VirnetX Inc. v. Apple Inc.
Filing
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COMPLAINT against Apple Inc. ( Filing fee $ 350 receipt number 0540-3299070.), filed by VirnetX Inc.. (Attachments: # 1 Civil Cover Sheet)(Cawley, Douglas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
VirnetX Inc.,
Plaintiff,
vs.
Apple Inc.,
Defendant.
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Civil Action No. 6:11-cv-563
PLAINTIFF VIRNETX INC.’S ORIGINAL COMPLAINT
Plaintiff VirnetX Inc. (“VirnetX”) files this Complaint against Defendant Apple Inc. for
patent infringement under 35 U.S.C. § 271 and in support thereof would respectfully show the
Court the following:
THE PARTIES
1.
Plaintiff VirnetX is a corporation organized and existing under the laws of the
State of Delaware, and maintains its principal place of business at 308 Dorla Court, Suite 206,
Zephyr Cove, Nevada 89448.
2.
Defendant Apple Inc. (“Apple” or “Defendant”) is a California corporation with
its principal place of business at 1 Infinite Loop, Cupertino, California 95014. On information
and belief, Apple regularly conducts and transacts business in Texas, throughout the United
States, and within the Eastern District of Texas, and as set forth below, has committed and
continues to commit, tortious acts of patent infringement within and outside of Texas and within
the Eastern District of Texas.
JURISDICTION AND VENUE
3.
This is an action for patent infringement arising under the patent laws of the
United States, Title 35, United States Code. This Court has exclusive subject matter jurisdiction
over this case for patent infringement under 28 U.S.C. § 1338.
4.
Venue is proper in the Eastern District of Texas under 28 U.S.C. §§ 1391 and
1400(b).
5.
This Court has personal jurisdiction over Defendant. Defendant has conducted
and does conduct business within the State of Texas. Defendant, directly or through subsidiaries
or intermediaries (including distributors, retailers, and others), ships, distributes, offers for sale,
sells, and advertises (including the provision of an interactive web page) its products and/or
services in the United States, the State of Texas, and the Eastern District of Texas. Defendant,
directly and through subsidiaries or intermediaries (including distributors, retailers, and others),
has purposefully and voluntarily placed one or more of its infringing products and/or services, as
described below, into the stream of commerce with the expectation that they will be purchased
and used by consumers in the Eastern District of Texas. These infringing products and/or
services have been and continue to be purchased and used by consumers in the Eastern District
of Texas. Defendant has committed acts of patent infringement within the State of Texas and,
more particularly, within the Eastern District of Texas.
ASSERTED PATENT
6.
On November 1, 2011, United States Patent No. 8,051,181 (“the ‘181 patent”)
entitled “Method for Establishing Secure Communication Link Between Computers of Virtual
Private Network,” was duly and legally issued with Victor Larson, Robert Durham Short, III,
Edmund Colby Munger, and Michael Williamson as the named inventors after full and fair
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examination. VirnetX is the owner of all rights, title, and interest in and to the ’181 patent and
possesses all rights of recovery under the ’181 patent.
COUNT ONE
PATENT INFRINGEMENT BY APPLE
7.
VirnetX incorporates by reference paragraphs 1-6 as if fully set forth herein. As
described below, Apple has infringed and/or continues to infringe the ’181 patent.
8.
At least Apple’s iPhone 4, iPhone 4S, iPod Touch, iPad 2, and Macintosh
computers with the “Lion” operating system directly or indirectly infringe at least claims 1, 2, 412, 17, 19, 21, 22, 24-29 of the ’181 patent. Apple makes, uses, sells, offers to sell, and imports
these products and thus directly infringes the ‘181 patent.
9.
Apple indirectly infringes the ’181 patent by contributing to infringement by
others, such as resellers and end-user customers, in accordance with 35 U.S.C. § 271(c), because
Apple offers to sell or sells within the United States a component of a patented machine,
manufacture, combination, or composition, or a material or apparatus for use in practicing a
patented process, constituting a material part of the invention, knowing the same to be especially
made or especially adapted for use in an infringement of such patent, and not a staple article or
commodity of commerce suitable for substantial non-infringing use.
10.
