Blue Spike, LLC v. Google Inc.

Filing 1

COMPLAINT against Google Inc. ( Filing fee $ 350 receipt number 0540-3741801.), filed by Blue Spike, LLC. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A - Patent 8214175, # 3 Exhibit B - Patent 7949494, # 4 Exhibit C - Patent 7660700, # 5 Exhibit D - Patent 7346472)(Albritton, Eric)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
BLUE SPIKE, LLC,
Plaintiff,
v.
GOOGLE INC.,
Defendant.

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Civil Action No. 6:12-CV-558
JURY TRIAL DEMANDED

ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
Plaintiff Blue Spike, LLC files this complaint against Defendant Google Inc. and alleges
infringement of U.S. Patent Nos. 7,346,472 (the ’472 Patent), 7,660,700 (the ’700 Patent),
7,949,494 (the ’494 Patent), and 8,214,175 (the ’175 Patent, and together with the ’472, ’700,
and ’494 Patents, the Patents-in-Suit) as follows:
NATURE OF THE SUIT
1.

This is a claim for patent infringement arising under the patent laws of the United States,

Title 35 of the United States Code.
PARTIES
2.

Plaintiff Blue Spike, LLC is a Texas limited liability company and has its headquarters

and principal place of business at 1820 Shiloh Road, Suite 1201-C, Tyler, Texas 75703. Blue
Spike, LLC is the assignee of the Patents-in-Suit from Blue Spike, Inc. (a Florida corporation),
which was the assignee of the Patents-in-Suit from Scott Moskowitz and Michael Berry. Blue
Spike, LLC and Blue Spike, Inc. are collectively referred to as “Blue Spike.” Blue Spike CEO
Scott Moskowitz is an inventor on more than 66 U.S. Patents related to managing, monitoring,
and monetizing digital content and informational assets. Blue Spike has practiced and has
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continued business plans to practice Moskowitz’s patented inventions. Many of Blue Spike’s
patents are foundational to today’s robust markets for content, which grew into their present form
only after using Blue Spike’s technology to catalogue, manage, monitor, and monetize that
content.
3.

On information and belief, Google Inc. (“Google” or “Defendant”) is a Delaware

corporation having its principal place of business at 600 Amphitheatre Parkway, Mountain View,
California 94043. Google Inc. is registered to do business in Texas and has appointed
Corporation Service Company d/b/a CSC Lawyers Incorporating Service Company, 211 E. 7th
Street, Suite 620, Austin, Texas 78701-3218, as its agent for service of process. Defendant does
business in the State of Texas and in the Eastern District of Texas.
JURISDICTION AND VENUE
4.

This lawsuit is a civil action for patent infringement arising under the patent laws of the

United States, 35 U.S.C. §101 et seq. The Court has subject-matter jurisdiction pursuant to 28
U.S.C. §§1331, 1332, 1338(a), and 1367.
5.

The Court has personal jurisdiction over Defendant for at least five reasons:

(1) Defendant has designated an agent for service of process in the State of Texas; (2) Defendant
has committed acts of patent infringement and contributed to and induced acts of patent
infringement by others in this District and elsewhere in Texas; (3) Defendant regularly does
business or solicits business in the District and in Texas; (4) Defendant engages in other
persistent courses of conduct and derives substantial revenue from products and/or services
provided to individuals in the District and in Texas; and (5) Defendant has purposefully
established substantial, systematic, and continuous contacts with the District and should

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reasonably expect to be haled into court here. Thus, the Court’s exercise of jurisdiction over
Defendant will not offend traditional notions of fair play and substantial justice.
6.

Venue is proper in this judicial district under 28 U.S.C. §§1391(b)–(c) and 1400(b)

because Defendant does business in the State of Texas, Defendant has committed acts of
infringement in Texas and in the District, a substantial part of the events or omissions giving rise
to Blue Spike’s claims happened in the District, and Defendant is subject to personal jurisdiction
in the District.
FACTUAL BACKGROUND
A.

Moskowitz’s History

7.

The owners of art, music, films, and other creations who want to sell and license their

work in digital form over the Internet need an efficient way to manage, monitor, and monetize it.
Blue Spike founder Scott Moskowitz pioneered—and continues to invent—technology that
makes such management possible, and which has parlayed with equal importance into other
industries.
8.

