief, by actively inducing and/or contributing to the infringement of the `151 patent by others. Defendant is liable for infringement of the `151 patent pursuant to 35 U.S.C. § 271. 13. Upon information and belief, Defendants' infringement of the `151 patent

is willful and thus entitles Motiva to increased damages under 35 U.S.C. § 284 and to attorneys' fees and costs incurred in litigating this action under 35 U.S.C. § 285. 14. Upon information and belief, Defendants will continue to directly infringe,

induce infringement and/or contribute to the infringement of the `151 patent unless enjoined by this Court. 15. Defendants' acts of infringement have damaged Motiva in an amount to Defendants'

be proven at trial, but in no event less than a reasonable royalty.

infringement of Motiva's rights under the `151 patent will continue to damage Motiva causing irreparable harm, for which there is no adequate remedy at law, unless enjoined by this Court.

PRAYER FOR RELIEF 16. Wherefore, Motiva respectfully requests that this Court enter judgment

against Nintendo America and Nintendo Japan as follows: a. For judgment that Defendants have infringed and continue to

infringe the `151 patent; b. For judgment that the acts of infringement, contributory

infringement, and inducing infringement have been and are willful; c. For preliminary and permanent injunctions under 35 U.S.C. § 283

against Defendants, their respective directors, officers, employees, agents, 3

subsidiaries, parents, attorneys and all persons acting in concert, on behalf of, in joint venture, or in partnership with Defendants enjoining any further acts of infringement; d. For an accounting of all damages caused to Motiva by Defendants'

acts of infringement; d. For damages to be paid by Defendants adequate to compensate

Motiva for Defendants' infringement, including interest, costs and disbursement as justified under 35 U.S.C. § 284; e. For judgment finding this to be an exceptional case, and awarding

Motiva attorney fees under 35 U.S.C. § 285; and f. proper. DEMAND FOR A JURY TRIAL Motiva demands a trial by jury of all issues triable by a jury. For such relief at law and in equity as the Court may deem just and

Dated: November 10, 2008 Respectfully submitted, /s/ Christopher D. Banys (by Wesley Hill) Christopher D. Banys - Lead Attorney State Bar No. 230038 (California) Daniel W. Bedell State Bar No. 254912 (California) LANIER LAW FIRM, P.C. 530 Lytton Avenue Palo Alto, CA 94301 Tel: [phone] Fax: [phone] [e-mail] [e-mail]

4

W. Mark Lanier State Bar No. 11934600 Dara G. Hegar State Bar No. 24007280 LANIER LAW FIRM, P.C. 6810 FM 1960 West Houston, Texas 77069 Tel: [phone] Fax: [phone] [e-mail] [e-mail] Wesley Hill State Bar No. 24032294 IRELAND, CARROLL & KELLEY, P.C. 6101 South Broadway, Suite 500 Tyler, TX 75703 Tel: [phone] Fax: [phone] [e-mail] ATTORNEYS FOR PLAINTIFF

5