VirnetX Inc. v. Apple Inc
Filing
2
THIRD AMENDED COMPLAINT against Apple Inc, filed by VirnetX Inc. Originally filed in 6:10cv417. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(mjc, )
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 1 of 41 PageID #: 6635
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
VIRNETX INC.,
PLAINTIFF,
VS.
CISCO SYSTEMS, INC.,
APPLE INC.,
AASTRA USA, INC.,
AASTRA TECHNOLOGIES LTD.,
NEC CORPORATION AND
NEC CORPORATION OF AMERICA,
DEFENDANTS.
§
§
§
§
§
§
§
§
§
§
§
§
§
§
Civil Action No. 6:10-CV-417
PLAINTIFF VIRNETX INC.’S
THIRD AMENDED COMPLAINT
Plaintiff VirnetX Inc. (“VirnetX”) and
Plaintiff Science Applications International
Corporation (“SAIC”) files this Third Amended Complaint against Defendants Cisco Systems,
Inc., Apple Inc., Aastra USA, Inc., Aastra Technologies Ltd., NEC Corporation and NEC
Corporation of America (collectively, “Defendants”) 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 Ct., Zephyr Cove,
NV 89448.
2.
Science Applications International Corporation (“SAIC”) is a corporation formed
under the laws of the state of Delaware with a principal place of business at 1710 SAIC Drive,
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 1
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 2 of 41 PageID #: 6636
Mclean, Virginia 22102. SAIC is made a party herein by the March 20, 2012 Order of the Court
[Dkt. 236], directing SAIC to join as a plaintiff in this case. Since SAIC being joined by order of
the Court, SAIC lacks sufficient knowledge to affirm or deny the other averments in this Third
Amended Complaint.
3.
Defendant Cisco Systems, Inc. (“Cisco”) is a California corporation with its
principal place of business at 170 West Tasman Dr., San Jose, CA 95134. On information and
belief, Cisco 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.
4.
Defendant Apple Inc. (“Apple”) 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.
5.
Defendant Aastra Technologies Ltd. is a Canadian corporation with its principal
place of business at 155 Snow Blvd., Concord, Ontario Canada, L4K 4N9. Defendant Aastra
USA, Inc. is a Delaware corporation with its principal place of business at 2811 Internet Blvd.,
Frisco, TX 75034. Aastra Technologies Ltd. and Aastra USA, Inc. are collectively referred to as
“Aastra.” On information and belief, Aastra regularly conducts and transacts business in Texas,
throughout the United States, and within the Eastern District of Texas, and as set forth below,
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 2
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 3 of 41 PageID #: 6637
has committed and continues to commit, tortious acts of patent infringement within and outside
of Texas and within the Eastern District of Texas.
6.
Defendant NEC Corporation is a Japanese corporation with its principal place of
business at 5-7-1 Shiba, Minato-ku, Tokyo 108-8001. Defendant NEC Corporation of America
is a Nevada corporation with its principal place of business at 6535 N. State Highway 161,
Irving, Texas 75039. NEC Corporation and NEC Corporation of America are collectively
referred to as “NEC.” On information and belief, NEC 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
7.
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.
8.
Venue is proper in the Eastern District of Texas under 28 U.S.C. §§ 1391 and
1400(b).
9.
This Court has personal jurisdiction over Defendants. Defendants have conducted
and do conduct business within the State of Texas. Defendants, 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. Defendants,
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
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 3
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 4 of 41 PageID #: 6638
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. Defendants have committed acts of patent infringement within the State of Texas and,
more particularly, within the Eastern District of Texas.
ASSERTED PATENTS
10.
On December 31, 2002, United States Patent No. 6,502,135 (“the ’135 patent”)
entitled “Agile Network Protocol for Secure Communications with Assured System Availability”
was duly and legally issued with Edmund Colby Munger, Douglas Charles Schmidt, Robert
Dunham Short, III, Victor Larson, Michael Williamson as the named inventors after full and fair
examination. VirnetX is the owner of all rights, title, and interest in and to the ’135 patent and
possesses all rights of recovery under the ’135 patent. A copy of the ’135 patent is attached as
Exhibit A.
11.
On January 4, 2005, United States Patent No. 6,839,759 (“the ’759 patent”)
entitled “Method for Establishing Secure Communication Link Between Computers of Virtual
Private Network Without User Entering Any Cryptographic Information” was duly and legally
issued with Victor Larson, Robert Dunham Short, III, Edmund Colby Munger, and Michael
Williamson as the named inventors after full and fair examination. VirnetX is the owner of all
rights, title, and interest in and to the ’759 patent and possesses all rights of recovery under the
’759 patent. A copy of the ’759 patent is attached as Exhibit B.
12.
On March 6, 2007, United States Patent No. 7,188,180 (“the ’180 patent”) entitled
“Method for Establishing Secure Communication Link Between Computers of Virtual Private
Network” was duly and legally issued with Victor Larson, Robert Dunham Short, III, Edmund
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 4
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 5 of 41 PageID #: 6639
Colby Munger, and Michael Williamson as the named inventors after full and fair examination.
VirnetX is the owner of all rights, title, and interest in and to the ’180 patent and possesses all
rights of recovery under the ’180 patent. A copy of the ’180 patent is attached as Exhibit C.
13.
On August 26, 2008, United States Patent No. 7,418,504 (“the ’504 patent”)
entitled “Agile Network Protocol for Secure Communications Using Secure Domain Names”
was duly and legally issued with Victor Larson, Robert Dunham Short, III, Edmund Colby
Munger, and Michael Williamson as the named inventors after full and fair examination.
VirnetX is the owner of all rights, title, and interest in and to the ’504 patent and possesses all
rights of recovery under the ’504 patent. A copy of the ’504 patent is attached as Exhibit D.
14.
On February 10, 2009, United States Patent No. 7,490,151 (“the ’151 patent”)
entitled “Establishment of a Secure Communication Link Based on a Domain Name Service
(DNS) Request” was duly and legally issued with Edmund Colby Munger, Robert Dunham
Short, III, Victor Larson, and Michael Williamson as the named inventors after full and fair
examination. VirnetX is the owner of all rights, title, and interest in and to the ’151 patent and
possesses all rights of recovery under the ’151 patent. A copy of the ’151 patent is attached as
Exhibit E.
15.
On April 5, 2011, United States Patent No. 7,921,211 (“the ’211 patent”) entitled
“Agile Network Protocol for Secure Communications Using Secure Domain Names” was duly
and legally issued with Victor Larson, Robert Dunham Short, III, Edmund Colby Munger, and
Michael Williamson as the named inventors after full and fair examination. VirnetX is the
owner of all rights, title, and interest in and to the ’211 patent and possesses all rights of recovery
under the ’211 patent. A copy of the ’211 patent is attached as Exhibit F.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 5
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 6 of 41 PageID #: 6640
COUNT ONE
PATENT INFRINGEMENT BY AASTRA
16.
VirnetX incorporates by reference paragraphs 1-14 as if fully set forth herein. As
described below, Aastra has infringed and/or continues to infringe the ’135, ’504, and ’211
patents.
17.
At least Aastra’s Clearspan platform, Pointspan platform, 800 server, 5000 server,
6725ip telephone, 6721ip telephone, 6739i telephone, 6730i telephone, 6731i telephone, 6753i
(53i) telephone, 6755i (55i) telephone, 6757i (57i) telephone, 6757i CT (57i CT) telephone,
M670i (536M) Expansion Module, M675i (560M) Expansion Module, 9143i telephone, 9480i
telephone, and 9480i CT telephone infringe at least system claims 10 and 12 of the ’135 patent.
Aastra makes, uses, sells, offers for sale, exports, imports, supplies, and/or distributes within and
from the United States these products and thus directly infringes at least claims 10 and 12 of the
’135 patent.
18.
The use of at least Aastra’s Clearspan platform, Pointspan platform, 800 server,
5000 server, 6725ip telephone, 6721ip telephone, 6739i telephone, 6730i telephone, 6731i
telephone, 6753i (53i) telephone, 6755i (55i) telephone, 6757i (57i) telephone, 6757i CT (57i
CT) telephone, M670i (536M) Expansion Module, M675i (560M) Expansion Module, 9143i
telephone, 9480i telephone, and 9480i CT telephone as intended by Aastra infringes at least
method claims 1-5, 7, 9, and 13 of the ’135 patent. Aastra uses these products and thus directly
infringes at least claims 1-5, 7, 9, and 13 of the ’135 patent.