Moskowitz, who earned two degrees cum laude from the Wharton School of Finance and

Commerce at the University of Pennsylvania, is an inventor of more than 66 U.S. Patents,
including each of the Patents-in-Suit.
9.

In 1992, Moskowitz entered the entertainment industry by doing agency work in Japan

for a large U.S. wholesaler of music-related products.
10.

In 1993, Moskowitz filed his first U.S. digital-content-management patent application.

That year, he also founded the software start-up The Dice Company, which would become
widely recognized as a leader in digital watermarking. Since that first patent, Moskowitz has

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continued to create patented inventions in the field of information management and security at a
prodigious pace. His goal from the outset has been to commercialize his patented inventions.
11.

Moskowitz founded Blue Spike, Inc. in November 1997. Just over two years later, he

filed his first patent application related to signal recognition technology, which issued as the ’472
Patent. In describing this pioneering technology, Moskowitz coined the term “signal abstracting,”
which enhanced the ability to catalogue, archive, identify, authorize, transact, and monitor the
use and/or application of signals, such as images (for example, photographs, paintings, and
scanned fingerprints), audio (for example, songs, jingles, commercials, movies soundtracks, and
their versions), video (for example, videos, television shows, commercials, and movies), and
multimedia works. This revolutionary technology greatly improves the efficiency and speed of
monitoring, analyzing, and identifying signals as perceived, as well as enabling the optimal
compression of the signals and their associated signal abstracts for memory accommodation.
12.

Moskowitz’s status as a pioneer in this new field between cryptography and signal

analysis is evident from the United States Patent and Trademark Office’s categorization of his
patent applications. The USPTO was initially puzzled about how to classify his early inventions,
as the then-existing patent categories in cryptography and signal analysis were, by themselves,
inadequate. The USPTO therefore created a new classification for his groundbreaking
inventions: classification 713, subclass 176, called “Authentication by digital signature
representation or digital watermark.”
13.

The National Security Agency (NSA) even took interest in his work after he filed one of

his early patent applications. The NSA made the application classified under a “secrecy order”
while it investigated his pioneering innovations and their impact on national security.

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14.

As an industry trailblazer, Moskowitz has been an active author and public figure on

digital-watermarking and signal-recognition technologies since their emergence. A 1995 New
York Times article—titled “TECHNOLOGY: DIGITAL COMMERCE; 2 plans for watermarks,
which can bind proof of authorship to electronic works”—recognized Moskowitz’s The Dice
Company as one of two leading software start-ups in this newly created field. Forbes also
interviewed Moskowitz as an expert for “Cops Versus Robbers in Cyberspace,” a September 9,
1996 article about the emergence of digital watermarking and rights-management technology. He
has also testified before the Library of Congress regarding the Digital Millennium Copyright Act.
15.

He has spoken to the RSA Data Security Conference, the International Financial

Cryptography Association, Digital Distribution of the Music Industry, and many other
organizations about the business opportunities that digital watermarking creates. Moskowitz also
authored So This Is Convergence?, the first book of its kind about secure digital-content
management. This book has been downloaded over a million times online and has sold thousands
of copies in Japan, where Shogakukan published it under the name Denshi Skashi, literally
“electronic watermark.” Moskowitz was asked to author the introduction to Multimedia Security
Technologies for Digital Rights Management, a 2006 book explaining digital-rights management.
Moskowitz authored a paper for the 2002 International Symposium on Information Technology,
titled “What is Acceptable Quality in the Application of Digital Watermarking: Trade-offs of
Security, Robustness and Quality.” He also wrote an invited 2003 article titled “Bandwidth as
Currency” for the IEEE Journal, among other publications.
16.

Moskowitz is a senior member of the Institute of Electrical and Electronics Engineers

(IEEE), a member of the Association for Computing Machinery, and the International Society for

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Optics and Photonics (SPIE). As a senior member of the IEEE, Moskowitz has peer-reviewed
numerous conference papers and has submitted his own publications.
17.

Moskowitz has been at the forefront of industry-based tests—such as the MUSE

Embedded Signaling Tests, Secure Digital Music Initiative (“SDMI”), and various tests by
performance-rights organizations including ASCAP and BMI, as well as Japan’s Nomura
Research Institute.
18.

