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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
FLEXIJET TECHNOLOGIES, INC.,
Plaintiff, Civil Action No. 2:18-CV-00034-JRG v. JURY TRIAL DEMANDED MAGICJACK VOCALTEC LTD.,
Defendant.
FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
Plaintiff FlexiJet Technologies, Inc. (“FlexiJet”) files this First Amended Complaint against Defendant magicJack VocalTec Ltd (“Defendant” or “magicJack”) for infringement of
U.S. Patents Nos. 8,296,757, 8,533,352, 8,595,717, 9,043,482, and 9,116,723, and hereby allege as follows:
NATURE OF THE ACTION
1. This is an action for patent infringement arising under the Patent Laws of the
United States, 35 U.S.C. §§ 1, et seq.
PARTIES
2. Plaintiff FlexiJet Technologies, Inc. is a Texas corporation with a place of business
located at 5851 Legacy Circle, Suite 600, Plano, Texas 75024. FlexiJet is a pioneering
technology development firm that develops IP solutions for critical functionalities to portable
communication devices, AutoRun applications and chipsets, voice communication software, and
much more. Flexiworld was the first company to develop integrated circuits with autorun
software using FlexiJet technology. More information about Flexiworld can be found at
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http://flexiwave.com/index.htm. FlexiJet Technologies Inc. is the assignee of Flexiworld’s
patents and trademark associated with FlexiJet’s devices and AutoRun applications for licensing
to the industry.
3. Upon information and belief, Defendant magicJack VocalTec Ltd. is an Israeli
corporation having a place of business at 12 Haomanut Street, 2nd Floor, Poleg Industrial Zone,
Netanya, Israel 42504. Defendant has a place of business in this district at 400 Chisholm Pl.
#100, Plano, TX, 75075, and can be served through its registered agent, Corporation Service
Company d/b/a/ CSC – Lawyers Incorporated, 211 E. 7th Street, Suite 620, Austin, TX 78701.
https://www.collincad.org/propertysearch?prop=2700105&year=2018.
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JURISDICTION AND VENUE
4. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a).
5. Defendant is subject to this Court’s specific and general personal jurisdiction due to their substantial business in this forum. For example, upon information and belief, Defendant is subject to the specific personal jurisdiction of this Court because FlexiJet’s claims for patent infringement arise from Defendant’s acts of infringement in the State of Texas. These acts of infringement include selling infringing products in the State of Texas and placing infringing products into the stream of commerce through an established distribution channel with full awareness that substantial quantities of the products have been shipped into the State of Texas.
Therefore, this Court has personal jurisdiction over Defendant under the Texas long-arm statute,
TEX. CIV. PRAC. & REM. CODE § 17.042.
6. Venue is proper in this judicial district under 28 U.S.C. § 1400(b). According to
Defendant’s Security and Exchange Commission filings, Defendant has a regular and established place of business in this District at which it conducts research and development:
magicJack VocalTec Ltd Form 10-Q for Quarter ending September 30, 2017, p. 8.
7. Further, magicJack VocalTec Ltd., a foreign corporation, can be sued in any district, including this District. See Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406
U.S. 706, 714 (1972) (discussed in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S.
Ct. 1514, 1520, n.2 (2017)).
PATENTS-IN-SUIT
8. FlexiJet is the owner and the assignee of U.S. Patent No. 8,296,757 (the
“`757 Patent”), entitled “Copy Protection of Software and/or Data” and FlexiJet holds the
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exclusive right to license the `757 Patent. FlexiJet has ownership of all substantial rights in the
`757 Patent, including the right to exclude others and to enforce, sue and recover damages for
past and future infringement. A true and correct copy of the `757 Patent is attached as Exhibit A.
9. The `757 Patent is valid, enforceable and was duly issued in full compliance with
Title 35 of the United States Code.
10. FlexiJet is the owner and assignee of U.S. Patent No. 8,533,352 (the
“`352 Patent”), entitled “Method for Internet Access and for Communication” and FlexiJet holds
the exclusive right to license the `352 Patent. FlexiJet has ownership of all substantial rights in
the `352 Patent, including the right to exclude others and to enforce, sue and recover damages for
past and future infringement. A true and correct copy of the `352 Patent is attached as Exhibit B.
11. The `352 Patent is valid, enforceable and was duly issued in full compliance with
Title 35 of the United States Code.
12. FlexiJet is the owner and assignee of U.S. Patent No. 8,595,717 (the
“`717 Patent”), entitled “Memory Controller that Includes Support for Autorun of Software or
Data” and FlexiJet holds the exclusive right to license the `717 Patent. FlexiJet has ownership of all substantial rights in the `717 Patent, including the right to exclude others and to enforce, sue and recover damages for past and future infringement. A true and correct copy of the `717 Patent is attached as Exhibit C.