19.
In addition, Aastra provides at least its Clearspan platform, Pointspan platform,
800 server, 5000 server, 6725ip telephone, 6721ip telephone, 6739i telephone, 6730i telephone,
6731i telephone, 6753i (53i) telephone, 6755i (55i) telephone, 6757i (57i) telephone, 6757i CT
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 6
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 7 of 41 PageID #: 6641
(57i CT) telephone, M670i (536M) Expansion Module, M675i (560M) Expansion Module, 9143i
telephone, 9480i telephone, and 9480i CT telephone to resellers, consultants, and end-user
customers in the United States who, in turn, use these products to infringe at least claims 1-5, 7,
9-10, and 12-13 of the ’135 patent.
20.
Aastra indirectly infringes the ’135 patent by inducing infringement by resellers,
consultants, and end-user customers, in accordance with 35 U.S.C. § 271(b), because Aastra
actively induces infringement of the ’135 patent by resellers, consultants, and end-user
customers.
21.
Aastra indirectly infringes the ’135 patent by contributing to infringement by
resellers, consultants, and end-user customers, in accordance with 35 U.S.C. § 271(c), because
Aastra 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.
22.
At least Aastra’s Clearspan platform, Pointspan platform, 800 server, 5000 server,
6725ip telephone, 6721ip telephone, 6739i telephone, 6730i telephone, 6731i telephone, 6753i
(53i) telephone, 6755i (55i) telephone, 6757i (57i) telephone, 6757i CT (57i CT) telephone,
M670i (536M) Expansion Module, M675i (560M) Expansion Module, 9143i telephone, 9480i
telephone, and 9480i CT telephone infringe at least system claims 1, 6, 8, 9, 14-17, 19-23, and
26-35 of the ’504 patent. Aastra makes, uses, sells, offers for sale, exports, imports, supplies,
and/or distributes within and from the United States these products and thus directly infringes at
least claims, 1, 6, 8, 9, 14-17, 19-23, and 26-35 of the ’504 patent.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 7
Case 6:10-cv-00417-LED Document 238
23.
Filed 03/28/12 Page 8 of 41 PageID #: 6642
At least Aastra’s Clearspan platform, Pointspan platform, 800 server, 5000 server,
6725ip telephone, 6721ip telephone, 6739i telephone, 6730i telephone, 6731i telephone, 6753i
(53i) telephone, 6755i (55i) telephone, 6757i (57i) telephone, 6757i CT (57i CT) telephone,
M670i (536M) Expansion Module, M675i (560M) Expansion Module, 9143i telephone, 9480i
telephone, and 9480i CT telephone, well as Aastra’s servers, master discs, and other media that
store, cache, or distribute Aastra’s software, infringe at least computer readable media claims 36,
38-41, 43-47, 50-59 of the ’504 patent. Aastra makes, uses, sells, offers for sale, imports,
exports, imports, supplies, and/or distributes within and from the United States these products
and media and thus directly infringes at least claims 36, 38-41, 43-47, 50-59 of the ’504 patent.
24.
The use of at least Aastra’s Clearspan platform, Pointspan platform, 800 server,
5000 server, 6725ip telephone, 6721ip telephone, 6739i telephone, 6730i telephone, 6731i
telephone, 6753i (53i) telephone, 6755i (55i) telephone, 6757i (57i) telephone, 6757i CT (57i
CT) telephone, M670i (536M) Expansion Module, M675i (560M) Expansion Module, 9143i
telephone, 9480i telephone, and 9480i CT telephone as intended by Aastra infringes at least
method claim 60 of the ’504 patent. Aastra uses these products and thus directly infringes at
least claim 60 of the ’504 patent.
25.
In addition, Aastra provides at least its Clearspan platform, Pointspan platform,
800 server, 5000 server, 6725ip telephone, 6721ip telephone, 6739i telephone, 6730i telephone,
6731i telephone, 6753i (53i) telephone, 6755i (55i) telephone, 6757i (57i) telephone, 6757i CT
(57i CT) telephone, M670i (536M) Expansion Module, M675i (560M) Expansion Module, 9143i
telephone, 9480i telephone, and 9480i CT telephone to resellers, consultants, and end-user
customers in the United States who, in turn, use these products to infringe at least claims 1, 6, 8,
9, 14-17, 19-23, 26-36, 38-41, 43-47, and 50-60 of the ’504 patent.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 8
Case 6:10-cv-00417-LED Document 238
26.
Filed 03/28/12 Page 9 of 41 PageID #: 6643
Aastra indirectly infringes the ’504 patent by inducing infringement by resellers,
consultants, and end-user customers, in accordance with 35 U.S.C. § 271(b), because Aastra
actively induces infringement of the ’504 patent by resellers, consultants, and end-user
customers.
27.
Aastra indirectly infringes the ’504 patent by contributing to infringement by
resellers, consultants, and end-user customers, in accordance with 35 U.S.C. § 271(c), because
Aastra 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.
28.
At least Aastra’s Clearspan platform, Pointspan platform, 800 server, 5000 server,
6725ip telephone, 6721ip telephone, 6739i telephone, 6730i telephone, 6731i telephone, 6753i
(53i) telephone, 6755i (55i) telephone, 6757i (57i) telephone, 6757i CT (57i CT) telephone,
M670i (536M) Expansion Module, M675i (560M) Expansion Module, 9143i telephone, 9480i
telephone, and 9480i CT telephone infringe at least system claims 1, 6, 8, 9, 14-17, 19-23, and
26-35 of the ’211 patent. Aastra makes, uses, sells, offers for sale, exports, imports, supplies,
and/or distributes within and from the United States these products and thus directly infringes at
least claims 1, 6, 8, 9, 14-17, 19-23, and 26-35 of the ’211 patent.
29.
At least Aastra’s Clearspan platform, Pointspan platform, 800 server, 5000 server,
6725ip telephone, 6721ip telephone, 6739i telephone, 6730i telephone, 6731i telephone, 6753i
(53i) telephone, 6755i (55i) telephone, 6757i (57i) telephone, 6757i CT (57i CT) telephone,
M670i (536M) Expansion Module, M675i (560M) Expansion Module, 9143i telephone, 9480i
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 9
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 10 of 41 PageID #: 6644
telephone, and 9480i CT telephone, well as Aastra’s servers, master discs, and other media that
store, cache, or distribute Aastra’s software, infringe at least non-transitory computer readable
media claims 36, 38-41, 43-47, 50-59 of the ’211 patent. Aastra makes, uses, sells, offers for
sale, imports, exports, imports, supplies, and/or distributes within and from the United States
these products and media and thus directly infringes at least claims 36, 38-41, 43-47, 50-59 of
the ’211 patent.
30.
The use of at least Aastra’s Clearspan platform, Pointspan platform, 800 server,
5000 server, 6725ip telephone, 6721ip telephone, 6739i telephone, 6730i telephone, 6731i
telephone, 6753i (53i) telephone, 6755i (55i) telephone, 6757i (57i) telephone, 6757i CT (57i
CT) telephone, M670i (536M) Expansion Module, M675i (560M) Expansion Module, 9143i
telephone, 9480i telephone, and 9480i CT telephone as intended by Aastra infringes at least
method claim 60 of the ’211 patent. Aastra uses these products and thus directly infringes at
least claim 60 of the ’211 patent.
31.
In addition, Aastra provides at least its Clearspan platform, Pointspan platform,
800 server, 5000 server, 6725ip telephone, 6721ip telephone, 6739i telephone, 6730i telephone,
6731i telephone, 6753i (53i) telephone, 6755i (55i) telephone, 6757i (57i) telephone, 6757i CT
(57i CT) telephone, M670i (536M) Expansion Module, M675i (560M) Expansion Module, 9143i
telephone, 9480i telephone, and 9480i CT telephone to resellers, consultants, and end-user
customers in the United States who, in turn, use these products to infringe at least claims 1, 6, 8,
9, 14-17, 19-23, 26-36, 38-41, 43-47, and 50-60 of the ’211 patent.