Moskowitz has negotiated projects to incorporate his technologies with leaders in a

gamut of industries. For example, Moskowitz worked with EMI, Warner Brothers, and Universal
Music Group on music-release tracking systems; with AIG on insurance and financial services;
with IBM on watermarking its software and managing movie scripts; and with Juniper Networks
on measuring and provisioning the bandwidth used on its routers. Blue Spike is also registered
with the Federal Government’s Central Contractor Registry (managed under the System for
Award Management, “SAM”) and participated in the Department of Defense Small Business
Innovative Research (SBIR) program.
19.

Moskowitz and his companies have always practiced or had business plans to practice his

patented inventions. He has worked extensively to ensure that his technology’s powerful and
patented Giovanni® suite of media security technologies can be licensed to all. Before the
industry understood where digital management of content was heading, Moskowitz believed that
copyright management was an invaluable element for dramatically expanding the business of
music, emphasizing that security must not be shrouded in secrecy and that his patented
techniques were the strongest to do so.
20.

Moskowitz and Blue Spike continued to produce new versions of its popular digital-

watermarking tools. Under Moskowitz’s control, Blue Spike also developed its unique

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Scrambling technologies, which continue to gain currency. Moskowitz and Blue Spike rolled out
its “end-to-end” solution for music security. Music encoded with Blue Spike’s watermark had
both security and CD-quality sound, even when integrated with text, image, and video content.
To this day, Moskowitz and Blue Spike are working with artists to help them manage and secure
their valuable artistic contributions from its office in Tyler, Texas.
B.

Patents-in-Suit

21.

As content becomes increasingly profitable and prevalent in the U.S. and around the

globe, pirates will continue to proliferate and use increasingly sophisticated technologies to steal
and illegally copy others’ work, especially those works that are digitally formatted or stored. The
Patents-in-Suit comprise, in part, what Moskowitz has coined “signal abstracting,” which
encompasses techniques, among others, also known as “signal fingerprinting,” “acoustic
fingerprinting,” or “robust hash functions.” These are among the most effective techniques
available for combating piracy, which are completely undetectable to the thief, yet still enable
content owners to easily search through large amounts of data to identify unauthorized copies of
their works.
22.

Broadly speaking, “signal abstracting” identifies digital information and material—

including video, audio, graphics, multimedia, and text—based solely on the perceptual
characteristics of the material itself. If desired, however, the abstract need not be static, and
other information or heuristics can be used to augment the perceptual characteristics, resulting in
a more robust abstract. In contrast, other technologies (such as digital watermarking) embed
additional information or messages into the original source material to enable traceability of the
subsequently watermarked content, much like an audit trail or the serial number on a dollar bill.
When a pirate attempts to remove embedded information or messages, ideally the quality of the

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content may be degraded, making the tampered copies unusable or of such poor quality that they
have little commercial value. Signal abstracting avoids watermarking’s vulnerabilities by leaving
the source signal unchanged and catalogues the signal’s identifying features or perceptual
characteristics in a database.
23.

Content owners can also then monitor and analyze distribution channels, such as the

Internet, radio broadcasts, television broadcasts, and other media sources, to determine whether
any content from those sources has the same abstract as their catalogued works. Unauthorized
versions of copies of content may then be successfully identified. With the unauthorized copies
identified, the content owner can then restrict access, compel payment for authorized use, and
develop better intelligence about content markets and those consumers with a willingness to pay.
In some cases, new versions of the content can be observed and analyzed, creating more robust
abstracts or new abstracts entirely, informing owners and content aggregators about new
channels or new opportunities for consumption of their content.
24.

Similarly, content recognition applications running on mobile devices, smartphones, and

tablets can use abstracts to identify content for users who would like to know what it is they are
listening to (such as applications that just identify content) or would like to know more about that
content (such as applications that are now popularly known as “second screen applications,”
which allow a television audience to identify and interact with the content they are consuming,
whether it be, for example, TV shows, movies, music, or video games). Once identified by an
abstract, songwriters, for example, can be given lyrics, or budding video producers can be
provided related versions or background on a video identified. Thus, value add in markets can be
adjusted to meet the specific needs and consumption patterns of users.

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25.

