Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 1 of 35
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION
§ TRILLER, INC., § Case No. 6:20cv693 § Plaintiff, §
vs. § JURY TRIAL DEMANDED § BYTEDANCE LTD., BYTEDANCE INC., § TIKTOK INC., and TIKTOK PTE. LTD. § § Defendants. §
FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
Triller, Inc. (“Triller”) files its First Amended Complaint in this patent infringement action against Defendants ByteDance Ltd. (“BDL”), ByteDance Inc. (“BDI”), TikTok Inc. (“TTI”), and
TikTok Pte. Ltd. (“TTPL”), sometimes collectively referred to hereinafter as “Defendants.”
NATURE OF THE CLAIMS
1. This is an action for patent infringement. Triller alleges that BDL, BDI, TTI, and
TTPL infringe U.S. Patent No. 9,691,429 titled “Systems and methods for creating music videos synchronized with an audio track” (“the ’429 Patent,” attached as Exh. 1) (the “Asserted Patent”).
2. Triller is the developer and distributor of the innovative Triller social video platform application for iOS and Android. The Triller application is a leading entertainment platform built for creators in the social video community. The Triller application allows its users to create and share their own music video creations; its platform is built around innovative technology and intellectual property that provides users with the ability to create flawless, synchronized videos and to share those videos with other users in just seconds. Triller has invested enormous time and resources building its social platform and took particular care to protect its
1 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 2 of 35
intellectual property. Examples of Triller’s innovative platform and social video interface are
reproduced below:
• • •
Source: https://apps.apple.com/us/app/triller-social-video-platform/id994905763.
3. BDL, BDI, TTI, and TTPL directly and indirectly infringe the Asserted Patent by
making, using, offering for sale, selling, importing, and/or inducing others to use the popular iOS
and Android software application known as the “TikTok” app.
Source: https://apps.apple.com/lc/app/tiktok-make-your-day/id835599320
2 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 3 of 35
THE PARTIES
4. Plaintiff Triller, Inc. is a Delaware Corporation with offices in Los Angeles at 2121
Avenue of the Stars, Suite 2320, Los Angeles, CA 90067. Triller is the owner of the ’429 Patent.
5. On information and belief, BDL is a Cayman Islands corporation.
6. On information and belief, BDI is a Delaware corporation.
7. On information and belief, TTI is a California corporation.
8. On information and belief, TTPL is a Singapore corporation.
THE RELATIONSHIPS AMONG THE DEFENDANTS, THE TIKTOK APP,
TIKTOK USERS, AND THIS DISTRICT
9. BDL is the ultimate parent and owner of TTI, BDI, and TTPL.1
10. On information and belief, BDL controls the majority of the shares or other ownership units of TTI, BDI, and TTPL and controls or attempts to control the activities of each of them.
11. On information and belief, BDL shares common officers and/or directors with TTI.
For example, Vanessa Pappas has testified that she is the “head of TikTok, Inc. and interim head of the global TikTok business for ByteDance Ltd.,”2 and purports to speak on behalf of TTI and
BDL. Roland Cloutier has testified that he is the Global Chief Security Officer for TTI and that he provides cyber risk and data security support for both TTI and BDL, and purports to speak for
1 Exh. 2, https://www.bytedance.com/en/ 2 Exh. 3, Declaration of Vanessa Pappas, ¶ 1, in TikTok Inc. and ByteDance Ltd. v. Donald J. Trump and Wilbur L. Ross, Jr., Civil Case No. 20-cv-2658, U.S. District Court for the District of Columbia (hereinafter the “DC Litigation”), Dkt No. 15-3.
3 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 4 of 35
both.3 Erich Andersen is the Global General Counsel for BDL and TTI.4 On information and belief, BDL’s founder, Zhang Yiming is an officer or director, directly or through a surrogate, of each of the Defendants. On information and belief, Defendants share additional officers and employees.
12. BDL developed the TikTok app and operates and controls the TikTok app in the
United States through subsidiaries and affiliates such as TTI, BDI, and TTPL.5
13. BDL operates the TikTok app throughout the United States, including within this
District.6
14. On information and belief, BDL controls the general policies and administration of
TTI, BDI, and TTPL.
