Isys Technologies v. Google et al

Filing 10

MEMORANDUM in Support re 9 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Plaintiff Isys Technologies. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8A, # 9 Exhibit 8B, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15)(Zenger, Todd)

Exhibit 13

Todd E. Zenger (5238)
Dax D. Anderson (10168)
Joshua S. Rupp (12647)
KIRTON & McCONKIE
1800 Eagle Gate Tower
60 East South Temple
Salt Lake City, Utah 84111
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
ISYS TECHNOLOGIES, INC., a Nevada
Corporation,

Civil Action No. 2:11-CV-507 CW

Plaintiff,

Judge Clark Waddoups

vs.
GOOGLE, INC., a Delaware Corporation;
SAMSUNG ELECTRONICS USA, INC., a Delaware
Corporation; ACER AMERICA CORP., a
California Corporation; AMAZON.COM, INC., a
Delaware Corporation; and BEST BUY CO.,
INC., a Minnesota Corporation;

DECLARATION OF JASON SULLIVAN
IN SUPPORT OF ISYS’ MOTION FOR
TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

Defendant.

I, Jason Sullivan am the President of ISYS Technologies, Inc. and its subsidiary Xi3
Corporation and I declare under penalty of perjury that the statements made herein are true and
correct and are based on my own personal knowledge:
1.

In or about late 1999, I invented a new computing system and methods for

manufacturing the computer systems which have been named Xi3® Technology (“Xi3
Technology”).

2.

Some of the features of the Xi3 Technology include closely-integrated circuitry in

a smaller dimensional space, a computing design that can be used in many computing
applications, fewer raw materials and manufacturing processes, cost savings due to the
uniformity and its modular functionality permitting components to be readily added or changed
as desired.
3.

Due to its modular design, the Xi3 computers can be readily configured to run a

number of operating systems, including Microsoft- or Linux-based operating systems.
4.

While including the functionality of standard computers and being able to be used

for all types of computing environments, some of the uniqueness of the Xi3 Technology is its
compact size of a 3½-inch cube, its durability, its light weight, its vertical applications and its
ability to cluster and scale for larger processing applications.
5.

In the Fall of 2009, ISYS began promoting its Modular Computer as an Xi3

product including the brand name CHROMIUMPC.
6.

Since 2009, ISYS has continuously promoted its new computers under the

CHROMIUMPC brand at trade shows.
7.

Since 2009, ISYS has continuously promoted its new computers under the

CHROMIUMPC brand in discussions with customers in different parts of the United States.
8.

Since 2009, ISYS has continuously promoted its new computers under the

CHROMIUMPC brand in electronic communications about its business including marketing and
sales emails to potential customers, Internet blogs, Twitter, Facebook, and its own
www.chromiumpc.com website, beginning in November 2009.
9.

ISYS is senior user and the owner of the mark CHROMIUMPC for use in

connection with computer hardware. On June 21, 2010, ISYS filed United States Trademark
Application Serial No. 85/067977 for CHROMIUMPC for use in connection with computer
hardware including computer carrying cases, computer chassis, computer expansion boards,
computer

interface

boards,

computer

peripherals

Application”).

2

and

computers

(“CHROMIUMPC

10.

In November 2010, the Consumer Electronics Association, owner of the

International Consumer Electronics Show, announced that ISYS’ Xi3 Modular Computer was to
be recognized as a 2011 International CES Innovations Design and Engineering Award winner in
the computer hardware category.
11.

Images of the approximately 4” x 3½” Xi3 Modular Computer include:

12.

The Xi3 Modular Computer and other Xi3 Technology products thereafter

received rave reviews at the January 6-9, 2011 International Consumer Electronics Show in Las
Vegas, Nevada (“CES 2011”).
13.

A Business Wire New Release covering the CES 2011 show characterized the

impact of the Xi3 Technology as “Xi3 Corporation Rocks CES 2011.”
14.

A version of the Xi3 Modular computer is being branded and promoted as the

CHROMIUMPC computer.
15.

One example of the Xi3 CHROMIUMPC computer is depicted as follows:

3

16.

In 2008, Google initiated an open-source software development project named

Chromium. Google invited independent third parties to participate.
17.

This Chromium software initiative was for software development by third parties

for an internet operating system.
18.

During the second extension period, on May 11, 2011 Google announced a new

hardware product bearing the brand CHROMEBOOK.
19.

A term “PC” is a commonly used term for hardware products.

20.

The term “book” is a commonly used term for hardware products.

21.

The term “box” is a commonly used term for hardware products.

22.

The terms “pc,” “book” and “box” equally connote hardware products for

personal computers in the computer industry.

4

23.

Google’s conduct has caused and is causing immediate and irreparable harm to

Plaintiff and unless enjoined will continue to cause Plaintiff immediate and irreparable harm.
DATED this 6th day of June, 2011.

By:

5

s/Jason Sullivan
Jason Sullivan
President ISYS Technology and Xi3 Corp.