32.
Aastra indirectly infringes the ’211 patent by inducing infringement by resellers,
consultants, and end-user customers, in accordance with 35 U.S.C. § 271(b), because Aastra
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 10
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 11 of 41 PageID #: 6645
actively induces infringement of the ’211 patent by resellers, consultants, and end-user
customers.
33.
Aastra indirectly infringes the ’211 patent by contributing to infringement by
resellers, consultants, and end-user customers, in accordance with 35 U.S.C. § 271(c), because
Aastra 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.
34.
Aastra has infringed and/or continues to infringe one or more claims of the ’135,
504, and ‘211 patents as set forth above. Aastra is liable for direct infringement, as well as
indirect infringement by way of inducement and/or contributory infringement, for the ’135, ’504,
and ’211 patents pursuant to 35 U.S.C. § 271 (a), (b), (c), and/or (f) as set forth above. For
VirnetX’s claims of indirect infringement, Aastra’s resellers, consultants, and end-user
customers are direct infringers of the ’135, ’504, and ’211 patents.
35.
Aastra’s acts of infringement have caused damage to VirnetX. VirnetX is entitled
to recover from Aastra the damages sustained by VirnetX as a result of Aastra’s wrongful acts in
an amount subject to proof at trial. In addition, the infringing acts and practices of Aastra has
caused, is 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.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 11
Case 6:10-cv-00417-LED Document 238
36.
lawsuit.
Filed 03/28/12 Page 12 of 41 PageID #: 6646
Aastra has received actual notice of infringement by virtue of the filing of this
Aastra has also received constructive notice, as VirnetX has complied with the
requirements of 35 U.S.C. § 287.
COUNT TWO
PATENT INFRINGEMENT BY APPLE
37.
VirnetX incorporates by reference paragraphs 1-35 as if fully set forth herein. As
described below, Apple has infringed and/or continues to infringe the ’135, ’151, ’504, and ’211
patents.
38.
At least Apple’s iPhone, iPhone 3G, iPhone 3GS, iPhone 4, iPod Touch, iPad, and
iPad 2, when configured and operating in a system as specified by Apple, infringe at least system
claims 10 and 12 of the ’135 patent. Apple makes and/or uses these systems and thus directly
infringes at least claims 10 and 12 of the ’135 patent.
39.
The use of Apple’s iPhone, iPhone 3G, iPhone 3GS, iPhone 4, iPod Touch, iPad,
and iPad 2 as intended by Apple infringes at least method claims 1, 3, 7, 8, and 9 of the ’135
patent. Apple uses these products and thus directly infringes at least claims 1, 3, 7, 8, and 9 of
the ’135 patent.
40.
In addition, Apple provides at least its iPhone, iPhone 3G, iPhone 3GS, iPhone 4,
iPod Touch, iPad, and iPad 2 to others, such as resellers and end-user customers, in the United
States who, in turn, use these products to infringe at least claims 1, 3, 7, 8, 9, 10, and 12 of the
’135 patent.
41.
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 ’135 patent by others, such as resellers and end-user customers.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 12
Case 6:10-cv-00417-LED Document 238
42.
Filed 03/28/12 Page 13 of 41 PageID #: 6647
Apple indirectly infringes the ’135 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.
43.
Apple’s iPhone, iPhone 3G, iPhone 3GS, iPhone 4, iPod Touch, iPad, and iPad 2
infringe at least apparatus claims 1 and 6 of the ’151 patent.
Apple makes, uses, sells, offers for
sale, imports, exports, imports, supplies, and/or distributes within and from the United States
these products and thus directly infringes at least claims 1 and 6 of the ’151 patent.
44.
At least Apple’s iPhone, iPhone 3G, iPhone 3GS, iPhone 4, iPod Touch, iPad, and
iPad 2, as well as Apple’s servers, master discs, and other media that store, cache, or distribute
iPhone OS, infringe at least computer readable media claims 7, 12, and 13 of the ’151 patent.
Apple makes, uses, sells, offers for sale, imports, exports, imports, supplies, and/or distributes
within and from the United States these products and media and thus directly infringes at least
claims 7, 12 and 13 of the ’151 patent.
45.
In addition, Apple provides at least its iPhone, iPhone 3G, iPhone 3GS, iPhone 4,
iPod Touch, iPad, and iPad 2, and media that store, cache, or distribute iPhone OS to others, such
as resellers and end-user customers, in the United States who, in turn, use these products to
infringe at least claims 1, 6, 7, 12, and 13 of the ’151 patent.
46.
Apple indirectly infringes the ‘151 patent by inducing infringement by others,
such as resellers and end-user customers, in accordance with 35 U.S.C. § 271(b), because Apple
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 13
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 14 of 41 PageID #: 6648
actively induces infringement of the ’151 patent by others, such as resellers and end-user
customers.
47.
Apple indirectly infringes the ’151 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.
48.
At least Apple’s servers and other Apple computers that support the FaceTime
functionality, when configured and operating in a system as specified by Apple, and Apple’s
iPhone 4, iPod Touch, iPad 2, and Apple computers running Apple’s FaceTime for Mac
application, infringe at least system claims 1, 2, 5, 6, 14-23, 26-28, and 33-35 of the ’504 patent.
Apple makes and/or uses these systems and thus directly infringes at least claims 1, 2, 5, 6, 1423, 26-28, and 33-35 of the ’504 patent.
49.
At least Apple’s servers and other Apple computers that support the FaceTime
functionality, as well as Apple’s servers, master discs, and other media that store, cache, or
distribute iPhone OS, when configured and operating in a system as specified by Apple, and
Apple’s iPhone 4, iPod Touch, iPad 2, and Apple computers running Apple’s FaceTime for Mac
application, infringe at least machine readable medium claims 36-47, 49-52, and 57-59 of the
’504 patent.
Apple makes, uses, sells, offers for sale, exports, imports, supplies, and/or
distributes within and from the United States these products and media and thus directly
infringes at least claims 36-47, 50-52, and 57-59 of the ’504 patent.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 14
Case 6:10-cv-00417-LED Document 238
50.
Filed 03/28/12 Page 15 of 41 PageID #: 6649
The use of at least Apple’s servers and other Apple computers that support the
FaceTime functionality, when configured and operating in a system as specified by Apple, and
Apple’s iPhone 4, iPod Touch, iPad 2, and Apple computers running Apple’s FaceTime for Mac
application, as intended by Apple infringes at least method claim 60 of the ’504 patent. Apple
uses these products and thus directly infringes at least claim 60 of the ’504 patent.
51.
In addition, Apple provides at least its iPhone 4, iPod Touch, iPad 2, Apple
computers running Apple’s FaceTime for Mac application, and media that store, cache, or
distribute iPhone OS to others, such as resellers and end-user customers, in the United States
who, in turn, use these products to infringe at least claims 1, 2, 5, 6, 14-23, 26-28, 33-47, 50-52,
and 57-60 of the ’504 patent.
52.
Apple indirectly infringes the ’504 patent 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 ’504 patent by others, such as resellers and end-user
customers.
53.
Apple indirectly infringes the ’504 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.
54.
At least Apple’s servers and other Apple computers that support the FaceTime
functionality, when configured and operating in a system as specified by Apple, and Apple’s
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 15
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 16 of 41 PageID #: 6650
iPhone 4, iPod Touch, iPad 2, and Apple computers running Apple’s FaceTime for Mac
application, infringe at least system claims 1, 2, 5, 6, 14-23, 26-28, and 33-35 of the ’211 patent.
Apple makes and/or uses these systems and thus directly infringes at least claims 1, 2, 5, 6, 1423, 26-28, and 33-35 of the ’211 patent.
55.
At least Apple’s servers and other Apple computers that support the FaceTime
functionality, as well as Apple’s servers, master discs, and other media that store, cache, or
distribute iPhone OS, when configured and operating in a system as specified by Apple, and
Apple’s iPhone 4, iPod Touch, iPad 2, and Apple computers running Apple’s FaceTime for Mac
application, infringe at least non-transitory machine readable medium claims 36-47, 49-52, and
57-59 of the ’211 patent. Apple makes, uses, sells, offers for sale, exports, imports, supplies,
and/or distributes within and from the United States these products and media and thus directly
infringes at least claims 36-47, 50-52, and 57-59 of the ’211 patent.