13. The `717 Patent is valid, enforceable and was duly issued in full compliance with
Title 35 of the United States Code.
14. FlexiJet is the owner and the assignee of U.S. Patent No. 9,043,482 (the
“`482 Patent”), entitled “Portable Communication Device for Providing Phone Calling Service” and FlexiJet holds the exclusive right to license the `482 Patent. FlexiJet has ownership of all
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substantial rights in the `482 Patent, including the right to exclude others and to enforce, sue and recover damages for past and future infringement. A true and correct copy of the `482 Patent is attached as Exhibit D.
15. The `482 Patent is valid, enforceable and was duly issued in full compliance with
Title 35 of the United States Code.
16. FlexiJet is the owner and the assignee of U.S. Patent No. 9,116,723 (the
“`723 Patent”), entitled “Communication Device or Media Device for Providing Phone Calling
Service, Internet Access Service, or Digital Content Service” and FlexiJet holds the exclusive right to license the `723 Patent. FlexiJet has ownership of all substantial rights in the `723 Patent, including the right to exclude others and to enforce, sue and recover damages for past and future infringement. A true and correct copy of the `723 Patent is attached as Exhibit E.
17. The `723 Patent is valid, enforceable and was duly issued in full compliance with
Title 35 of the United States Code.
18. The `757, `352, `717, `482 and `723 Patents are collectively the “Patents-in-Suit.”
19. The Patents-in-Suit generally cover communication devices and media devices that contain autorun software that supplies service such as phone calling, internet access, or digital content service.
ACCUSED PRODUCTS
20. Upon information and belief, Defendant makes, uses, offers to sell, sells, and/or imports integrated circuit voice over internet protocol (VoIP) devices that provide phone service to customers at their home, enterprise, or while traveling. Such products include, but are not limited to: the magicJack GO, the magicJack Express, and magicJack Plus. These products, and
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any of Defendant’s other similar products, are collectively referred to herein as the “Accused
Products.”
21. Upon information and belief, the Accused Products are offered for sale and sold
throughout the United States, including within this District.
22. Upon information and belief, Defendant has purposefully and voluntarily placed
the Accused Products into the stream of commerce with the expectation that these products will
be purchased and used by end users in the United States, including end users in this District.
23. Upon information and belief, Defendant provides direct and indirect support
concerning the Accused Products to end users, including end users within this District.
COUNT I INFRINGEMENT OF U.S. PATENT NO. 8,296,757
24. FlexiJet alleges and hereby incorporates by reference every allegation made in the
foregoing paragraphs of this First Amended Complaint as if each were separately set forth
herein.
25. In violation of 35 U.S.C. § 271, Defendant has directly infringed and continues to
directly infringe, both literally and/or under the doctrine of equivalents, the `757 Patent by
making, using, offering for sale, selling, and/or importing the Accused Products in the United
States, including within this District, that infringe at least claim one of the `757 Patent without
the authority of FlexiJet.
26. The Claims of the `757 Patent are presumed valid.
27. Each of the Accused Products is a portable memory device connectable by a user to a host computing device. For example, the representative magicJack Express is a device that can be plugged into a personal computer or laptop.
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28. Each of the Accused Products enables a user to run protected software. For example, the representative magicJack Express provides phone calling software that cannot be copied by the user.
29. Each of the Accused Products has a controller for controlling interaction between the integrated circuit memory device and the personal computer or laptop that the device is connected to. For example, the representative magicJack Express has a microcontroller (MCU) or digital signal processor (DSP) that can be seen in the following image:
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The host computing device interface is further described as:
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http://files.shareholder.com/downloads/ABEA-4X2RRR/0x0x605678/882b7e35-92a8-44dd-
87d9-2422b5713af0/CALL_News_2012_3_21_General_Releases.pdf.
30. Each of the Accused Products has a memory component that includes a protected memory component storing at least part of the protected software that is installable or executable on the host computing device. As shown in the picture below, the representative magicJack device has a Winbond flash memory chip that presumably stores the internal software and drivers.
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.
31. Each of the Accused Products has software or data stored in the protected
memory component that cannot be accessed and copied by the user. For example, the
representative magicJack device identified itself as a CD drive to the operating system as can be
seen here:
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The software and data on this “CD Drive” are protected because trying to access that data yields
this result indicating the data is unavailable:
32. Each of the Accused Products has autorun software stored on the memory device
and executable on the host computing device upon connection and activation of the portable
memory device to the host computing device. As shown in the picture below, the representative
magicJack device is recognized as a CD Drive the first time it is connected to a computer. The
computer displays a pop-up window allowing the running of magicJack software. The
magicJack software when executed enables phone calling functionality using its phone calling
software component while the magicJack device is connected to the computer.