15. On information and belief, TTI, BDI, and/or TTPL are alter egos of BDL.
16. BDL is the owner of a number of U.S. trademark registrations and applications, including, but not limited to, registrations nos. 6069518, 5981213, 5981212, 5653614 and 5974902 and applications serial nos. 88386254, 88386243, and 88260950. All of these registrations and applications were filed in the name of BDL, all include variants of the “TikTok” name, and all claim use in commerce in the United States by BDL or by “[BDL’s] related company or licensee . . .”7
17. TTI, BDI, and TTPL all use the TikTok marks as agents for BDL in the
3 Exh. 4, Declaration of Roland Cloutier, Dkt No. 15-2, ¶¶ 1-3 from DC Litigation. Among other things, Mr. Cloutier testified that BDL personnel provide TTI engineering functions that allow BDL personnel to access encrypted TikTok user data. Id. at ¶¶ 10, 14. 4 Exh. 5, https://www.linkedin.com/in/erich-andersen-b001ba84/ 5 Exh. 6, Complaint, TikTok Inc. and ByteDance Ltd. v. Donald J. Trump et al., Civil Case No. 1:20-cv-2658, Dkt No. 1, ¶¶ 13, 20. See, also, https://support.tiktok.com/en/using-tiktok. 6 Id. ¶ 1 (“TikTok [is] a mobile software application that 100 million Americans use”), ¶ 13. 7 The registrations are attached hereto as Exhs. 7-11 and the applications are attached as Exhs. 12-14.
4 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 5 of 35
manufacture, sale, offer for sale, and/or use of the TikTok app and in the inducement of others to use the TikTok app, including in this District.
18. Through its agents TTI, BDI, and TTPL, BDL actively encourages and induces users to download and use the TikTok app according to instructions for such use made available to users by Defendants.
19. The TikTok app has been widely distributed in this District by BDL through its agents TTI and TTPL using the Apple and Android App stores. For example, in July 2020, Baylor
University announced that it had a TikTok account:8
20. In July 2020, San Antonio Magazine reported on a number of local teens who have become famous using TikTok.9 On September 1, 2020, MY SA reported on “5 TikTok accounts
8 Exh. 15 https://www2.baylor.edu/baylorproud/2020/07/introducing-baylors-tiktok-account-a- new-fun-way-to-engage-with-future-bears/. 9 Exh. 16 https://www.sanantoniomag.com/local-teens-seek-stardom-in-tiktok/.
5 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 6 of 35
to follow for San Antonio flavor.”10 Use of the TikTok app in this District is extensive.11
21. Use of the TikTok app in this District constitutes direct infringement of one or more of the claims of the ’429 patent.
22. TTI operates the TikTok app in the United States, including within this District.12
23. On July 8, 2020, the Apple App Store listed TTI as the seller of the TikTok app:13
10 Exh. 17, https://www.mysanantonio.com/guidetosa11/slideshow/5-local-TikTok-accounts-to- follow-for-SA-flavor-207992.php. 11 Exh. 18, https://allfamous.org/people/andre-swilley-19980516.html; Exh. 19, https://allfamous.org/people/owen-bodnar-20030729.html; Exh. 20, https://allfamous.org/people/damnitsriley-19971110.html; Exh. 21, https://allfamous.org/people/josh-horton-19900524.html; Exh. 22, https://allfamous.org/people/madison-harrelson-20010205.html; Exh. 23, https://allfamous.org/people/demetri-garcia-20001205.html. 12 Exh. 6, Complaint in DC Litigation, Dkt. No. 1, ¶¶ 1, 20. 13 https://web.archive.org/web/20200708064126if_/https://apps.apple.com/lc/app/tiktok-make- your-day/id835599320
6 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 7 of 35
24. Clicking on the “Privacy Policy” link on the July 8, 2020 archive.org copy of the
TikTok page on the Apple App Store” brings up a page stating that the TikTok app is provided and controlled by TTI and that references to “TikTok” are references to TTI:14
14 https://web.archive.org/web/20200708054104if_/https://www.tiktok.com/legal/privacy- policy?lang=en
7 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 8 of 35
25. On the same page as the “Privacy Policy” link, there is a link entitled “Terms of
Service.” Clicking on the “Terms of Service” link brings up another page which confirms that references to “TikTok” are references to TTI:15
26. The Terms of Service further provide that the Terms “form a legally binding agreement between you and [TTI],” that the user can access the TikTok app only in compliance
15 https://web.archive.org/web/20200708054107if_/https://www.tiktok.com/legal/terms-of- use?lang=en
8 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 9 of 35
with the Terms of Service, and that by using the TikTok app the user agrees to the Terms of
Service. The Terms of Service expressly grant the user the right to access and use the TikTok app.
Id.
27. TTI has provided the TikTok app to users in this District and has actively encouraged and induced them to use the app in this District by providing instructions on how to use the app.
28. Users in this District have used the TikTok app.
29. On information and belief, employees of TTI, acting in the course and scope of their employment, use and have used the TikTok app in this District.