56.
The use of at least Apple’s servers and other Apple computers that support the
FaceTime functionality, when configured and operating in a system as specified by Apple, and
Apple’s iPhone 4, iPod Touch, iPad 2, and Apple computers running Apple’s FaceTime for Mac
application, as intended by Apple infringes at least method claim 60 of the ’211 patent. Apple
uses these products and thus directly infringes at least claim 60 of the ’211 patent.
57.
In addition, Apple provides at least its iPhone 4, iPod Touch, iPad 2, Apple
computers running Apple’s FaceTime for Mac application, and media that store, cache, or
distribute iPhone OS to others, such as resellers and end-user customers, in the United States
who, in turn, use these products to infringe at least claims 1, 2, 5, 6, 14-23, 26-28, 33-47, 50-52,
and 57-60 of the ’211 patent.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 16
Case 6:10-cv-00417-LED Document 238
58.
Filed 03/28/12 Page 17 of 41 PageID #: 6651
Apple indirectly infringes the ’211 patent 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 ’211 patent by others, such as resellers and end-user
customers.
59.
Apple indirectly infringes the ’211 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.
60.
Apple has infringed and/or continues to infringe one or more claims of the ’135,
’151, ’504, and ’211 patents 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 ’135, ’151,
’504, and ’211 patents pursuant to 35 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 end-user customers
are direct infringers of the ’135, ’151, ’504, and ’211 patents.
61.
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.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 17
Case 6:10-cv-00417-LED Document 238
62.
lawsuit.
Filed 03/28/12 Page 18 of 41 PageID #: 6652
Apple has received actual notice of infringement by virtue of the filing of this
Apple has also received constructive notice, as VirnetX has complied with the
requirements of 35 U.S.C. § 287.
COUNT THREE
PATENT INFRINGEMENT BY CISCO
63.
VirnetX incorporates by reference paragraphs 1-61 as if fully set forth herein. As
described below, Cisco has infringed and/or continues to infringe the ’135, ’759, ’180, ’504,
’211, and ’151 patents.
64.
At least Cisco’s 3900, 6900, 7900, 8900, and 9900 Series IP Phones, IP
Communicator, Cius, 3200, 3000, 1300, 1100, 1000 and 500 Series TelePresence Systems, Cisco
TelePresence Multipoint Switch, Unified Communications Manager Business Edition, Unified
Communications Manager Express, Unified Communications Manager (including certain
versions formerly known as Unified CallManager), ASA 5500 Series Adaptive Security
Appliances, SPA 301, 303, 501G, 502G, 504G, 508G, 509G, 525G/525G2, SPA962, SPA942,
SPA941, SPA932, SPA922, SPA921, and SPA901 IP Phones, Unified Border Element, Unified
SIP Proxy, 2600, 2800, 3700, and 3800 Series Integrated Services Routers, SIP Proxy Server,
and Cisco’s AnyConnect Secure Mobility Client software application for Apple’s iPhone, iPhone
3G, iPhone 3Gs, iPhone 4G, iPod Touch, iPad, and iPad 2, when configured and operating in a
system as intended by Cisco, infringe at least system claims 10 and 12 of the ’135 patent. Cisco
makes, uses, sells, offers for sale, exports, imports, supplies, and/or distributes within and from
the United States these products and thus directly infringes at least claims 10 and 12 of the ’135
patent.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 18
Case 6:10-cv-00417-LED Document 238
65.
Filed 03/28/12 Page 19 of 41 PageID #: 6653
The use of at least Cisco’s 3900, 6900, 7900, 8900, and 9900 Series IP Phones, IP
Communicator, Cius, 3200, 3000, 1300, 1100, 1000 and 500 Series TelePresence Systems, Cisco
TelePresence Multipoint Switch, Unified Communications Manager Business Edition, Unified
Communications Manager Express, Unified Communications Manager (including certain
versions formerly known as Unified CallManager), ASA 5500 Series Adaptive Security
Appliances, SPA 301, 303, 501G, 502G, 504G, 508G, 509G, 525G/525G2, SPA962, SPA942,
SPA941, SPA932, SPA922, SPA921, and SPA901 IP Phones, Unified Border Element, Unified
SIP Proxy, 2600, 2800, 3700, and 3800 Series Integrated Services Routers, SIP Proxy Server,
870, 880, 890, 1800, 1900, 2900, and 3900 Series Integrated Services Routers, 7200 Series
Routers, 7301 Routers, ASR 1000 Series Routers, 7200VXR Routers, 7600 Series Routers,
Catalyst 6500 Series Switches, 7825, 7828, 7835 and 7845 Media Convergence Servers,
Intercompany Media Engine software, and certain Cisco IOS software as intended by Cisco
infringes at least method claims 1-5, 7, 9, and 13 of the ’135 patent. Cisco uses these products
and thus directly infringes at least claims 1-5, 7, 9, and 13 of the ’135 patent. In addition, the use
of Cisco’s AnyConnect Secure Mobility Client software application for Apple’s iPhone, iPhone
3G, iPhone 4, iPod Touch, iPad, and iPad 2, when configured and operating in a system as
intended by Cisco, infringes at least method claims 1, 3, 7, 8, 9, and 13 of the ’135 patent. Cisco
uses these instrumentalities and thus directly infringes at least claims 1, 3, 7, 8, 9, and 13 of the
’135 patent.
66.
In addition, Cisco provides at least its 3900, 6900, 7900, 8900, and 9900 Series IP
Phones, IP Communicator, Cius, 3200, 3000, 1300, 1100, 1000 and 500 Series TelePresence
Systems, Cisco TelePresence Multipoint Switch, Unified Communications Manager Business
Edition, Unified Communications Manager Express, Unified Communications Manager
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 19
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 20 of 41 PageID #: 6654
(including certain versions formerly known as Unified CallManager), ASA 5500 Series Adaptive
Security Appliances, SPA 301, 303, 501G, 502G, 504G, 508G, 509G, 525G/525G2, SPA962,
SPA942, SPA941, SPA932, SPA922, SPA921, and SPA901 IP Phones, Unified Border Element,
Unified SIP Proxy, 2600, 2800, 3700, and 3800 Series Integrated Services Routers, SIP Proxy
Server, 870, 880, 890, 1800, 1900, 2900, and 3900 Series Integrated Services Routers, 7200
Series Routers, 7301 Routers, ASR 1000 Series Routers, 7200VXR Routers, 7600 Series
Routers, Catalyst 6500 Series Switches, 7825, 7828, 7835 and 7845 Media Convergence Servers,
Intercompany Media Engine software, and certain Cisco IOS software to resellers, consultants,
and end-user customers in the United States who, in turn, use these products to infringe claims 15, 7, 9-10, and 12-13 of the ’135 patent. In addition, Cisco provides at least its AnyConnect
Secure Mobility Client software application for Apple’s iPhone, iPhone 3G, iPhone 3GS, iPhone
4, iPad, and iPad2, to resellers, consultants, and end-user customers in the United States who, in
turn, use these products to infringe claims 1, 3, 7, 9, 10, 12, and 13 of the ’135 patent.
67.
Cisco indirectly infringes by inducing infringement by resellers, consultants, and
end-user customers, in accordance with 35 U.S.C. § 271(b), because Cisco actively induces
infringement of the ’135 patent by resellers, consultants, and end-user customers.
68.
Cisco indirectly infringes the ’135 patent by contributing to infringement by
resellers, consultants, and end-user customers, in accordance with 35 U.S.C. § 271(c), because
Cisco 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.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 20
Case 6:10-cv-00417-LED Document 238
69.
Filed 03/28/12 Page 21 of 41 PageID #: 6655
At least Cisco’s 800, 1700, 1800, 1900, 2800 and 2900 Series Integrated Services
Routers, ASA 5500 Series Adaptive Security Appliances, 3700, 3800 and 3900 Series Integrated
Services Routers, 7200 Series Routers, 7301 Routers, UBR900, Catalyst 6500 Series Switches,
ASR 1000 Series Routers, certain PIX Security Appliances, AnyConnect VPN Client, Easy VPN
Remote, Easy VPN Server, and Easy VPN Client, as well as Cisco’s servers, master discs, and
other media that store, cache, or distribute Cisco’s software, infringe at least computer readable
media claims 16-17 and 23-29 of the ’759 patent. Cisco makes, uses, sells, offers for sale,
exports, imports, supplies, and/or distributes within and from the United States these products
and media and thus directly infringes at least claims 16-17 and 23-29 of the ’759 patent.