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33. The autorun software stored on each Accused Product has software for running automatically on the host computing device upon connection of the portable memory device. As shown in the picture below, the representative magicJack device has autorun software that runs when the device is plugged into the host computer.
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34. The autorun software stored on each Accused Products accesses at least part of
the protected software or data from the protected memory component of the portable memory
device. For example, the representative magicJack device must be plugged into the host
computer in order for the host computer to make phone calls as shown below.
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35. The autorun software stored on each Accused Products authenticates the autorun
software before allowing access to the protected memory component of the portable memory
device. For example, the representative magicJack device verifies that it is installed with host
software in order to permit the host software to make calls as shown below.
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36. The autorun software stored on each Accused Products installs, executes, or runs
on the host computer at least part of the protected software accessed from the protected memory
component of the portable memory device. For example, the representative magicJack device
installs a magicJack application on the host computer as shown in the following image:
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37. The autorun software stored on each Accused Products enables the operating,
running, or executing of the protected software when the device is connected to the host. For
example, the representative magicJack device runs software when the device is installed as
shown here:
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38. The autorun software stored on each Accused Products prevents access to the
protected memory component for at least part of the protected software or data in the device. For
example, the files on the representative magicJack device are inaccessible as shown below.
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39. Accordingly, Defendant has and continues to directly infringe the `757 Patent,
both literally and/or under the doctrine of equivalents, in violation of 35 U.S.C. § 271(a) by
making, using, offering for sale, selling, and/or importing into the United States the Accused
Products without the authority of FlexiJet.
40. Defendant has been on notice of the `757 Patent since at least filing of the
Complaint in this case. See Script Sec. Sols. L.L.C. v. Amazon.com, Inc., 170 F. Supp. 3d 928,
937 (E.D. Tex. 2016). Since that time, upon information and belief, Defendant has not changed,
modified, or reengineered the Accused Products. Instead, Defendant has continued to willfully,
wantonly, and deliberately engage in acts of infringement of the ’757 Patent permitting increased
damages under 35 U.S.C. § 284, and attorneys’ fees and costs incurred under 35 U.S.C. § 285.
41. In violation of 35 U.S.C. § 271(b), Defendant has indirectly infringed the `757
Patent by inducing their customers to directly infringe the `757 Patent, both literally and/or under
the doctrine of equivalents, at least by providing their customers with instructions on using the
Accused Products and by making, using, offering for sale, selling, and/or importing devices in
the United States the Accused Products without the authority of FlexiJet. For example, the
representative magicJack’s packaging instructs users to plug the product into a USB port on their
computer:
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https://fccid.io/Y79K1103/User-Manual/Users-Manual-2256038.
42. Upon information and belief, and in violation of 35 U.S.C. § 271(b), Defendant
has indirectly infringed the `757 Patent by contribution knowing that the Accused Products
would be combined with other components to infringe the `757 Patent and that the Accused
Products have no substantial non-infringing use.
43. Unless enjoined by this Court, Defendant will continue to infringe the `757
Patent.
44. Because of Defendant’s infringing activities, FlexiJet has suffered damages and
will continue to suffer damages in the future.
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COUNT II INFRINGEMENT OF U.S. PATENT NO. 8,533,352
45. FlexiJet alleges and hereby incorporates by reference every allegation made in the
foregoing paragraphs of this First Amended Complaint as if each were separately set forth
herein.
46. The `352 Patent is presumed valid.
47. In violation of 35 U.S.C. § 271, Defendant has directly infringed and continues to directly infringe, both literally and/or under the doctrine of equivalents, the `352 Patent by making, using, offering for sale, selling, and/or importing the Accused Products in the United
States, including within this District, that infringe at least claim one of the `352 Patent without the authority of FlexiJet.
48. The Accused Products are portable communication devices that are used for phone calling. For example, the representative magicJack device is a USB device for phone calling:
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49. The Accused Products each have a USB interface for plug connecting to an external
USB port of a first computing device. For example, as shown below, the representative
magicJack device has a USB interface that plugs into a host computer.
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50. Each Accused Product has a memory component that includes a private memory
area, the private memory area not accessible to a user of the portable communication device. For
example, the representative magicJack device has a Winbond memory chip as shown below.
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The representative magicJack device has memory that is not accessible to the user as shown in
the following image.
51. Each Accused Products has a protected software component stored in the private
memory area of the portable communication device for executing at the first computing device.
For example, the representative magicJack device installs a magicJack software application onto
the host computer:
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52. Each Accused Product has a public memory area that is accessible to the user of
the portable communication device, and the public memory area of the portable communication
device stores at least a pointer to an executable related to a phone calling software for facilitating
installation and or running of the phone calling software. For example, the representative
magicJack device has an autorun file that can be accessed by the host computer:
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53. Each Accused Product has at least one controller having a means for managing
communication through the USB interface of the portable communication device. For example,
the representative magicJack device has a MCU/DSP which is the only controller visible on the
device circuit board and, upon information and belief, manages communications through the
USB interface of the magicJack device.