30. In early 2020, TTI leased space in a building located at the South by Southwest
Center at 14th and Lavaca in Austin, Texas and had approximately 100 employees in that office.16
Blake Chandlee, who is an authorized corporate signatory for TTI, works out of the TTI Austin office. Id.
31. On or about August 8, 2020, Blake Chandlee, VP of TikTok (a/k/a TTI) Global
Business Solutions, stated:
We’re proud to build our presence in Austin and be a part of the thriving business and tech community locally. The Austin community embodies the same creative and entrepreneurial spirit that defines the TikTok community and we are going to do all we can to ensure our company’s future in Texas and the U.S. Our goal is to be here for years to come for our users, our creators and for the 1,500 people we currently employ in America, the 10,000 people we intend to hire here, including the hundreds of jobs we’re bringing to Austin.
Exh. 25 (emphasis added).17
16 Exh. 24, https://www.bizjournals.com/austin/news/2020/08/17/tiktok-austin-hiring-on- hold.html 17 Exh. 25, https://cbsaustin.com/news/local/tiktok-to-bring-hundreds-of-jobs-to-austin-despite- president-trumps-executive-order
9 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 10 of 35
32. On or about August 24, 2020, TTI and BDL (not BDI) filed a complaint in the
Central District of California seeking to enjoin President Trump’s ban on the TikTok app in the
United States.18 On the same day, TTI (not BDI) issued a press release stating that it had filed the California complaint, providing quotes from the California complaint, and stating that TTI was hiring employees throughout the United States, including in Texas:
Over the past few years, people of all backgrounds have embraced the TikTok community. Today, 100 million Americans turn to TikTok for entertainment, inspiration, and connection; countless creators rely on our platform to express their creativity, reach broad audiences, and generate income; our more than 1,500 employees across the US pour their hearts into building this platform every day, with 10,000 more jobs planned in California, Texas, New York, Tennessee, Florida, Michigan, Illinois, and Washington State; and many of the country's leading brands are on TikTok to connect with consumers more authentically and directly than they can elsewhere.19
33. “TikTok” a/k/a TTI has advertised to hire employees in Austin on the GlassDoor platform. Exh. 28a. As stated in TTI’s Terms of Service and consistent with TTI’s August 24 press release, “TikTok” refers to TTI. The TTI ads for “TikTok” employees on GlassDoor are separate from ads placed for “ByteDance” employees. Exh. 28b.
34. Likewise, “TikTok” has advertised to hire employees in Austin on the tiktok.com website. Exh. 29. As stated in TTI’s Terms of Service and consistent with TTI’s August 24 press release, “TikTok” refers to TTI. The TTI ads for “TikTok” employees are separate from ads placed for “ByteDance” employees on www.bytedance.com. Exh. 30.
35. Ramiro Sarabia, a TTI employee, states on his LinkedIn profile that he is the Brand
Partnerships Manager at TikTok, Inc. and that he is employed in Austin, Texas.20 Other
18 Exh. 26, TikTok Inc. and ByteDance Ltd. v. Donald J. Trump et al., Civil Case No. 2:20-cv- 7672, U.S. District Court for the Central District of California, Dkt No. 1. 19 Exh. 27, https://newsroom.tiktok.com/en-us/tiktok-files-lawsuit 20 Exh. 31, https://www.linkedin.com/in/ramsarabia/
10 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 11 of 35
individuals associated with TikTok characterize themselves as being employed by TikTok (TTI) and ByteDance. They do not state that they are employed by TikTok or BDI. For example, Blake
Chandlee refers to himself as the VP of Global Business Solutions “at ByteDance / TikTok.”21
Ashley Elizabeth Brown refers to herself as the “office administrator at ByteDance / TikTok.”22
TTI has asserted in this action that employees in the Austin office are BDI, not TTI employees, but those employees refer to themselves as “TikTok” employees, not BDI employees. See, Exh.