This idea of “signal abstracting” applies equally to biometric identification and today’s

security systems, such as fingerprint, facial, and optic systems that analyze, catalogue, monitor,
and identify a person’s biometric features. Once an image is created from the features of these
biometric identifiers, signal abstracting can be used to optimally compress the signal and its
associated abstract, resulting in less memory usage and increased accuracy and speed of signal
analysis and identification. Further, signal abstracts of the biometric information can be secured
independently; this means that authentication and verification of the identifying abstract do not
compromise the original information. This separation of the abstracts from the original source
material enables more secure environments, such as those dealing with the security of a person’s
biometrics. Thus, fingerprint scanners are made more secure, as are systems requiring physical
scans of a person’s body. The recent evolution to smaller and cheaper processors and memory
storage has led to the proliferation of these biometric-identification systems, which rely on the
inventions of the Patents-in-Suit to be implemented.
26.

The four Patents-in-Suit are prime examples of Moskowitz’s pioneering contributions to

signal recognition technology.
C.

The Accused Products and Services

27.

Defendant designs and develops software, applications, websites, systems, and

technology so users can find, store, share, manage, and monetize content. Defendant makes,
uses, offers for sale and/or imports into the U.S. products, systems and/or services including, but
not limited to, its YouTube, Content ID, Video Identification (“Video ID”), Google Play, and
Google Music software, applications, websites, systems, and technology (“Accused Products”),
which infringe one or more claims of the Patents-in-Suit. Defendant is extremely successful,

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with predictions that it could generate more than $3.6 billion in 2012 from the Accused Products
alone.
28.

Defendant has not sought or obtained a license for any of Blue Spike’s patented

technologies.
29.

Yet Defendant is using methods, devices, and systems taught by Blue Spike’s Patents-in-

Suit.
30.

Ironically, although Defendant does not have permission to use Blue Spike’s Patents-in-

Suit, it is using those very same technologies to prevent and track piracy committed by others.
Furthermore, without the use of Blue Spike’s patented technology, Defendant faces lawsuits
seeking billions of dollars from content owners claiming copyright infringement alleging that
Defendant has done too little to prevent the uploading of copyrighted content.
COUNT 1:
INFRINGEMENT OF U.S. PATENT NO. 8,214,175
31.

Blue Spike incorporates by reference the allegations in paragraphs 1 through 30 of this

complaint.
32.

Blue Spike, LLC is assignee of the ’175 Patent, titled “Method and Device for

Monitoring and Analyzing Signals,” and has ownership of all substantial rights in the ’175
Patent, including the rights to grant sublicenses, to exclude others from using it, and to sue and
obtain damages and other relief for past and future acts of patent infringement.
33.

The ’175 Patent is valid, is enforceable, and was duly and legally issued on July 3, 2012.

A true and correct copy of the ’175 Patent is attached as Exhibit A.
34.

Without a license or permission from Blue Spike, Defendant has infringed and continues

to infringe on one or more claims of the ’175 Patent—directly, contributorily, or by
inducement—by importing, making, using, offering for sale, or selling products and devices that

10

embody the patented invention, including, without limitation, one or more of the Accused
Products, in violation of 35 U.S.C. §271.
35.

Defendant has been and now is indirectly infringing by way of inducing infringement by

others and/or contributing to the infringement by others of the ’175 Patent in the State of Texas,
in this judicial district, and elsewhere in the United States, by, among other things, making,
using, importing, offering for sale, and/or selling, without license or authority, products for use in
systems that fall within the scope of one or more claims of the ’175 Patent. Such products
include, without limitation, one or more of the Accused Products. Such products have no
substantial non-infringing uses and are for use in systems that infringe the ’175 Patent. By
making, using, importing offering for sale, and/or selling such products, Defendant injured Blue
Spike and is thus liable to Blue Spike for infringement of the ’175 Patent under 35 U.S.C. § 271.
Those whom Defendant induces to infringe and/or to whose infringement Defendant contributes
are the end users of the Accused Products. Defendant had knowledge of the ’175 Patent at least
as early as the service of this complaint and is thus liable for infringement of one or more claims
of the ’175 Patent by actively inducing infringement and/or is liable as contributory infringer of
one or more claims of the ’175 Patent under 35 U.S.C. §271.
36.

Defendant’s acts of infringement of the ’175 Patent have caused damage to Blue Spike,

and Blue Spike is entitled to recover from Defendant the damages sustained as a result of
Defendant’s wrongful acts in an amount subject to proof at trial pursuant to 35 U.S.C. §271.
Defendant’s infringement of Blue Spike’s exclusive rights under the ’175 Patent will continue to
damage Blue Spike, causing it irreparable harm, for which there is no adequate remedy at law,
warranting an injunction from the Court.