70.
The use of at least Cisco’s 800, 1700, 1800, 1900, 2800 and 2900 Series
Integrated Services Routers, ASA 5500 Series Adaptive Security Appliances, 3700, 3800 and
3900 Series Integrated Services Routers, 7200 Series Routers, 7301 Routers, UBR900, Catalyst
6500 Series Switches, ASR 1000 Series Routers, certain PIX Security Appliances, AnyConnect
VPN Client, Easy VPN Remote, Easy VPN Server, and Easy VPN Client as intended by Cisco
infringes at least method claims 1-2 and 8-14 of the ’759 patent. Cisco uses these products and
thus directly infringes at least claims 1-2 and 8-14 of the ’759 patent.
71.
In addition, Cisco provides at least its 800, 1700, 1800, 1900, 2800 and 2900
Series Integrated Services Routers, ASA 5500 Series Adaptive Security Appliances, 3700, 3800
and 3900 Series Integrated Services Routers, 7200 Series Routers, 7301 Routers, UBR900,
Catalyst 6500 Series Switches, ASR 1000 Series Routers, certain PIX Security Appliances,
AnyConnect VPN Client, Easy VPN Remote, Easy VPN Server, Easy VPN Client, and media
that store, cache, or distribute Cisco’s software to resellers, consultants, and end-user customers
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 21
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 22 of 41 PageID #: 6656
in the United States who, in turn, use these products to infringe claims 1-2, 8-14, 16-17 and 2329 of the ’759 patent.
72.
Cisco indirectly infringes by inducing infringement by resellers, consultants, and
end-user customers, in accordance with 35 U.S.C. § 271(b), because Cisco actively induces
infringement of the ’759 patent by resellers, consultants, and end-user customers.
73.
Cisco indirectly infringes the ’759 patent by contributing to infringement by
resellers, consultants, and end-user customers, in accordance with 35 U.S.C. § 271(c), because
Cisco 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.
74.
At least Cisco’s 870, 880, 890, 1800, 1900, 2800, 2900, 3800 and 3900 Series
Integrated Services Routers, 7200 Series Routers, 7301 Routers, ASR 1000 Series Routers,
7200VXR Routers, 7600 Series Routers, Catalyst 6500 Series Switches, 7825, 7828, 7835 and
7845 Media Convergence Servers, Intercompany Media Engine software, and certain Cisco IOS
software infringe at least system claims 33 and 35 of the ’180 patent. Cisco makes, uses, sells,
offers for sale, exports, imports, supplies, and/or distributes within and from the United States
these products and thus directly infringes at least claims 33 and 35 of the ’180 patent.
75.
At least Cisco’s 870, 880, 890, 1800, 1900, 2800, 2900, 3800 and 3900 Series
Integrated Services Routers, 7200 Series Routers, 7301 Routers, ASR 1000 Series Routers,
7200VXR Routers, 7600 Series Routers, Catalyst 6500 Series Switches, 7825, 7828, 7835 and
7845 Media Convergence Servers, Intercompany Media Engine software, and certain Cisco IOS
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 22
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 23 of 41 PageID #: 6657
software, as well as Cisco’s servers, master discs, and other media that store, cache, or distribute
Cisco’s software, infringe at least computer readable media claims 17, 20, 26, 28, 30 of the ’180
patent. Cisco makes, uses, sells, offers for sale, exports, imports, supplies, and/or distributes
within and from the United States these products and media and thus directly infringes at least
claims 17, 20, 26, 28, 30 of the ’180 patent.
76.
The use of at least Cisco’s 870, 880, 890, 1800, 1900, 2800, 2900, 3800 and 3900
Series Integrated Services Routers, 7200 Series Routers, 7301 Routers, ASR 1000 Series
Routers, 7200VXR Routers, 7600 Series Routers, Catalyst 6500 Series Switches, 7825, 7828,
7835 and 7845 Media Convergence Servers, Intercompany Media Engine software, and certain
Cisco IOS software, as intended by Cisco infringes at least method claims 1, 4, 10, 12, and 14 of
the ’180 patent. Cisco uses these products and thus directly infringes at least claims 1, 4, 10, 12,
and 14 of the ’180 patent.
77.
In addition, Cisco provides at least its 870, 880, 890, 1800, 1900, 2800, 2900,
3800 and 3900 Series Integrated Services Routers, 7200 Series Routers, 7301 Routers, ASR
1000 Series Routers, 7200VXR Routers, 7600 Series Routers, Catalyst 6500 Series Switches,
7825, 7828, 7835 and 7845 Media Convergence Servers, Intercompany Media Engine software,
certain Cisco IOS software, and media that store, cache, or distribute Cisco’s software to
resellers, consultants, and end-user customers in the United States who, in turn, use these
products to infringe at least claims 1, 4, 10, 12, 14, 17, 20, 26, 28, 30, 33, and 35 of the ’180
patent.
78.
Cisco indirectly infringes by inducing infringement by resellers, consultants, and
end-user customers, in accordance with 35 U.S.C. § 271(b), because Cisco actively induces
infringement of the ’180 patent by resellers, consultants, and end-user customers.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 23
Case 6:10-cv-00417-LED Document 238
79.
Filed 03/28/12 Page 24 of 41 PageID #: 6658
Cisco indirectly infringes the ’180 patent by contributing to infringement by
resellers, consultants, and end-user customers, in accordance with 35 U.S.C. § 271(c), because
Cisco 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.
80.
At least Cisco’s 3900, 6900, 7900, 8900, and 9900 Series IP Phones, IP
Communicator, Cius, 3200, 3000, 1300, 1100, 1000 and 500 Series TelePresence Systems, Cisco
TelePresence Multipoint Switch, Unified Communications Manager Business Edition, Unified
Communications Manager Express, and Unified Communications Manager (including certain
versions formerly known as Unified CallManager), 2600, 2800, 3700, and 3800 Series Integrated
Services Routers, 870, 880, 890, 1800, 1900, 2900, and 3900 Series Integrated Services Routers,
7200 Series Routers, 7301 Routers, ASR 1000 Series Routers, 7200VXR Routers, 7600 Series
Routers, Catalyst 6500 Series Switches, and certain Cisco IOS software, infringe at least system
claims 1, 6, 7, 8, 9, 14-17, 19-23, and 26-35 of the ’504 patent. Cisco makes, uses, sells, offers
for sale, exports, imports, supplies, and/or distributes within and from the United States these
products and thus directly infringes at least claims 1, 6, 7, 8, 9, 14-17, 19-23, and 26-35 of the
’504 patent.
81.
At least Cisco’s 3900, 6900, 7900, 8900, and 9900 Series IP Phones, IP
Communicator, Cius, 3200, 3000, 1300, 1100, 1000 and 500 Series TelePresence Systems, Cisco
TelePresence Multipoint Switch, Unified Communications Manager Business Edition, Unified
Communications Manager Express, and Unified Communications Manager (including certain
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 24
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 25 of 41 PageID #: 6659
versions formerly known as Unified CallManager), 2600, 2800, 3700, and 3800 Series Integrated
Services Routers, 870, 880, 890, 1800, 1900, 2900, and 3900 Series Integrated Services Routers,
7200 Series Routers, 7301 Routers, ASR 1000 Series Routers, 7200VXR Routers, 7600 Series
Routers, Catalyst 6500 Series Switches, and certain Cisco IOS software, as well as Cisco’s
servers, master discs, and other media that store, cache, or distribute Cisco’s software, infringe at
least computer readable media claims 36, 38-41, 43-47, and 50-59 of the ’504 patent. Cisco
makes, uses, sells, offers for sale, exports, imports, supplies, and/or distributes within and from
the United States these products and media and thus directly infringes at least claims 36, 38-41,
43-47, and 50-59 of the ’504 patent.
82.