34. On information and belief, TTI employees perform services for BDI, and BDI employees perform services for TTI.
36. BDI and TTI create training videos, demonstrations, brochures, and user guides to instruct users how to use the TikTok app.23
37. TTI and BDI both support the TikTok app in the U.S.24
38. TTI and BDI are both responsible for developing, providing, and supporting the
TikTok app.25
39. Nicola Raghavan, who purports to be an employee of TTI, has filed a declaration in which she makes statements on behalf of both TTI and BDI.26
40. On November 15, 2019, TTI filed an Application for Registration of a Foreign For
Profit Corporation with the Texas Secretary of State. The Application was signed by Blake
Chandlee “subject to the penalties imposed by law for the submission of a materially false or
21 Exh. 32, https://www.linkedin.com/in/blakechandlee/ 22 Exh. 33, https://www.linkedin.com/in/ashley-elizabeth-brown-865110136/ 23 Exh. 35, First Amended Complaint, Dkt. No. 9, ¶ 5, ByteDance, Inc., TikTok, Inc., and TikTok Pte. Ltd. v. Triller, Inc., Case No. 3:20-cv-7572 (N.D. Cal). 24 Dkt. No. 26-2, Raghavan Decl., ¶¶ 3, 15. 25 Exh. 35, First Amended Complaint, Dkt. No. 9, ¶ 7, ByteDance, Inc., TikTok, Inc., and TikTok Pte. Ltd. v. Triller, Inc., Case No. 3:20-cv-7572 (N.D. Cal). 26 Dkt. No. 26-2, Raghavan Decl., ¶¶ 3, 10, 11, 12, 15, 16.
11 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 12 of 35
fraudulent instrument.” Chandlee “certifie[d] under penalty of perjury that [he] is authorized under the provisions of law governing the entity to execute the filing instrument.” Exh. 36.
41. On January 6, 2020, TTI filed a Certificate of Correction with the Texas Secretary of State, identifying and correcting certain errors in previous filings. The Certificate of Correction was signed by Blake Chandlee “subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument.” Chandlee “certifie[d] under penalty of perjury that
[he] is authorized under the provisions of law governing the entity to execute the filing instrument.” Exh. 37.
42. On August 14, 2020, TTI filed a Statement of Change of Registered Office / Agent with the Texas Secretary of State. The Statement of Change is signed by Zhao Liu, as president of TTI. Exh. 38.
43. On January 7, 2020, BDI filed an Application for Registration of a Foreign For
Profit Corporation with the Texas Secretary of State. That application names Zhao Liu as a director of BDI. Exh. 39. The Application was signed by Blake Chandlee “subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument.” Chandlee
“certifie[d] under penalty of perjury that [he] is authorized under the provisions of law governing the entity to execute the filing instrument.” Id.
44. On January 13, 2020, BDI filed a Certificate of Correction with the Texas Secretary of State, identifying and correcting certain errors in previous filings. The Certificate of Correction was signed by Blake Chandlee “subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument.” Chandlee “certifie[d] under penalty of perjury that
[he] is authorized under the provisions of law governing the entity to execute the filing instrument.” Exh. 40.
12 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 13 of 35
45. The January 13 Certificate of Correction lists Blake Chandlee and Zhao Liu as
“directors” of BDI. Id.
46. BDI has a regular and established place of business in this District.27
47. BDI “makes” the TikTok app.28
48. On information and belief, BDI actively encourages and induces users to use the
TikTok app with the intent that they will use the app according to instructions provided with the app.
49. On information and belief, BDI employees, acting in the course and scope of their duties as employees of BDI use and have used the TikTok app in its office in this District.
50. BDI has actively solicited the hiring of employees in this District as “ByteDance” employees through the GlassDoor platform and on the www.bytedance.com website. Exhs. 28b,
30. Such solicitations are separate from solicitations for “TikTok” employees. Exhs. 28a, 29.
51. On information and belief, TTI conducts operations out of the BDI offices and/or offices shared with BDI in Austin and therefore has a regular and established place of business in this District.
52. On information and belief, BDI is the agent and/or the alter ego of TTI.
53. As of the date of this First Amended Complaint, the Apple App Store lists TTPL, not TTI, as the seller of the TikTok app:29
27 Dkt. No. 26-2, Raghavan Decl., ¶ 11. 28 Exh. 34, First Amended Complaint, Dkt. No. 9, ¶ 23, ByteDance, Inc., TikTok, Inc. and TikTok Pte. Ltd. v. Triller, Inc., Case No. 3:20-cv-7572 (N.D. Cal). 29 https://apps.apple.com/us/app/tiktok-it-starts-with-you/id835599320
13 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 14 of 35
54. The TikTok page on the Apple App Store referenced above also includes a link entitled “Privacy Policy.”
55. Clicking on the “Privacy Policy” brings up a page stating that the TikTok app is provided and controlled by TTI and that references to “TikTok” are references to TTI:30
30 https://www.tiktok.com/legal/privacy-policy
14 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 15 of 35
56. The “Privacy Policy” page also includes a link for Terms of Service.”31
57. The “Terms of Service” page on the TikTok site confirms that the TikTok app is provided by TTI and that references to “TikTok” are references to TTTI:32
58. The Terms of Service further provide that they constitute an agreement between
TTI and the user, that the user can access the TikTok app only in compliance with the Terms of
Service, and that by using the TikTok app the user agrees to the Terms of Service. The Terms of
31 https://www.tiktok.com/legal/privacy-policy 32 https://www.tiktok.com/legal/terms-of-use?lang=en
15 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 16 of 35
Service expressly grant the user the right to access and use the TikTok app. Id.