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37.

On information and belief, Defendant has continued to infringe the ’175 Patent since

receiving notice of their infringement, at least by way of their receiving notice of this lawsuit. On
information and belief, such continued infringement has been objectively reckless including
because Defendant has (1) acted despite an objectively high likelihood that its actions constituted
infringement of a valid patent and (2) knew or should have known of that objectively high risk.
Accordingly, Blue Spike seeks a willfulness finding against Defendant relative to its
infringement of the ’175 Patent entitling Blue Spike to increased damages under 35 U.S.C. §284
as well as attorneys’ fees and costs under 35 U.S.C. §285.
38.

On information and belief, Defendant has at least had constructive notice of the ’175

Patent by operation of law.
COUNT 2:
INFRINGEMENT OF U.S. PATENT NO. 7,949,494
39.

Blue Spike incorporates by reference the allegations in paragraphs 1 through 38 of this

complaint.
40.

Blue Spike, LLC is assignee of the ’494 Patent, titled “Method and Device for

Monitoring and Analyzing Signals,” and has ownership of all substantial rights in the ’494
Patent, including the rights to grant sublicenses, to exclude others from using it, and to sue and
obtain damages and other relief for past and future acts of patent infringement.
41.

The ’494 Patent is valid, is enforceable, and was duly and legally issued on May 24,

2011. A true and correct copy of the ’494 Patent is attached as Exhibit B.
42.

Without a license or permission from Blue Spike, Defendant has infringed and continues

to infringe on one or more claims of the ’494 Patent—directly, contributorily, or by
inducement—by importing, making, using, offering for sale, or selling products and devices that

12

embody the patented invention, including, without limitation, one or more of the Accused
Products, in violation of 35 U.S.C. §271.
43.

Defendant has been and now is indirectly infringing by way of inducing infringement by

others and/or contributing to the infringement by others of the ’494 Patent in the State of Texas,
in this judicial district, and elsewhere in the United States, by, among other things, making,
using, importing, offering for sale, and/or selling, without license or authority, products for use in
systems that fall within the scope of one or more claims of the ’494 Patent. Such products
include, without limitation, one or more of the Accused Products. Such products have no
substantial non-infringing uses and are for use in systems that infringe the ’494 Patent. By
making, using, importing offering for sale, and/or selling such products, Defendant injured Blue
Spike and is thus liable to Blue Spike for infringement of the ’494 Patent under 35 U.S.C. §271.
Those whom Defendant induces to infringe and/or to whose infringement Defendant contributes
are the end users of the Accused Products. Defendant had knowledge of the ’494 Patent at least
as early as the service of this complaint and is thus liable for infringement of one or more claims
of the ’494 Patent by actively inducing infringement and/or is liable as contributory infringer of
one or more claims of the ’494 Patent under 35 U.S.C. § 271.
44.

Defendant’s acts of infringement of the ’494 Patent have caused damage to Blue Spike,

and Blue Spike is entitled to recover from Defendant the damages sustained as a result of
Defendant’s wrongful acts in an amount subject to proof at trial pursuant to 35 U.S.C. §271.
Defendant’s infringement of Blue Spike’s exclusive rights under the ’494 Patent will continue to
damage Blue Spike, causing it irreparable harm, for which there is no adequate remedy at law,
warranting an injunction from the Court.

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45.

On information and belief, Defendant has continued to infringe the ’494 Patent since

receiving notice of their infringement, at least by way of their receiving notice of this lawsuit. On
information and belief, such continued infringement has been objectively reckless including
because Defendant has (1) acted despite an objectively high likelihood that its actions constituted
infringement of a valid patent and (2) knew or should have known of that objectively high risk.
Accordingly, Blue Spike seeks a willfulness finding against Defendant relative to its
infringement of the ’494 Patent entitling Blue Spike to increased damages under 35 U.S.C. §284
as well as attorneys’ fees and costs under 35 U.S.C. §285.
46.

On information and belief, Defendant has at least had constructive notice of the ’494

Patent by operation of law.
COUNT 3:
INFRINGEMENT OF U.S. PATENT NO. 7,660,700
47.

Blue Spike incorporates by reference the allegations in paragraphs 1 through 46 of this

complaint.
48.