The use of at least Cisco’s 3900, 6900, 7900, 8900, and 9900 Series IP Phones, IP
Communicator, Cius, 3200, 3000, 1300, 1100, 1000 and 500 Series TelePresence Systems, Cisco
TelePresence Multipoint Switch, Unified Communications Manager Business Edition, Unified
Communications Manager Express, and Unified Communications Manager (including certain
versions formerly known as Unified CallManager), 2600, 2800, 3700, and 3800 Series Integrated
Services Routers, 870, 880, 890, 1800, 1900, 2900, and 3900 Series Integrated Service Routers,
7200 Series Routers, 7301 Routers, ASR 1000 Series Routers, 7200VXR Routers, 7600 Series
Routers, Catalyst 6500 Series Switches, and certain Cisco IOS software, as intended by Cisco
infringes at least method claim 60 of the ’504 patent. Cisco uses these products and thus directly
infringes at least claim 60 of the ’504 patent.
83.
In addition, Cisco provides at least its 3900, 6900, 7900, 8900, and 9900 Series IP
Phones, IP Communicator, Cius, 3200, 3000, 1300, 1100, 1000 and 500 Series TelePresence
Systems, Cisco TelePresence Multipoint Switch, Unified Communications Manager Business
Edition, Unified Communications Manager Express, Unified Communications Manager
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 25
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 26 of 41 PageID #: 6660
(including certain versions formerly known as Unified CallManager), 2600, 2800, 3700, and
3800 Series Integrated Services Routers, 870, 880, 890, 1800, 1900, 2900, and 3900 Series
Integrated Service Routers, 7200 Series Routers, 7301 Routers, ASR 1000 Series Routers,
7200VXR Routers, 7600 Series Routers, Catalyst 6500 Series Switches, and certain Cisco IOS
software, and media that store, cache, or distribute Cisco’s software to resellers, consultants, and
end-user customers in the United States who, in turn, use these products to infringe at least
claims 1, 6, 8, 9, 14-17, 19-23, 26-36, 38-41, 43-47, and 50-60 of the ’504 patent.
84.
Cisco indirectly infringes by inducing infringement by resellers, consultants, and
end-user customers, in accordance with 35 U.S.C. § 271(b), because Cisco actively induces
infringement of the ’504 patent by resellers, consultants, and end-user customers.
85.
Cisco indirectly infringes the ’504 patent by contributing to infringement by
resellers, consultants, and end-user customers, in accordance with 35 U.S.C. § 271(c), because
Cisco 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.
86.
At least Cisco’s 3900, 6900, 7900, 8900, and 9900 Series IP Phones, IP
Communicator, Cius, 3200, 3000, 1300, 1100, 1000 and 500 Series TelePresence Systems, Cisco
TelePresence Multipoint Switch, Unified Communications Manager Business Edition, Unified
Communications Manager Express, and Unified Communications Manager (including certain
versions formerly known as Unified CallManager), 2600, 2800, 3700, and 3800 Series Integrated
Services Routers, 870, 880, 890, 1800, 1900, 2900, and 3900 Series Integrated Services Routers,
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 26
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 27 of 41 PageID #: 6661
7200 Series Routers, 7301 Routers, ASR 1000 Series Routers, 7200VXR Routers, 7600 Series
Routers, Catalyst 6500 Series Switches, and certain Cisco IOS software, infringe at least system
claims 1, 6, 7, 8, 9, 14-17, 19-23, and 26-35 of the ‘211 patent. Cisco makes, uses, sells, offers
for sale, exports, imports, supplies, and/or distributes within and from the United States these
products and thus directly infringes at least claims 1, 6, 7, 8, 9, 14-17, 19-23, and 26-35 of the
’211 patent.
87.
At least Cisco’s 3900, 6900, 7900, 8900, and 9900 Series IP Phones, IP
Communicator, Cius, 3200, 3000, 1300, 1100, 1000 and 500 Series TelePresence Systems, Cisco
TelePresence Multipoint Switch, Unified Communications Manager Business Edition, Unified
Communications Manager Express, and Unified Communications Manager (including certain
versions formerly known as Unified CallManager), 2600, 2800, 3700, and 3800 Series Integrated
Services Routers, 870, 880, 890, 1800, 1900, 2900, and 3900 Series Integrated Services Routers,
7200 Series Routers, 7301 Routers, ASR 1000 Series Routers, 7200VXR Routers, 7600 Series
Routers, Catalyst 6500 Series Switches, and certain Cisco IOS software, as well as Cisco’s
servers, master discs, and other media that store, cache, or distribute Cisco’s software, infringe at
least non-transitory computer readable media claims 36, 38-41, 43-47, and 50-59 of the ’211
patent. Cisco makes, uses, sells, offers for sale, exports, imports, supplies, and/or distributes
within and from the United States these products and media and thus directly infringes at least
claims 36, 38-41, 43-47, and 50-59 of the ’211 patent.
88.
The use of at least Cisco’s 3900, 6900, 7900, 8900, and 9900 Series IP Phones, IP
Communicator, Cius, 3200, 3000, 1300, 1100, 1000 and 500 Series TelePresence Systems, Cisco
TelePresence Multipoint Switch, Unified Communications Manager Business Edition, Unified
Communications Manager Express, and Unified Communications Manager (including certain
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 27
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 28 of 41 PageID #: 6662
versions formerly known as Unified Call Manager), 2600, 2800, 3700, and 3800 Series
Integrated Services Routers, 870, 880, 890, 1800, 1900, 2900, and 3900 Series Integrated Service
Routers, 7200 Series Routers, 7301 Routers, ASR 1000 Series Routers, 7200VXR Routers, 7600
Series Routers, Catalyst 6500 Series Switches, and certain Cisco IOS software, as intended by
Cisco infringes at least method claim 60 of the ’211 patent. Cisco uses these products and thus
directly infringes at least claim 60 of the ’211 patent.
89.
In addition, Cisco provides at least its 3900, 6900, 7900, 8900, and 9900 Series IP
Phones, IP Communicator, Cius, 3200, 3000, 1300, 1100, 1000 and 500 Series TelePresence
Systems, Cisco TelePresence Multipoint Switch, Unified Communications Manager Business
Edition, Unified Communications Manager Express, Unified Communications Manager
(including certain versions formerly known as Unified CallManager), 2600, 2800, 3700, and
3800 Series Integrated Services Routers, 870, 880, 890, 1800, 1900, 2900, and 3900 Series
Integrated Service Routers, 7200 Series Routers, 7301 Routers, ASR 1000 Series Routers,
7200VXR Routers, 7600 Series Routers, Catalyst 6500 Series Switches, and certain Cisco IOS
software, and media that store, cache, or distribute Cisco’s software to resellers, consultants, and
end-user customers in the United States who, in turn, use these products to infringe at least
claims 1, 6, 8, 9, 14-17, 19-23, 26-36, 38-41, 43-47, and 50-60 of the ’211 patent.
90.
Cisco indirectly infringes by inducing infringement by resellers, consultants, and
end-user customers, in accordance with 35 U.S.C. § 271(b), because Cisco actively induces
infringement of the ’211 patent by resellers, consultants, and end-user customers.
91.
Cisco indirectly infringes the ’211 patent by contributing to infringement by
resellers, consultants, and end-user customers, in accordance with 35 U.S.C. § 271(c), because
Cisco offers to sell or sells within the United States a component of a patented machine,
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 28
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 29 of 41 PageID #: 6663
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.
92.
Cisco’s AnyConnect Secure Mobility Client software application for iPhone,
iPhone 3G, iPhone 3GS, iPhone 4, iPod Touch, iPad, and iPad 2, when configured and operating
in a system as intended by Cisco, infringes at least apparatus claims 1 and 6 of the ’151 patent.
Cisco makes, uses, sells, offers for sale, imports, exports, supplies, and/or distributes within and
from the United States these instrumentalities and thus directly infringes at least claims 1 and 6
of the ’151 patent.
93.
At least Cisco’s AnyConnect Secure Mobility Client software application for
Apple’s iPhone, iPhone 3G, iPhone 3GS, iPhone 4, iPod Touch, iPad, and iPad 2, when
configured and operating in a system as intended by Cisco, infringes at least computer readable
media claims 7, 12, and 13 of the ’151 patent. Cisco makes, uses, sells, offers for sale, imports,
exports, supplies, and/or distributes within and from the United States these instrumentalities and
thus directly infringes at least claims 7, 12, and 13 of the ’151 patent.