59. Defendants provide instructions to TikTok users on how to use the app and its various features. See, e.g., https://support.tiktok.com/en/using-tiktok
60. On information and belief, TTPL has provided the TikTok app to users in this
District who have used the app in this District pursuant to instructions provided by TTPL.
JURISDICTION AND VENUE
61. This action for patent infringement arises under the Patent Laws of the United
States, 35 U.S.C. § 1 et. seq. This Court has original jurisdiction under 28 U.S.C. §§ 1331 and
1338.
62. By reason of its operation and control of the TikTok app and of TTI, BDI, and
TTPL, BDL has caused the TikTok app to be distributed in this District and has actively encouraged and induced users to use the app according to instructions provided by Defendants.
Additionally, BDL has, through its subsidiaries and agents TTI and TTPL, entered into contracts for the use of the TikTok app in this District, has regularly done and solicited business and has derived substantial revenue from the distribution and use of the TikTok app in this District. The conduct of BDL constitutes inducement of infringement and has resulted in the commission of a tort in this District. Additionally, BDL developed the TikTok app, placed the app in the stream of commerce, and acting in concert with TTI, TTPL, and BDI, caused the app to be distributed in this
District with the intent that it be used pursuant to the instructions provided by Defendants. BDL has therefore engaged in contacts with this District that satisfy the Texas Long Arm Statute, Tex.
Civ. Prac. & Rem. Code § 17.042. The exercise of personal jurisdiction over BDL is not unreasonable and does not offend traditional notions of fair play and substantial justice.
63. BDL is a foreign corporation, and venue is therefore proper in this District because
16 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 17 of 35
pursuant to 28 U.S.C. § 1391(c)(3), foreign defendants are subject to venue in any district in the
United States.
64. TTI has entered into contracts with residents of this District and by its active encouragement and inducement of infringement in this District has committed tortious acts in the
State of Texas. On information and belief, TTI has also committed acts of direct infringement by using the TikTok app in this District. TTI has therefore engaged in contacts with this District that satisfy the Texas Long Arm Statute, Tex. Civ. Prac. & Rem. Code § 17.042. The exercise of personal jurisdiction over TTI is not unreasonable and does not offend traditional notions of fair play and substantial justice.
65. TTI has committed acts of infringement in this District and has a regular and established place of business in this District, either directly or through its agent BDI. Venue is therefore proper over TTI pursuant to 28 U.S.C. § 1400(b).
66. BDI has committed tortious acts in this District by actively encouraging and inducing users to use the TikTok app pursuant to instructions accompanying the app. On information and belief, BDI has also committed acts of direct infringement by using the TikTok app in this District. BDI has therefore engaged in contacts with this District that satisfy the Texas
Long Arm Statute, Tex. Civ. Prac. & Rem. Code § 17.042. The exercise of personal jurisdiction over BDI is not unreasonable and does not offend traditional notions of fair play and substantial justice.
67. BDI not only has committed acts of infringement within this District but also has a regular and established place of business in this District. Venue is therefore proper over BDI pursuant to 28 U.S.C. § 1400(b).
68. TTPL has entered into contracts with residents of this District and by its active
17 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 18 of 35
encouragement and inducement of infringement in this District has committed tortious acts in the
State of Texas. TTPL has therefore engaged in contacts with this District that satisfy the Texas
Long Arm Statute, Tex. Civ. Prac. & Rem. Code § 17.042. The exercise of personal jurisdiction over TTPL is not unreasonable and does not offend traditional notions of fair play and substantial justice.
69. TTPL is a foreign corporation, and venue is therefore proper in this District because foreign defendants are subject to venue in any district in the United States pursuant to 28
U.S.C. § 1391(c)(3).
FIRST CLAIM FOR RELIEF
INDUCEMENT OF INFRINGEMENT OF U.S. PATENT NO. 9,691,429
70. Triller incorporates all of the allegations of all of the preceding paragraphs of this
Complaint as if fully set forth herein.
71. On June 27, 2017, the’429 Patent, titled “Systems and methods for creating music videos synchronized with an audio track” duly and legally issued. A true and correct copy of the
’429 Patent is attached as Exh. 1.