Blue Spike, LLC is assignee of the ’700 Patent, titled “Method and Device for

Monitoring and Analyzing Signals,” and has ownership of all substantial rights in the ’700
Patent, including the rights to grant sublicenses, to exclude others from using it, and to sue and
obtain damages and other relief for past and future acts of patent infringement.
49.

The ’700 Patent is valid, is enforceable, and was duly and legally issued on February 9,

2010. A true and correct copy of the ’700 Patent is attached as Exhibit C.
50.

Without a license or permission from Blue Spike, Defendant has infringed and continues

to infringe on one or more claims of the ’700 Patent—directly, contributorily, or by
inducement—by importing, making, using, offering for sale, or selling products and devices that

14

embody the patented invention, including, without limitation, one or more of the Accused
Products, in violation of 35 U.S.C. §271.
51.

Defendant has been and now is indirectly infringing by way of inducing infringement by

others and/or contributing to the infringement by others of the ’700 Patent in the State of Texas,
in this judicial district, and elsewhere in the United States, by, among other things, making,
using, importing, offering for sale, and/or selling, without license or authority, products for use in
systems that fall within the scope of one or more claims of the ’700 Patent. Such products
include, without limitation, one or more of the Accused Products. Such products have no
substantial non-infringing uses and are for use in systems that infringe the ’700 Patent. By
making, using, importing offering for sale, and/or selling such products, Defendant injured Blue
Spike and is thus liable to Blue Spike for infringement of the ’700 Patent under 35 U.S.C. §271.
Those whom Defendant induces to infringe and/or to whose infringement Defendant contributes
are the end users of the Accused Products. Defendant had knowledge of the ’700 Patent at least
as early as the service of this complaint and is thus liable for infringement of one or more claims
of the ’700 Patent by actively inducing infringement and/or is liable as contributory infringer of
one or more claims of the ’700 Patent under 35 U.S.C. §271.
52.

Defendant’s acts of infringement of the ’700 Patent have caused damage to Blue Spike,

and Blue Spike is entitled to recover from Defendant the damages sustained as a result of
Defendant’s wrongful acts in an amount subject to proof at trial pursuant to 35 U.S.C. §271.
Defendant’s infringement of Blue Spike’s exclusive rights under the ’700 Patent will continue to
damage Blue Spike, causing it irreparable harm, for which there is no adequate remedy at law,
warranting an injunction from the Court.

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53.

On information and belief, Defendant has continued to infringe the ’700 Patent since

receiving notice of their infringement, at least by way of their receiving notice of this lawsuit. On
information and belief, such continued infringement has been objectively reckless including
because Defendant has (1) acted despite an objectively high likelihood that its actions constituted
infringement of a valid patent and (2) knew or should have known of that objectively high risk.
Accordingly, Blue Spike seeks a willfulness finding against Defendant relative to its
infringement of the ’700 Patent entitling Blue Spike to increased damages under 35 U.S.C. §284
as well as attorneys’ fees and costs under 35 U.S.C. §285.
54.

On information and belief, Defendant has at least had constructive notice of the ’700

Patent by operation of law.
COUNT 4:
INFRINGEMENT OF U.S. PATENT NO. 7,346,472
55.

Blue Spike incorporates by reference the allegations in paragraphs 1 through 54 of this

complaint.
56.

Blue Spike, LLC is assignee of the ’472 Patent, titled “Method and Device for

Monitoring and Analyzing Signals,” and has ownership of all substantial rights in the ’472
Patent, including the rights to grant sublicenses, to exclude others from using it, and to sue and
obtain damages and other relief for past and future acts of patent infringement.
57.

The ’472 Patent is valid, is enforceable, and was duly and legally issued on March 18,

2008. A true and correct copy of the ’472 Patent is attached as Exhibit D.
58.

Without a license or permission from Blue Spike, Defendant has infringed and continues

to infringe on one or more claims of the ’472 Patent—directly, contributorily, or by
inducement—by importing, making, using, offering for sale, or selling products and devices that

16

embody the patented invention, including, without limitation, one or more of the Accused
Products, in violation of 35 U.S.C. §271.
59.