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54. Each Accused Product has at least one controller having a means for accessing the
private memory area. For example, the representative magicJack device has a MCU/DSP which
is the only controller visible on the device circuit board and, upon information and belief,
provides access to the magicJack software stored in the private memory area of the magicJack
device.
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55. Each Accused Product draws power to the portable communication device over the USB interface from the first computing device for operating the portable communication device upon plug connecting the portable communication device to the first computing device.
For example, the representative magicJack device has numerous circuit components that require power that must be drawn over the USB interface.
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56. Each Accused Product accesses the protected software component from the
private memory area of the portable communication device by the one or more controllers of the
portable communication device while the portable communication device is plug connected to
the first computing device. For example, the representative magicJack device is the source of
the software that is installed by magicJack, but is not otherwise visible:
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57. Each Accused Product provides over the USB interface of the portable
communication device to the first computing device at least part of the protected software
component by the one or more controllers while the portable communication device is plug
connected to the external USB port of the first computing device. For example, the
representative magicJack device provides the software for installation on the host computing
device as shown:
58. Each Accused Product facilitates at least part of an installing or a running of at
least part of the phone calling software at the first computing device employing at least in part
the pointer to the executable related to the phone calling software stored in the public memory
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area of the portable communication device, the phone calling software running at the first
computing device receiving over the USB Interface the at least part of the protected software
component accessed from the private memory area of the portable communication device by the
one or more controllers. For example, the representative magicJack device has an accessible
autorun file that installs the phone calling software over the USB interface as shown below.
The representative magicJack device further provides protected software components to the host application as can be seen in the image below:
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59. Each Accused Product enables phone calling from the first computing device to a
second computing device by the phone calling software, while the portable communication
device is plug connected to the external USB port of the first computing device, the second
computing device being a distinct device from the portable communication device and the first
computing device. For example, the representative magicJack device has the capability of
calling a second computing device such as another magicJack device user.
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60. Each Accused Product further functions as a security key for enabling phone
calling from the first computing device when the portable communication device is plug
connected to the first computing device. For example, the representative magicJack device host
computer software displays the following error message if the representative magicJack device is
not installed:
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61. Accordingly, Defendant has and continues to directly infringe the `352 Patent,
both literally and/or under the doctrine of equivalents, in violation of 35 U.S.C. § 271(a) by
making, using, offering for sale, selling, and/or importing into the United States the Accused
Products without the authority of FlexiJet.
62. Defendant has been on notice of the `352 Patent since at least the filing of the
Complaint in this case. See Script Sec. Sols. L.L.C. v. Amazon.com, Inc., 170 F. Supp. 3d 928,
937 (E.D. Tex. 2016). Since that time, upon information and belief, Defendant has not changed,
modified, or reengineered the Accused Products. Instead, Defendant has continued to willfully,
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wantonly, and deliberately engage in acts of infringement of the ’352 Patent permitting increased
damages under 35 U.S.C. § 284, and attorneys’ fees and costs incurred under 35 U.S.C. § 285.
63. In violation of 35 U.S.C. § 271(b), Defendant has indirectly infringed the `352
Patent by inducing their customers to directly infringe the `352 Patent, both literally and/or under
the doctrine of equivalents, at least by providing their customers with instructions on using the
Accused Products and by making, using, offering for sale, selling, and/or importing devices in
the United States the Accused Products without the authority of FlexiJet. For example, the
representative magicJack’s packaging instructs users to plug the product into a USB port on their
computer:
https://fccid.io/Y79K1103/User-Manual/Users-Manual-2256038.
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64. Upon information and belief, and in violation of 35 U.S.C. § 271(b), Defendant
has indirectly infringed the `352 Patent by contribution knowing that the Accused Products
would be combined with other components to infringe the `352 Patent and that the Accused
Products have no substantial non-infringing use.
65. Unless enjoined by this Court, Defendant will continue to infringe the `352
Patent.
66. Because of Defendant’s infringing activities, FlexiJet has suffered damages and
will continue to suffer damages in the future.
COUNT III INFRINGEMENT OF U.S. PATENT NO. 8,595,717
67. FlexiJet alleges and hereby incorporates by reference every allegation made in the
foregoing paragraphs of this First Amended Complaint as if each were separately set forth
herein.
68. In violation of 35 U.S.C. § 271, Defendant has directly infringed and continues to
directly infringe, both literally and/or under the doctrine of equivalents, the `717 Patent by
making, using, offering for sale, selling, and/or importing the Accused Products in the United
States, including within this District, that infringe at least claim ten without the authority of
FlexiJet.