72. Triller is the owner of the ’429 Patent.
73. Pursuant to 35 U.S.C. § 282, the ’429 Patent is presumed valid.
74. On July 27, 2020, Triller sent BDL and TTI a copy of the ’429 patent and notice of its infringement of that patent to [email protected]. That notice and the Complaint in this action put BDL and TTI, as well as BDI and TTPL through their agents, on notice of the existence of the
’429 patent and the fact that they infringe the ’429 patent. By reason of the Complaint and this
First Amended Complaint, BDI and TTPL have received additional notice of the existence of the
’429 patent and the fact that they infringe the ’429 patent.
18 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 19 of 35
75. Defendants make, use, offer for sale, distribute, and/or sell in the United States and/or import into the United States the TikTok app and related software products that provide
TikTok users with social video platform services to create and distribute music videos. Such software products are available for iOS and Android hand-held or tablet devices and are distributed under the TikTok brand name (the “TikTok app” or “Accused Product”), as shown below:
Source: https://apps.apple.com/lc/app/tiktok-make-your-day/id835599320 (Exh. 41).
76. The TikTok app is described by Defendants as follows:
TikTok is THE destination for mobile videos. On TikTok, short-form videos are exciting, spontaneous, and genuine. Whether you’re a sports fanatic, a pet enthusiast, or just looking for a laugh, there’s something for everyone on TikTok. All you have to do is watch, engage with what you like, skip what you don’t, and you’ll find an endless stream of short videos that feel personalized just for you. From your morning coffee to your afternoon errands, TikTok has the videos that are guaranteed to make your day.
We make it easy for you to discover and create your own original videos by providing easy-to-use tools to view and capture your daily moments. Take
19 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 20 of 35
your videos to the next level with special effects, filters, music, and more.
■ Watch endless amount of videos customized specifically for you
A personalized video feed based on what you watch, like, and share. TikTok offers you real, interesting, and fun videos that will make your day.
■ Explore videos, just one scroll away
Watch all types of videos, from Comedy, Gaming, DIY, Food, Sports, Memes, and Pets, to Oddly Satisfying, ASMR, and everything in between.
■ Pause recording multiple times in one video
Pause and resume your video with just a tap. Shoot as many times as you need.
■ Be entertained and inspired by a global community of creators
Millions of creators are on TikTok showcasing their incredible skills and everyday life. Let yourself be inspired.
■ Add your favorite music or sound to your videos for free
Easily edit your videos with millions of free music clips and sounds. We curate music and sound playlists for you with the hottest tracks in every genre, including Hip Hop, Edm, Pop, Rock, Rap, and Country, and the most viral original sounds.
■ Express yourself with creative effects
Unlock tons of filters, effects, and AR objects to take your videos to the next level.
■ Edit your own videos Our integrated editing tools allow you to easily trim, cut, merge and duplicate video clips without leaving the app.
Source: https://apps.apple.com/lc/app/tiktok-make-your-day/id835599320 (Id.).33
77. Upon information and belief, use of the TikTok app infringes at least claims 1, 3,
33 This description appeared at the referenced link in July 2020 when TTI was listed as the “seller” of the TikTok app.
20 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 21 of 35
4, 5, 6, and 7 of the ’429 Patent in at least the exemplary manner described below.
78. As for claim 1, the TikTok app provides “A method for creating a music video in which a plurality of video takes is synchronized to an audio track,” as shown in the screenshots below.
79. As for claim 1, the TikTok app provides for “selecting an audio track” as shown below, which allow for the selection of an audio track via the “sounds” menu.
21 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 22 of 35
80. As for claim 1, the TikTok app provides for “capturing a plurality of video takes” as shown in the screenshots below, by selecting the red “record” button.
22 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 23 of 35
81. The TikTok app further provides for the selection of prior video takes, as shown in the screenshots below, by selecting the “Green Screen Video” effect option.
82. Introduced on or about December 11, 2019 (see Exh. 42) the TikTok app “Green
Screen Video” effect option allows users to shoot multiple video takes synchronized to an audio track. Defendants describe the feature in a blog post (id., available at https://newsroom.tiktok.com/en-us/new-green-screen-video-effect-puts-users-at-the-center-of- the-action) as follows:
Due to the popularity of the Green Screen effect, we recently introduced a new, evolved version of this effect - Green Screen Video. For the first time ever on any mobile video platform, users are able shoot over videos playing in the background. Users can trim up to 60 seconds of a select video from their phone's video album.
(See Exh. 42 at 1).