Apple indirectly infringes by inducing infringement by others, such as resellers
and end-user customers, in accordance with 35 U.S.C. § 271(b), because Apple actively induces
infringement of the ’181 patent by others, such as resellers and end-user customers.
11.
Apple has infringed and/or continues to infringe one or more claims of the ’181
patent as set forth above. Apple is liable for direct infringement, as well as indirect infringement
by way of inducement and/or contributory infringement, for the ’181 patent pursuant to 35
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U.S.C. § 271 (a), (b), (c), and/or (f) as set forth above. For VirnetX’s claims of indirect
infringement, Apple’s resellers, consultants, and/or end-user customers are direct infringers of
the ’181 patent.
12.
Apple’s acts of infringement have caused damage to VirnetX. VirnetX is entitled
to recover from Apple the damages sustained by VirnetX as a result of Apple’s wrongful acts in
an amount subject to proof at trial. In addition, the infringing acts and practices of Apple have
caused, are causing, and, unless such acts and practices are enjoined by the Court, will continue
to cause immediate and irreparable harm to VirnetX for which there is no adequate remedy at
law, and for which VirnetX is entitled to injunctive relief under 35 U.S.C. § 283.
13.
Apple has received actual notice of infringement by virtue of the filing of this
lawsuit.
DEMAND FOR JURY TRIAL
VirnetX hereby demands a jury for all issues so triable.
PRAYER FOR RELIEF
WHEREFORE, VirnetX prays for the following relief:
1.
A judgment that Apple has directly infringed the ’181 patent, contributorily
infringed the ’181 patent, and/or induced the infringement of the ’181 patent;
2.
A preliminary and permanent injunction preventing Apple and its respective
officers, directors, agents, servants, employees, attorneys, licensees, successors, and assigns, and
those in active concert or participation with any of them, from directly infringing, contributorily
infringing, and/or inducing the infringement of the ’181 patent;
3.
This case be found an exceptional case, entitling VirnetX to attorneys’ fees
incurred in prosecuting this action;
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4.
A judgment and order requiring Defendant to pay VirnetX damages under 35
U.S.C. § 284, including supplemental damages for any continuing post-verdict infringement up
until entry of the final judgment, with an accounting, as needed, and treble damages for willful
infringement as provided by 35 U.S.C. § 284;
5.
A judgment and order requiring Defendant to pay VirnetX the costs of this action
(including all disbursements);
6.
A judgment and order requiring Defendant to pay VirnetX pre-judgment and post-
judgment interest on the damages awarded;
7.
A judgment and order requiring that in the event a permanent injunction
preventing future acts of infringement is not granted, that VirnetX be awarded a compulsory
ongoing licensing fee; and
8.
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Such other and further relief as the Court may deem just and proper.
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DATED: November 1, 2011
Respectfully submitted,
McKOOL SMITH, P.C.
/s/ Douglas A. Cawley
Douglas A. Cawley, Lead Attorney
Texas State Bar No. 04035500
E-mail: dcawley@mckoolsmith.com
Luke F. McLeroy
Texas State Bar No. 24041455
E-mail: lmcleroy@mckoolsmith.com
Bradley W. Caldwell
Texas State Bar No. 24040630
E-mail: bcaldwell@mckoolsmith.com
Jason D. Cassady
Texas State Bar No. 24045625
E-mail: jcassady@mckoolsmith.com
MCKOOL SMITH P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: (214) 978-4000
Telecopier: (214) 978-4044
Sam F. Baxter
Texas State Bar No. 01938000
E-mail: sbaxter@mckoolsmith.com
MCKOOL SMITH P.C.
104 East Houston, Suite 300
Marshall, Texas 75670
Telephone: (903) 923-9000
Telecopier: (903) 923-9099
Robert M. Parker
Texas State Bar No. 15498000
rmparker@pbatyler.com
Robert Christopher Bunt
Texas State Bar No. 00787165
rcbunt@pbatyler.com
PARKER, BUNT & AINSWORTH, P.C.
100 East Ferguson, Suite 1114
Tyler, Texas 75702
Telephone: (903) 531-3535
Telecopier: (903) 533-9687
ATTORNEYS FOR PLAINTIFF VIRNETX INC.
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