69. The claims of the `717 Patent are presumed valid.
70. Each of the Accused Products is an integrated circuit memory device that
performs an autorun method on a host computing device for running selected software or data
using an integrated circuit memory that is connectable by a user to an external port of the host
computing device. For example, the representative magicJack device plugs into the USB port of
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a host computer and causes the display of a pop-up window allowing the running of magicJack telephony software:
71. Each of the Accused Products has a memory component for storing at least part of
selected software or data operable on the host computing device. For example, the representative
magicJack device has a Winbond flash memory chip that presumably stores the internal software
and drivers.
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.
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72. Each of the Accused Products has a controller for controlling interaction between the
integrated circuit memory device and the host computing device, the controller including
firmware to support loading of at least part of the selected software or data from the memory
component of the integrated circuit memory device for running on the host computing device.
For example, the representative magicJack device has a Winbond memory chip to store a phone
calling software component (e.g. internal software that allows for the device to serve as a VOIP
dongle and provide phone call functionality) and an integrated controller (e.g. an MCU/DSP as
shown below) to manage communication through the USB connector and access of the
Winbond memory chip. Based on the design of the magicJack device as shown in the tear
downs below, the Winbond memory chip is the only flash memory chip on the device circuit
board and, upon information and belief, serves as a memory component upon which internal
software and drivers are stored. Likewise, the MCU/DSP is the only controller visible on the
device circuit board and, upon information and belief, serves as a controller enabling access to
the Winbond memory chip and its contents, as well enabling interaction between the accused
product and host computing device via the USB port.
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73. Each of the Accused Products performs the step of activating the integrated circuit
memory device upon connection of the integrated circuit memory device to the host computing
device. For example, as shown below, the representative magicJack device is meant to be
plugged in using the USB connector over which the device will draw power.
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https://fccid.io/Y79K1103/User-Manual/Users-Manual-2256038.
74. Each of the Accused Products performs the step of informing the host computing
device of the presence of autorun software on the integrated circuit memory device. As shown
in the picture below, the representative magicJack device has autorun software that runs when
the device is plugged into the host computer that informs the host computer of its presence.
FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT Page 41 of 73
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75. Each of the Accused Products performs the step of executing, automatically, at least
part of the autorun software on the host computing device, the autorun software running on the
host computing device interacting with the firmware included in the integrated circuit memory
device for accessing at least part of the selected software or data stored in the memory
component of the integrated circuit memory device. For example, the representative magicJack
device has autorun software that runs when the device is plugged in as shown below.
FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT Page 42 of 73
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76. Each of the Accused Products performs the step of loading, by the autorun software,
at least part of the selected software or data stored in the memory component of the integrated
circuit memory device. For example, the representative magicJack device has autorun software
that runs when the device is plugged in that permits calling as shown below, and this software
will not run when the device is not plugged in which is indicative that at least a part of the
software resides on the memory of the integrated circuit device.
FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT Page 43 of 73
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77. Each of the Accused Products performs the step of facilitating running, by the
autorun software, at least part of the selected software or data loaded from the memory
component of the integrated circuit memory device on the host computing device. For example,
the representative magicJack device has autorun software that runs when the device is plugged
in that permits calling as shown below, and this software will not run when the device is not
plugged in which is indicative that at least a part of the software resides on the memory of the
integrated circuit device and its running must be facilitated by the autorun software.
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78. Each of the Accused Products performs the step of identifying the integrated circuit
memory device to the host computing device in accordance with a first device interface
description. For example, the representative magicJack device necessarily must identify itself
to the host computer as a USB device in order to communicate over its USB interface.
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79. Each of the Accused Products performs the step of determining whether the
integrated circuit memory device is to be re-enumerated. For example, the representative
magicJack device determines if the software has already been installed on the host computer.
80. Each of the Accused Products performs the step of re-enumerating the integrated
circuit memory device for identifying the integrated circuit memory device to the host
computing with a second device interface description. For example, the representative
magicJack device re-enumerates and identifies itself as a CD Drive as shown here:
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81. Accordingly, Defendant has and continues to directly infringe the `717 Patent,
both literally and/or under the doctrine of equivalents, in violation of 35 U.S.C. § 271(a) by
making, using, offering for sale, selling, and/or importing into the United States the Accused
Products without the authority of FlexiJet.
82. Defendant has been on notice of the `717 Patent since at least filing of the
Complaint in this case. See Script Sec. Sols. L.L.C. v. Amazon.com, Inc., 170 F. Supp. 3d 928,
937 (E.D. Tex. 2016). Since that time, upon information and belief, Defendant has not changed,
modified, or reengineered the Accused Products. Instead, Defendant has continued to willfully,
wantonly, and deliberately engage in acts of infringement of the ’717 Patent permitting increased
damages under 35 U.S.C. § 284, and attorneys’ fees and costs incurred under 35 U.S.C. § 285.