Defendant has been and now is indirectly infringing by way of inducing infringement by

others and/or contributing to the infringement by others of the ’472 Patent in the State of Texas,
in this judicial district, and elsewhere in the United States, by, among other things, making,
using, importing, offering for sale, and/or selling, without license or authority, products for use in
systems that fall within the scope of one or more claims of the ’472 Patent. Such products
include, without limitation, one or more of the Accused Products. Such products have no
substantial non-infringing uses and are for use in systems that infringe the ’472 Patent. By
making, using, importing offering for sale, and/or selling such products, Defendant injured Blue
Spike and is thus liable to Blue Spike for infringement of the ’472 Patent under 35 U.S.C. §271.
Those whom Defendant induces to infringe and/or whose infringement to which Defendant
contributes are the end users of the Accused Products. Defendant had knowledge of the ’472
Patent at least as early as the service of this complaint and is thus liable for infringement of one
or more claims of the ’472 Patent by actively inducing infringement and/or is liable as
contributory infringer of one or more claims of the ’472 Patent under 35 U.S.C. § 271.
60.

Defendant’s acts of infringement of the ’472 Patent have caused damage to Blue Spike,

and Blue Spike is entitled to recover from Defendant the damages sustained as a result of
Defendant’s wrongful acts in an amount subject to proof at trial pursuant to 35 U.S.C. §271.
Defendant’s infringement of Blue Spike’s exclusive rights under the ’472 Patent will continue to
damage Blue Spike, causing it irreparable harm, for which there is no adequate remedy at law,
warranting an injunction from the Court.

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61.

On information and belief, Defendant has continued to infringe the ’472 Patent since

receiving notice of their infringement, at least by way of their receiving notice of this lawsuit. On
information and belief, such continued infringement has been objectively reckless including
because Defendant has (1) acted despite an objectively high likelihood that its actions constituted
infringement of a valid patent and (2) knew or should have known of that objectively high risk.
Accordingly, Blue Spike seeks a willfulness finding against Defendant relative to its
infringement of the ’472 Patent entitling Blue Spike to increased damages under 35 U.S.C. §284
as well as attorneys’ fees and costs under 35 U.S.C. §285.
62.

On information and belief, Defendant has at least had constructive notice of the ’472

Patent by operation of law.
REQUEST FOR RELIEF
Blue Spike incorporates each of the allegations in paragraphs 1 through 62 above and
respectfully asks the Court to:
(a)

enter a judgment that Defendant has directly infringed, contributorily infringed, and/or

induced infringement of one or more claims of each of the Patents-in-Suit;
(b)

enter a judgment awarding Blue Spike all damages adequate to compensate it for

Defendant’s infringement of, direct or contributory, or inducement to infringe, the Patents-inSuit, including all pre-judgment and post-judgment interest at the maximum rate permitted by
law;
(c)

enter a judgment awarding treble damages pursuant to 35 U.S.C. §284 for Defendant’s

willful infringement of one or more of the Patents-in-Suit;
(d)

issue a preliminary injunction and thereafter a permanent injunction enjoining and

restraining Defendant, its directors, officers, agents, servants, employees, and those acting in

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privity or in concert with them, and their subsidiaries, divisions, successors, and assigns, from
further acts of infringement, contributory infringement, or inducement of infringement of the
Patents-in-Suit;
(c)

enter a judgment requiring Defendant to pay the costs of this action, including all

disbursements, and attorneys’ fees as provided by 35 U.S.C. §285, together with prejudgment
interest; and
(d)

award Blue Spike all other relief that the Court may deem just and proper.
DEMAND FOR JURY TRIAL
Blue Spike demands a jury trial on all issues that may be determined by a jury.
Respectfully submitted,

___________________________
Eric M. Albritton
Texas State Bar No. 00790215
[e-mail]
Stephen E. Edwards
Texas State Bar No. 00784008
[e-mail]
Michael A. Benefield
Texas State Bar No. 24073408
[e-mail]
ALBRITTON LAW FIRM
P.O. Box 2649
Longview, Texas 75606
Telephone: [phone]
Facsimile: [phone]
Randall T. Garteiser
Texas Bar No. 24038912
[e-mail]
Christopher A. Honea
Texas Bar No. 24059967
[e-mail]
Christopher S. Johns
Texas Bar No. 24044849
[e-mail]

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GARTEISER HONEA, P.C.
44 North San Pedro Road
San Rafael, California 94903
Telephone: [phone]
Facsimile: [phone]
Counsel for Blue Spike, LLC

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