94.
In addition, Cisco provides at least its AnyConnect Secure Mobility Client
software application for Apple’s iPhone, iPhone 3G, iPhone 3GS, iPhone 4, iPod Touch, iPad,
and iPad 2 to others, such as resellers and end-user customers, in the United States who, in turn,
use these instrumentalities to infringe at least claims 1, 6, 7, 12, and 13 of the ’151 patent.
95.
Cisco indirectly infringes the ‘151 patent by inducing infringement by others,
such as resellers and end-user customers, in accordance with 35 U.S.C. § 271(b), because Cisco
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 29
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 30 of 41 PageID #: 6664
actively induces infringement of the ’151 patent by others, such as resellers and end-user
customers.
96.
Cisco indirectly infringes the ’151 patent by contributing to infringement by
others, such as resellers and end-user customers, in accordance with 35 U.S.C. § 271(c), because
Cisco 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.
97.
Cisco has infringed and/or continues to infringe one or more claims of the ’135,
’759, ’180, ’504, ’211, and ’151 patents as set forth above.
Cisco is liable for direct
infringement, as well as indirect infringement by way of inducement and/or contributory
infringement, for the ’135, ’759, ’180, ’504, ’211, and ’151 patents pursuant to 35 U.S.C. § 271
(a), (b), (c), and/or (f) as set forth above. For VirnetX’s claims of indirect infringement, Cisco’s
resellers, consultants, and end-user customers are direct infringers of the ’135, ’759, ’180, ’504,
’211, and ’151 patents.
98.
Cisco’s acts of infringement have caused damage to VirnetX. VirnetX is entitled
to recover from Cisco the damages sustained by VirnetX as a result of Cisco’s wrongful acts in
an amount subject to proof at trial. In addition, the infringing acts and practices of Cisco has
caused, is 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.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 30
Case 6:10-cv-00417-LED Document 238
99.
Filed 03/28/12 Page 31 of 41 PageID #: 6665
Cisco has received actual notice of infringement prior to and by virtue of the
filing of this lawsuit. Cisco has also received constructive notice, as VirnetX has complied with
the requirements of 35 U.S.C. § 287.
100.
Cisco has willfully infringed and/or does willfully infringe the ’135, ’759, ’180
’504, ’211, and ’151.
COUNT FOUR
PATENT INFRINGEMENT BY NEC
101.
VirnetX incorporates by reference paragraphs 1-99 as if fully set forth herein. As
described below, NEC has infringed and/or continues to infringe the ’135, ’504, and ’211
patents.
102.
At least NEC’s SV7000 Communications Server, SV8100 Communications
Server, SV8300 Communications Server, SV8500 Communications Server, NEC DT710 IP
Terminal, DT730 IP Terminal, DT750 IP Terminal, SP350 Softphone, and SP30 Softphone
infringe at least system claims 10 and 12 of the ’135 patent. NEC makes, uses, sells, offers for
sale, exports, imports, supplies, and/or distributes within and from the United States these
products and thus directly infringes at least claims 10 and 12 of the ’135 patent.
103.
The use of at least NEC’s SV7000 Communications Server, SV8100
Communications Server, SV8300 Communications Server, SV8500 Communications Server,
NEC DT710 IP Terminal, DT730 IP Terminal, DT750 IP Terminal, SP350 Softphone, and SP30
Softphone as intended by NEC infringes at least method claims 1-5, 7, 9, and 13 of the ’135
patent. NEC uses these products and thus directly infringes at least claims 1-5, 7, 9, and 13 of
the ’135 patent.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 31
Case 6:10-cv-00417-LED Document 238
104.
Filed 03/28/12 Page 32 of 41 PageID #: 6666
In addition, NEC provides at least its SV7000 Communications Server, SV8100
Communications Server, SV8300 Communications Server, SV8500 Communications Server,
NEC DT710 IP Terminal, DT730 IP Terminal, DT750 IP Terminal, SP350 Softphone, and SP30
Softphone to NEC resellers, consultants, and end-user customers in the United States who, in
turn, use these products to infringe at least claims 1-5, 7, 9-10, and 12-13 of the ’135 patent.
105.
NEC indirectly infringes by inducing infringement by resellers, consultants, and
end-user customers, in accordance with 35 U.S.C. § 271(b), because NEC actively induces
infringement of the ’135 patent by resellers, consultants, and end-user customers.
106.
NEC indirectly infringes the ’135 patent by contributing to infringement by
resellers, consultants, and end-user customers, in accordance with 35 U.S.C. § 271(c), because
NEC 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.
107.
At least NEC’s SV7000 Communications Server, SV8100 Communications
Server, SV8300 Communications Server, SV8500 Communications Server, NEC DT710 IP
Terminal, DT730 IP Terminal, DT750 IP Terminal, SP350 Softphone, and SP30 Softphone
infringe at least system claims 1, 6, 8, 9, 14-17, 19-23, and 26-35 of the ’504 patent. NEC
makes, uses, sells, offers for sale, exports, imports, supplies, and/or distributes within and from
the United States these products and thus directly infringes at least claims 1, 6, 8, 9, 14-17, 1923, and 26-35 of the ’504 patent.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 32
Case 6:10-cv-00417-LED Document 238
108.
Filed 03/28/12 Page 33 of 41 PageID #: 6667
At least NEC’s SV7000 Communications Server, SV8100 Communications
Server, SV8300 Communications Server, SV8500 Communications Server, NEC DT710 IP
Terminal, DT730 IP Terminal, DT750 IP Terminal, SP350 Softphone, and SP30 Softphone, as
well as NEC’s servers, master discs, and other media that store, cache, or distribute NEC’s
software, infringe at least computer readable media claims 36, 38-41, 43-47, and 50-59 of the
’504 patent. NEC makes, uses, sells, offers for sale, exports, imports, supplies, and/or distributes
within and from the United States these products and media and thus directly infringes at least
claims 36, 38-41, 43-47, and 50-59 of the ’504 patent.
109.
The use of at least NEC’s SV7000 Communications Server, SV8100
Communications Server, SV8300 Communications Server, SV8500 Communications Server,
NEC DT710 IP Terminal, DT730 IP Terminal, DT750 IP Terminal, SP350 Softphone, and SP30
Softphone as intended by NEC infringes at least method claim 60 of the ’504 patent. NEC uses
these products and thus directly infringes at least claim 60 of the ’504 patent.
110.
In addition, NEC provides at least its SV7000 Communications Server, SV8100
Communications Server, SV8300 Communications Server, SV8500 Communications Server,
NEC DT710 IP Terminal, DT730 IP Terminal, DT750 IP Terminal, SP350 Softphone, SP30
Softphone, and media that store, cache, or distribute NEC’s software to resellers, consultants,
and end-user customers in the United States who, in turn, use these products to infringe at least
claims 1, 6, 8, 9, 14-17, 19-23, 26-36, 38-41, 43-47, and 50-60 of the ’504 patent.
111.
NEC indirectly infringes by inducing infringement by resellers, consultants, and
end-user customers, in accordance with 35 U.S.C. § 271(b), because NEC actively induces
infringement of the ’504 patent by resellers, consultants, and end-user customers.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 33
Case 6:10-cv-00417-LED Document 238
112.
Filed 03/28/12 Page 34 of 41 PageID #: 6668
NEC indirectly infringes the ’504 patent by contributing to infringement by
resellers, consultants, and end-user customers, in accordance with 35 U.S.C. § 271(c), because
NEC 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.
113.
At least NEC’s SV7000 Communications Server, SV8100 Communications
Server, SV8300 Communications Server, SV8500 Communications Server, NEC DT710 IP
Terminal, DT730 IP Terminal, DT750 IP Terminal, SP350 Softphone, and SP30 Softphone
infringe at least system claims 1, 6, 8, 9, 14-17, 19-23, and 26-35 of the ’211 patent. NEC
makes, uses, sells, offers for sale, exports, imports, supplies, and/or distributes within and from
the United States these products and thus directly infringes at least claims 1, 6, 8, 9, 14-17, 1923, and 26-35 of the ’211 patent.
114.