83. In violation of 35 U.S.C. § 271(b), Defendant has indirectly infringed the `717
Patent by inducing their customers to directly infringe the `717 Patent, both literally and/or under
the doctrine of equivalents, at least by providing their customers with instructions on using the
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Accused Products and by making, using, offering for sale, selling, and/or importing devices in
the United States the Accused Products without the authority of FlexiJet. For example, the
representative magicJack’s packaging instructs users to plug the product into a USB port on their
computer:
https://fccid.io/Y79K1103/User-Manual/Users-Manual-2256038.
84. Upon information and belief, and in violation of 35 U.S.C. § 271(b), Defendant
has indirectly infringed the `760 Patent by contribution knowing that the Accused Products
would be combined with other components to infringe the `760 Patent and that the Accused
Products have no substantial non-infringing use.
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85. Unless enjoined by this Court, Defendant will continue to infringe the `717
Patent.
86. Because of Defendant’s infringing activities, FlexiJet has suffered damages and
will continue to suffer damages in the future.
COUNT IV INFRINGEMENT OF U.S. PATENT NO. 9,043,482
87. FlexiJet alleges and hereby incorporates by reference every allegation made in the
foregoing paragraphs of this First Amended Complaint as if each were separately set forth
herein.
88. In violation of 35 U.S.C. § 271, Defendant has directly infringed and continues to
directly infringe, both literally and/or under the doctrine of equivalents, the `482 Patent by
making, using, offering for sale, selling, and/or importing the Accused Products in the United
States, including within this District, that infringe at least claim six of the `482 Patent without the
authority of FlexiJet.
89. The identified claims of the `482 Patent are presumed valid.
90. Each of the Accused Products is a portable communication device that is plug
connectable to an external USB interface of a first computing device, the first computer device
being a distinct device from the portable communication device. For example, the representative
magicJack device is a USB pluggable communication device as shown here:
FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT Page 49 of 73
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91. Each of the Accused Products has a memory component that includes a memory
area storing a phone calling software component. For example, the representative magicJack
device has a Winbond memory chip to store a phone calling software component (e.g. internal
software that allows for the device to serve as a VOIP dongle and provide phone call
functionality) and an integrated controller (e.g. an MCU/DSP as shown below) to manage
communication through the USB connector and access of the Winbond memory chip. Based on
the design of the magicJack device as shown in the tear downs below, the Winbond memory chip
is the only flash memory chip on the device circuit board and, upon information and belief,
serves as a memory component upon which internal software and drivers are stored.
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92. Each of the Accused Products has one or more controllers having means for
managing communication and means for accessing the memory area. For example, the
representative magicJack device has a MCU/DSP which is the only controller visible on the
device circuit board and, upon information and belief, serves as a controller enabling access to
the Winbond memory chip and its contents, as well enabling interaction between the accused
product and first computing device via the USB port.
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93. Each of the Accused Products is capable of being plug connected to the host
computing device. For example, the representative magicJack device is used with a computer:
https://fccid.io/Y79K1103/User-Manual/Users-Manual-2256038.
94. Each of the Accused Products, when plug connected to a host computer, draws power from the first computing device via the external USB interface of the first computing device for operating the portable communication device. For example, the representative magicJack device operates when used with a computer:
FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT Page 54 of 73
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https://fccid.io/Y79K1103/User-Manual/Users-Manual-2256038.
95. Each of the Accused Products, when plug connected to a host computer, accesses
at least part of the phone calling software component from the memory area, the accessing of at
least part of the phone calling software component being facilitated, at least in part, by the one or
more controllers. For example, the representative magicJack device installs and operates with
phone calling software used with a host computer:
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96. Each of the Accused Products, when plug connected to a host computer, provides at least part of the accessed phone calling software component to a phone calling application running and executing on the first computing device, the providing of at least part of the accessed phone calling software component being facilitated, at least in part, by the one or more controllers. For example, the representative magicJack device provides the phone calling software shown below which requires the magicJack device to be installed indicating that the controller inside the magicJack device is facilitating access to the software component.
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97. Each of the Accused Products, when plug connected to a host computer, enables
the phone calling software application running and executing at the first computing device to
make phone calls with the phone calling software component provided by the portable
communication device. For example, the representative magicJack device enables the phone
calling software shown below to make phone calls.
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98. Each of the Accused Products, when plug connected to a host computer, enables
phone calls through the portable communication device. For example, the representative
magicJack device enables phone calls through the magicJack device as shown below.