83. As for claim 1, the TikTok app provides for “synchronizing each video take of the
23 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 24 of 35
plurality of captured video takes with the selected audio track while each video take of the plurality of video takes is being captured, wherein synchronizing further comprises playing, from a first beginning, the selected audio track at substantially the same time as a second beginning of capturing each video take of the plurality of video takes” through its “Green Screen Video” effect, which permits the user to synchronize each video take with the selected audio track while each video take of the plurality of video takes is being captured. The user screenshots below from
TikTok user rhia.official show the synchronized video takes with the selected audio track, as per claim 1:
Source: https://www.tiktok.com/@rhia.official/video/6846437398528691462, https://www.tiktok.com/@rhia.official/video/6827511388198440198
84. As for claim 1, the TikTok app provides for “wherein synchronizing further comprises playing, from a first beginning, the selected audio track at substantially the same time
24 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 25 of 35
as a second beginning of capturing each video take of the plurality of video takes” as instructed in the TikTok “Green Screen Video” tutorial, and shown in the exemplary user content above. (See also, Exh. 42).
85. As for claim 1, the TikTok app further provides for “creating a music video comprising: the selected audio track; and at least a subset of the plurality of video takes comprising at least two video takes of the plurality of video takes synchronized with the selected audio track,” as shown in the example user content below:
Source: https://www.tiktok.com/@rhia.official/video/6846437398528691462
86. As for claim 3, the TikTok app provides for “wherein the plurality of video takes are captured using a user device” such as an iPad or an iPhone.
25 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 26 of 35
87. As for claim 4, the TikTok app provides for “[t]he method of claim 3, wherein the user device comprises at least one image capturing component,” such as an iPad or an iPhone, which includes at least one image capturing component including a built-in digital camera.
26 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 27 of 35
Source: https://www.apple.com/iphone-11-pro/
88. The exemplary user device (e.g., iPhone 11) product information page shows that the product contains a camera system:
Source: https://www.apple.com/iphone-11-pro/
89. As for claim 5, the TikTok app provides for “extracting portions of each take of the plurality of captured video takes to be used for sections of the selected audio track, the extracted
27 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 28 of 35
portions forming the subset of the plurality of video takes” as shown in the following exemplary user content created using the Green Screen Video effect, and consistent with the instructions provided by TikTok (see, Exh. 42):
Source: https://www.tiktok.com/@rhia.official/video/6846437398528691462
90. As for claim 6, the TikTok app provides for “wherein the audio track is stored on at least one of: a user device; a music server; and an external device,” as shown below:
28 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 29 of 35
91. For example, the image on the left above shows available audio tracks when the user device is connected to a music server through a network connection; however, the image on the right shows no audio tracks available when the device is not connected to a music server through a network connection (the network connection has been disabled).
92. As for claim 7, the TikTok app provides for “playing the selected audio track while each video take of the plurality of video takes is captured” as shown below:
93. The highlighted portion of the image above shows progress where the TikTok app
“play[s] the selected audio track while each video take of the plurality of video takes is captured.”
The audio track is played during the capture of video in the TikTok app.
94. As for claim 8, the TikTok app provides for “determining the amount of time of the selected audio track to be used” as shown below:
29 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 30 of 35
95. A user may select an audio track via the “sounds” menu, and the amount of time of the selected audio track is determined based on user input:
30 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 31 of 35
96. BDL, TTI, BDI, and TTPL have induced and continue to induce users of the TikTok app to directly infringe at least claim 1 of the ’429 patent by distributing the TikTok app, distributing instructions for use of the app, providing video and other tutorials on how to use the app, and by promoting the downloading and use of the app in the United States, including within this District. Defendants also instruct users of the TikTok app to infringe through training videos, demonstrations, brochures, and user guides, such as the attached Exh. 42.
97. Defendants know and have known that the acts they induce and have induced (use of the TikTok app) constitute infringement of at least claim 1 of the ’429 patent by users of the
TikTok app. Alternatively, on information and belief, Defendants were willfully blind to the existence of the ’429 patent and the fact that their acts induced direct infringement of that patent.
Defendants are liable for infringement of the ’429 Patent under 35 U.S.C. § 271(b).
98. Defendants’ inducing infringement has caused and continues to cause damage to
Triller. Triller is therefore entitled to recover damages sustained as a result of TikTok’s wrongful acts in an amount that is proven at trial.
99. Defendants have willfully infringed and continue to willfully infringe the ’429
Patent with knowledge of the ’429 Patent or were willfully blind to the Patent and the risk of infringement.
100. Defendants’ infringement of the ’429 Patent has caused and continues to cause irreparable harm to Triller.
101. As a result of Defendants’ past and ongoing infringement, Triller is entitled to injunctive relief.
31 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 32 of 35
SECOND CLAIM FOR RELIEF
CONTRIBUTORY INFRINGEMENT OF U.S. PATENT NO. 9,691,429
102. Triller incorporates all of the allegations of all of the preceding paragraphs of this
Complaint as if fully set forth herein.