At least NEC’s SV7000 Communications Server, SV8100 Communications
Server, SV8300 Communications Server, SV8500 Communications Server, NEC DT710 IP
Terminal, DT730 IP Terminal, DT750 IP Terminal, SP350 Softphone, and SP30 Softphone, as
well as NEC’s servers, master discs, and other media that store, cache, or distribute NEC’s
software, infringe at least non-transitory computer readable media claims 36, 38-41, 43-47, and
50-59 of the ’211 patent. NEC makes, uses, sells, offers for sale, exports, imports, supplies,
and/or distributes within and from the United States these products and media and thus directly
infringes at least claims 36, 38-41, 43-47, and 50-59 of the ’211 patent.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 34
Case 6:10-cv-00417-LED Document 238
115.
Filed 03/28/12 Page 35 of 41 PageID #: 6669
The use of at least NEC’s SV7000 Communications Server, SV8100
Communications Server, SV8300 Communications Server, SV8500 Communications Server,
NEC DT710 IP Terminal, DT730 IP Terminal, DT750 IP Terminal, SP350 Softphone, and SP30
Softphone as intended by NEC infringes at least method claim 60 of the ’211 patent. NEC uses
these products and thus directly infringes at least claim 60 of the ’211 patent.
116.
In addition, NEC provides at least its SV7000 Communications Server, SV8100
Communications Server, SV8300 Communications Server, SV8500 Communications Server,
NEC DT710 IP Terminal, DT730 IP Terminal, DT750 IP Terminal, SP350 Softphone, SP30
Softphone, and media that store, cache, or distribute NEC’s software to resellers, consultants,
and end-user customers in the United States who, in turn, use these products to infringe at least
claims 1, 6, 8, 9, 14-17, 19-23, 26-36, 38-41, 43-47, and 50-60 of the ’211 patent.
117.
NEC indirectly infringes by inducing infringement by resellers, consultants, and
end-user customers, in accordance with 35 U.S.C. § 271(b), because NEC actively induces
infringement of the ’211 patent by resellers, consultants, and end-user customers.
118.
NEC indirectly infringes the ’504 patent by contributing to infringement by
resellers, consultants, and end-user customers, in accordance with 35 U.S.C. § 271(c), because
NEC 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.
119.
NEC has infringed and/or continues to infringe one or more claims of the ’135,
’504, and ’211 patents as set forth above. NEC is liable for direct infringement, as well as
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 35
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 36 of 41 PageID #: 6670
indirect infringement by way of inducement and/or contributory infringement, for the ’135, ’504,
and ’211 patents pursuant to 35 U.S.C. § 271 (a), (b), (c), and/or (f) as set forth above. For
VirnetX’s claims of indirect infringement, NEC’s resellers, consultants, and end-user customers
are direct infringers of the ’135, ’504, and ’211 patents.
120.
NEC’s acts of infringement have caused damage to VirnetX. VirnetX is entitled
to recover from NEC the damages sustained by VirnetX as a result of NEC’s wrongful acts in an
amount subject to proof at trial. In addition, the infringing acts and practices of NEC has caused,
is 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.
121.
lawsuit.
NEC has received actual notice of infringement by virtue of the filing of this
NEC has also received constructive notice, as VirnetX has complied with the
requirements of 35 U.S.C. § 287.
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 Aastra, Apple, Cisco, and NEC have directly infringed the ’135
patent, contributorily infringed the ’135 patent, and/or induced the infringement of the ’135
patent;
2.
A judgment that Cisco has directly infringed the ’759 patent, contributorily
infringed the ’759 patent, and/or induced the infringement of the ’759 patent;
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 36
Case 6:10-cv-00417-LED Document 238
3.
Filed 03/28/12 Page 37 of 41 PageID #: 6671
A judgment that Cisco has directly infringed the ’180 patent, contributorily
infringed the ’180 patent, and/or induced the infringement of the ’180 patent;
4.
A judgment that Aastra, Apple, Cisco, and NEC have directly infringed the ’504
patent, contributorily infringed the ’504 patent, and/or induced the infringement of the ’504
patent;
5.
A judgment that Aastra, Apple, Cisco, and NEC have directly infringed the ‘211
patent, contributorily infringed the ‘211 patent, and/or induced the infringement of the ‘211
patent;
6.
A judgment that Apple and Cisco have directly infringed the ’151 patent,
contributorily infringed the ’151 patent, and/or induced the infringement of the ’151 patent;
7.
A preliminary and permanent injunction preventing Aastra, Apple, Cisco, and
NEC and their 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 ’135 patent;
8.
A preliminary and permanent injunction preventing Cisco 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 ’759 patent;
9.
A preliminary and permanent injunction preventing Cisco 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 ’180 patent;
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 37
Case 6:10-cv-00417-LED Document 238
10.
Filed 03/28/12 Page 38 of 41 PageID #: 6672
A preliminary and permanent injunction preventing Aastra, Apple, Cisco, and
NEC and their 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 ’504 patent;
11.
A preliminary and permanent injunction preventing Aastra, Apple, Cisco, and
NEC and their 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 ’211 patent;
12.
A preliminary and permanent injunction preventing Apple and Cisco 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 ’151 patent;
13.
A judgment that Cisco’s infringement of the ’135, ’759, ’180 ’504, ’211, and ’151
patents has been willful;
14.
This case be found an exceptional case, entitling VirnetX to attorneys’ fees
incurred in prosecuting this action;
15.
A judgment and order requiring Defendants 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;
16.
A judgment and order requiring Defendants to pay VirnetX the costs of this action
(including all disbursements);
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 38
Case 6:10-cv-00417-LED Document 238
17.
Filed 03/28/12 Page 39 of 41 PageID #: 6673
A judgment and order requiring Defendants to pay VirnetX pre-judgment and
post-judgment interest on the damages awarded;
18.
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
19.
Such other and further relief as the Court may deem just and proper.
DATED: March 28, 2012
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
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
John Austin Curry
Texas State Bar No. 24059636
E-mail: acurry@mckoolsmith.com
Daniel R. Pearson
Texas State Bar No. 24070398
Email: dpearson@mckoolsmith.com
Stacie L. Greskowiak
Texas State Bar No. 24074311
E-mail: sgreskowiak@mckoolsmith.com
Mitchell R. Sibley
Texas State Bar No. 24073097
Email: msibley@mckoolsmith.com
MCKOOL SMITH, P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: (214) 978-4000
Telecopier: (214) 978-4044
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 39
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 40 of 41 PageID #: 6674
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
Ramzi R. Khazen
Texas State Bar No. 24040855
Email: rkhazen@mckoolsmith.com
Trent E. Campione
Texas State Bar No. 24049730
Email: tcampione@mckoolsmith.com
Seth R. Hasenour
Texas State Bar No. 24059910
Email: shasenour@mckoolsmith.com
MCKOOL SMITH, P.C.
300 W. 6th Street, Suite 1700
Austin, Texas 78701
Telephone: (512) 692-8700
Telecopier: (512) 692-8744
Robert M. Parker
Texas State Bar No. 15498000
Email: rmparker@pbatyler.com
R. Christopher Bunt
Texas State Bar No. 00787165
Email: rcbunt@pbatyler.com
Andrew T. Gorham
Texas Bar No. 24012715
Email: tgorham@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.
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 40
Case 6:10-cv-00417-LED Document 238
Filed 03/28/12 Page 41 of 41 PageID #: 6675
/s/
Andy Tindel
Andy Tindel
State Bar No. 20054500
E-mail: atindel@andytindel.com
PROVOST UMPHREY
112 E Line, Suite 304
Tyler, Texas 75702
Telephone: (903) 596-0900
Facsimile: (903) 596-0909
Donald Urrabazo
Email: donaldu@ulawgroup.com
URRABAZO LAW, P.C.
2029 Century Park East, Suite 1370
Los Angeles, CA 90067
Telephone: (310) 388-9099
Facsilimle: (310) 388-9088
ATTORNEYS FOR PLAINTIFF
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). As such, this document was served on all counsel who has
consented to electronic service on this day, March 28, 2012. Local Rule CV-53(a)(3)(A).
/s/ Jason Cassady
Jason D. Cassady
PLAINTIFF’S THIRD AMENDED COMPLAINT
McKool 439381v1
PAGE 41
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?