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99. Each of the Accused Products is capable, upon disconnection of the portable
communication device from the external USB interface of the first computing device, is further
operable to connect the portable communication device to an Ethernet interface connection
associated with a computing device, and upon connecting the portable communication device to
the Ethernet interface connection, the portable communication device is further configured to
enable phone calling service over the Ethernet interface connection. For example, the
representative magicJack device can be used without a computer as shown below.
100. Each of the Accused Products is in the form of a portable dongle that enables
phone calling either when the portable communication device is connected to the external USB
interface of the first computing device, or when the portable communication device is connected
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to the Ethernet interface connection. For example, the representative magicJack device can be
used with or without a computer as shown below.
101. Accordingly, Defendant has and continue to directly infringe the `482 Patent, both
literally and/or under the doctrine of equivalents, in violation of 35 U.S.C. § 271(a) by making,
using, offering for sale, selling, and/or importing into the United States the Accused Products
without the authority of FlexiJet.
102. Defendant has been on notice of the `482 Patent since at least filing of the
Complaint in this case. See Script Sec. Sols. L.L.C. v. Amazon.com, Inc., 170 F. Supp. 3d 928,
937 (E.D. Tex. 2016). Since that time, upon information and belief, Defendant has not changed,
modified, or reengineered the Accused Products. Instead, Defendant has continued to willfully,
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wantonly, and deliberately engage in acts of infringement of the ’482 Patent permitting increased
damages under 35 U.S.C. § 284, and attorneys’ fees and costs incurred under 35 U.S.C. § 285.
103. In violation of 35 U.S.C. § 271(b), Defendant has indirectly infringed the `482
Patent by inducing their customers to directly infringe the `482 Patent, both literally and/or under
the doctrine of equivalents, at least by providing their customers with instructions on using the
Accused Products and by making, using, offering for sale, selling, and/or importing devices in
the United States the Accused Products without the authority of FlexiJet. For example, the
representative magicJack’s packaging instructs users to plug the product into a USB port on their computer:
https://fccid.io/Y79K1103/User-Manual/Users-Manual-2256038.
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104. Upon information and belief, and in violation of 35 U.S.C. § 271(b), Defendant
has indirectly infringed the `482 Patent by contribution knowing that the Accused Products
would be combined with other components to infringe the `482 Patent and that the Accused
Products have no substantial non-infringing use.
105. Unless enjoined by this Court, Defendant will continue to infringe the
`482 Patent.
106. Because of Defendant’s infringing activities, FlexiJet has suffered damages and
will continue to suffer damages in the future.
COUNT V INFRINGEMENT OF U.S. PATENT NO. 9,116,723
107. FlexiJet alleges and hereby incorporates by reference every allegation made in the
foregoing paragraphs of this First Amended Complaint as if each were separately set forth
herein.
108. In violation of 35 U.S.C. § 271, Defendant has directly infringed and continues to
directly infringe, both literally and/or under the doctrine of equivalents, the `723 Patent by
making, using, offering for sale, selling, and/or importing the Accused Products in the United
States, including within this District, that infringe at least claim ten without the authority of
FlexiJet.
109. The claims of the `723 Patent are presumed valid.
110. Each of the Accused Products has non-transitory autorun software stored in a computer readable integrated circuit memory device connectable by a user to an external port of a host computing device for running on the host computing device protected software or data that can be executed by the host computing device using the integrated circuit memory device. For
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example, the representative magicJack device is an integrated circuit device connectable into the
USB port of a host computer:
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The representative magicJack device has software and data that autoruns as shown here:
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The software and data on the representative magicJack device is protected as shown here:
111. Each of the Accused Products has software for running on the host computing
device autorun software upon connection of the integrated circuit memory device to the host
computing device stored in its computer readable memory medium. For example, the
representative magicJack device has software that autoruns on the host computer as shown:
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112. Each of the Accused Products has software for identifying the integrated circuit
memory device to the host computer with a device interface description, the device interface
description identifying the integrated circuit memory device in a manner analogous to that of a
CD-ROM (Compact Disc Read-Only Memory) drive or a mass storage class device, individually
or in any combination. For example, the representative magicJack device is a USB device that
has software that identifies itself as CD Drive as shown below.
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113. Each of the Accused Products has software for interacting with autorun firmware
embedded in the integrated circuit memory device for accessing a protected memory component
in the integrated circuit memory device, the protected memory component not implemented to be
a public memory area for storing data that are accessible or viewable by the user but being
accessible by the autorun software upon connection and activation of the integrated circuit
memory device to the host computing device. For example, the representative magicJack device
has autorun software that accesses a protected memory area in order to install telephony software
as shown.
The representative magicJack’s memory is protected and inaccessible as shown here:
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114. Each of the Accused Products has software for loading at least part of the
protected software or data from the protected memory component of the integrated circuit
memory device.