103. On information and belief, TTI, TTPL, BDI, and BDL, through its agents and/or alter egos TTI, TTPL and/or BDI, sell, offer to sell, and/or import or have sold, offered to sell, and/or imported into the United States the TikTok app.
104. The TikTok app, or at least a portion thereof, constitutes a material or apparatus for use in practicing the method of at least claim 1 of the ’429 patent, constitutes a material part of the invention of at least claim 1 of the ’429 patent, is especially made or especially adapted for use in infringement of at least claim 1 of the ’429 Patent, and is not a staple article or commodity of commerce suitable for substantial non-infringing use.
105. Use of the TikTok app, or at least a portion thereof, constitutes direct infringement of at least claim 1 of the ’429 patent, as set forth above.
106. Defendants know that the method for which the TikTok app is being used is patented in the ’429 patent and that such use infringes at least claim 1 of the ’429 patent, as set forth above.
107. Defendants are contributory infringers of one or more of the claims of the ’429 patent under 35 U.S.C. § 271(c).
108. Defendants’ contributory infringement has caused and continues to cause damage to Triller. Triller is therefore entitled to recover damages sustained as a result of TikTok’s wrongful acts in an amount that is proven at trial.
109. Defendants have willfully infringed and continue to willfully infringe the ’429
32 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 33 of 35
Patent with knowledge of the ’429 Patent or were willfully blind to the Patent and the risk of infringement.
110. Defendants’ infringement of the ’429 Patent has caused and continues to cause irreparable harm to Triller.
111. As a result of Defendants’ past and ongoing infringement, Triller is entitled to injunctive relief.
THIRD CLAIM FOR RELIEF
DIRECT INFRINGEMENT OF U.S. PATENT NO. 9,691,429
112. Triller incorporates all of the allegations of all of the preceding paragraphs of this
Complaint as if fully set forth herein.
113. On information and belief, BDI and TTI, as well as BDL through its agents and alter egos, use the TikTok app in the United States, including in this District, and have thereby directly infringed at least claim 1 of the ’429 patent.
114. Upon information and belief, BDI, TTI, and BDL have infringed and continue to infringe the ’429 Patent through other software versions and device implementations utilizing the same or reasonably similar functionality, including other versions of the TikTok app.
115. The direct infringement by BDI, TTI, and BDL has caused and continues to cause damage to Triller. Triller is therefore entitled to recover damages sustained as a result of these wrongful acts in an amount that is proven at trial.
116. BDI, TTI, and BDL have willfully infringed and continue to willfully infringe the
’429 Patent with knowledge of the ’429 Patent or were willfully blind to the Patent and the risk of infringement.
117. The infringement by BDI, TTI, and BDL of the ’429 Patent has caused and
33 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 34 of 35
continues to cause irreparable harm to Triller.
118. As a result of the past and ongoing infringement by BDI, TTI, and BDL, Triller is entitled to injunctive relief.
PRAYER FOR RELIEF
WHEREFORE, Triller respectfully prays that the Court enter judgment in its favor and against Defendants as follows:
a. A judgment that each of the Defendants has infringed one or more claims of the
’429 Patent literally and/or under the doctrine of equivalents directly and/or indirectly by inducing infringement and/or by contributory infringement;
b. An award of damages pursuant to 35 U.S.C. § 284;
c. Entry of an injunction against further infringement of the ’429 Patent;
d. A finding of willfulness;
e. A judgment that this is an exceptional case pursuant to 35 U.S.C. § 285;
f. An award of reasonable attorneys’ fees in this action;
g. An award of pre and post-judgment interest on its damages;
h. An award of costs; and
i. Any such other and further relief as the Court deems proper.
DEMAND FOR JURY TRIAL
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Triller demands a trial by jury for all issues so triable.
Date: November 24, 2020 /s/ Brian N. Platt Brian N. Platt (pro hac vice) Utah State Bar No. 17099 Brent P. Lorimer (pro hac vice) Utah State Bar No. 3731
34 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 35 of 35
WORKMAN NYDEGGER 60 East South Temple Suite 1000 Salt Lake City, Utah 84111 (801) 533-9800 (main line) (801) 328-1707 (facsimile) [email protected] [email protected]
Wesley Hill Texas Bar No. 24032294 Andrea L. Fair Texas Bar No. 24078488 WARD, SMITH & HILL, PLLC 1507 Bill Owens Parkway Longview, Texas 75604 (903) 757-6400 (main line) (903) 757-2323 (facsimile) [email protected] [email protected] Attorneys for Plaintiff Triller, Inc.
35