115. Each of the Accused Products has software for running and executing the
protected software or data by the autorun software on the host computer. For example, the
representative magicJack device has autorun software that accesses a protected memory area in
order to install telephony software as shown.
116. Each of the Accused Products has its integrated circuit memory device associated
with providing a phone calling service, an Internet access service, or a digital content output
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service, individually or in any combination. For example, the representative magicJack device
provides a phone calling service as shown here:
117. Accordingly, Defendant has and continues to directly infringe the `723 Patent,
both literally and/or under the doctrine of equivalents, in violation of 35 U.S.C. § 271(a) by
making, using, offering for sale, selling, and/or importing into the United States the Accused
Products without the authority of FlexiJet.
118. Defendant has been on notice of the `723 Patent since at least filing of this
Complaint. See Script Sec. Sols. L.L.C. v. Amazon.com, Inc., 170 F. Supp. 3d 928, 937 (E.D.
Tex. 2016). Since that time, upon information and belief, Defendant has not changed, modified,
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or reengineered the Accused Products. Instead, Defendant has continued to willfully, wantonly,
and deliberately engage in acts of infringement of the ’723 Patent permitting increased damages
under 35 U.S.C. § 284, and attorneys’ fees and costs incurred under 35 U.S.C. § 285.
119. In violation of 35 U.S.C. § 271(b), Defendant has indirectly infringed the `723
Patent by inducing their customers to directly infringe the `723 Patent, both literally and/or under
the doctrine of equivalents, at least by providing their customers with instructions on using the
Accused Products and by making, using, offering for sale, selling, and/or importing devices in
the United States the Accused Products without the authority of FlexiJet. For example, the
representative magicJack’s packaging instructs users to plug the product into a USB port on their
computer:
https://fccid.io/Y79K1103/User-Manual/Users-Manual-2256038.
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120. Upon information and belief, and in violation of 35 U.S.C. § 271(b), Defendant
has indirectly infringed the `723 Patent by contribution knowing that the Accused Products
would be combined with other components to infringe the `723 Patent and that the Accused
Products have no substantial non-infringing use.
121. Unless enjoined by this Court, Defendant will continue to infringe the `723
Patent.
122. Because of Defendant’s infringing activities, FlexiJet has suffered damages and
will continue to suffer damages in the future.
ADDITIONAL ALLEGATIONS
123. FlexiJet has complied with 35 U.S.C. § 287.
JURY DEMAND
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, FlexiJet demands a trial by
jury on all issues triable as such.
PRAYER FOR RELIEF
FlexiJet requests that this Court find in its favor and against Defendant, and that this
Court grant FlexiJet the following relief:
A. An adjudication that Defendant has infringed the `757, `352, `717, `482, and `723
Patents;
B. An award of damages to be paid by Defendant adequate to compensate FlexiJet for Defendant’s past infringement of the Patents-in-Suit and any continuing or future infringement through the date such judgment is entered (but in no event less than a reasonable royalty in accordance with 35 U.S.C. § 284), including interest, costs, expenses and an accounting of all infringing acts including, but not limited to, those acts not presented at trial;
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C. A preliminary and permanent injunction enjoining Defendant and its officers,
agents, servants, employees, users, attorneys, and all those persons in active concert or
participation with Defendant from the acts described in this First Amended Complaint;
D. Alternatively, an order requiring Defendant to pay an ongoing royalty in an
amount to be determined for any continued infringement after the date judgment is entered;
E. An award of pre-judgment and post-judgment interest to the full extent allowed
under the law, as well as their costs;
F. Granting a judgment that Defendant’s infringement was willful and order
Defendant to pay increased damages of three times compensatory damages, in accordance with
35 U.S.C. § 284;
G. A declaration that this case is exceptional under 35 U.S.C. § 285, and an award of
FlexiJet’s reasonable attorneys’ fees;
H. An award to FlexiJet of such further relief at law or in equity as the Court deems
just and proper.
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Dated: November 12, 2018 Respectfully submitted,
/s/ Gary R. Sorden Gary R. Sorden Texas Bar No. 24066124 [email protected] Mark D. Perantie Texas Bar No. 24053647 [email protected] Timothy J.H. Craddock Texas Bar No. 24082868 [email protected] KLEMCHUK LLP 8150 N. Central Expressway 10th Floor Dallas, Texas 75206 Tel: 214-367-6000 Fax: 214-367-6001
ATTORNEY FOR PLAINTIFF FLEXIJET TECHNOLOGIES, INC.
CERTIFICATE OF SERVICE
I hereby certify that on November 12, 2018, the foregoing was electronically filed with
the Clerk of the Court using the CM/ECF system.
/s/ Gary R. Sorden Gary R. Sorden
FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT Page 73 of 73