4 AGILITY IP LAW JO~7 UTIG ON ERT ~" V2E~
James C. OneSOIl [email protected] ,9
April 1, 2011 -...... -- ...... OHice at the Secretary Acting Secretary James R. Holbein Inri rrade Commission United States International Trade Commission 500 E Street, S. W. Washington, DC 20436
Re: Certain Motion-Sellsitive SOll1ld Effects Devices and Image Display Devices a1ld Components alld Products Contai11ing Same, Inv. No. 337-TA-_
Dear Secretary Holbein:
Enclosed for filing on behalf of Ogma, LLC ("Ogma") are the following documents in support of Ogma's request that the Commission commence an investigation under Section 337 of Tariff Act of 1930. Pursuant to the Commission Rules of Practice and Procedure, a request for confidential treatment of certain confidential information contained in the complaint, exhibits, and appendices is being transmitted concurrently herewith. Enclosed is a listing of the contents of each box. Accordingly, Ogma submits the following documents:
1. An original and twelve (12) copies of the verified complaint and an original and six (6) copies of the accompanying exhibits, with the confidential exhibits segregated from the other material submitted (exhibits that include an original and one (1) copy unbound, without tabs) (Rules 201.6(c), 21O.4(f)(3)0), and 210.8(a)(1)(i»;
2. Thirty-eight (38) additional copies of the complaint and accompanying non confidential and confidential exhibits, one each for service upon the twenty-four proposed respondents (Rules 21O.4(f)(3)(i), 21O.8(a)(l)(iii), and 21O.11(a»;
3. Copies of United States Patent Nos. 6,150,947 (the '947 Patent) and 5,825,427 (the '427) are included as Exhibit 1 and 2 in all copies of the Complaint (Rule 210. 12(a)(9)(i»;
4. Copies of the Assignment Records for the '947 Patent and '427 Patent are included as Appendices A and C in the original Complaint, and copies thereof included as Exhibits 4 and 6 in all copies of the Complaint (Rule 21O.12(a)(9)(ii»;
5. An identification of each license agreement for the agreement for the '947 Patent and '427 Patent included as Confidential Exhibits 5, 7, 76, 78, 78-1, 78-2, 78-3, 78-4, 78-5, 78-6, and 78-7 (Rule 210. 12(a)(9)(ii);
6. Copies of the prosecution histories of the '947 Patent and the '427 Patent are included as Appendix Band D to the original Complaint. Three (3) additional
1900 University Circle, Suite 201 ~ East Palo Alto, CA 94303 ~ 650-227-4800 • www.AgmtyIPLllw.com ~ AGILITY IP LAW
Acting Secretary James C. Holbein Aprill,2011 Page 2
copies (plus an additional unbound copy) thereof are also included (Rule 21 0.12( c)(2»;
7. Six (6) additional copy of the complaint for service upon the embassy in Washington, D.C. of the country of the foreign respondents (Japan, Taiwan, Singapore, China, Hong Kong SAR, Sweden) (Rules 21O.8(a)(1)(iv) and 210.11 (a)(l )(ii));
8. A letter and certification pursuant to 19 c.P.R. 201.6(b) and Commission Rules 210.5(d) requesting confidential treatment of confidential exhibits 5,7, 76, 78, 78- 1, 78-2, 78-3, 78-4, 78-5, 78-6, 78-7.
9. In a telephonic conversation on March 30, 2011, Acting Secretary Holbein authorized Complainant Ogma, LLC to submit all Confidential and Non Confidential Exhibits, including the Appendices on CDs.
Respectful1~ submitted, 1)~Al!J I. es c. btteson
Enclosures
1900 Univcrsity Circle, Suitc 201 ~ East Palo Alto, CA 94303 + 650-227-4800 + www.AgilityIPLaw.com 4 AGILITY IP LAW llTI j j"j E PE T
James C. Otteson [email protected]
April 1, 2011
Acting Secretary James R. Holbein United States International Trade Commission 500 E Street, S.W. Washington, DC 20436
Re: Cer/dill Motion-Sellsitive SOU1ld Effects Devices and Image Display Devices and Components and Products Containing Same, IllV. No. 337-TA-_
Dear Secretary Holbein:
This firm represents Complainant Ogma, LLC (HOgma"), which is concurrently filing a complaint pursuant to Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C § 1337.
In accordance with Commission Rules 201.6 and 210.5 (19 C.F.R. §§ 201.6 and 210.5), Complainant requests confidential treatment of the business information contained in confidential exhibits 5, 7, 76, 78, 78-1, 78-2, 78-3, 78-4, 78-5, 78-6, and 78-7.
The information for which confidential treatment is sought is proprietary commercial and financial information not otherwise publicly available. Specifically, those exhibits contain proprietary commercial information concerning Complainant's licensing of the asserted patents, financial information of the Complainant and the Complainant'S investments in the domestic industry as well as confidential and proprietary technical information belonging to the Complainant.
The information described above qualifies as confidential business information pursuant to Rule 201.6(a) because:
1. it is not available to the public;
2. unauthorized disclosure of such information could cause substantial harm to the competitive position of Complainant; and
3. the disclosure of such information could impair the Commission's ability to obtain information necessary to perform its statutory function.
Please contact me if you have any questions regarding this request, or if this is not granted in full.
1966 University Circle, Suite 261 + I~a"t I)alo Alto, CA 94363 + 650-227-4800 .. www.AgilityH·Luw.com ~ AGILITY IP LAW
Acting Secretary James C. Holbein April 1,2011 Page 2
Thank you for your attention to this matter.
Enclosures
1900 University Circle, Suite 201 ~ East Palo Alto, CA 94303 ~ 650·227·4800 • www.A.gilitJIPLaw.com UNITED STATES INTERNATIONAL TRADE COMMISSION WASHINGTON, D.C.
In the Matter of
CERTAIN MOTION-SENSITIVE SOUND EFFECTS DEVICES AND IMAGE DISPLAY DEVICES AND COMPONENTS AND PRODUCTS CONTAINING SAME
Investigation No. 337-TA-__
COMPLAINT OF OGMA, LLC
UNDER SECTION 337 OF THE TARIFF ACT OF 1930, AS AMENDED
COMPLAINANT RESPONDENTS Ogma, LLC Activision Blizzard, Inc. 3301 W. Marshall Ave. 3100 Ocean Park Blvd. Longview, TX 75604 Santa Monica, CA 90405 Telephone: (866) 308-2038 Apple Inc. COUNSEL FOR COMPLAINANT I Infinite Loop James e. Otteson Cupertino, CA 95014 David A. Caine Thomas T. Carmack Canon, Inc. XiangLong 30-2, Shimomaruko 3-chome Ohta-ku AGILITY IP LAW, LLC Tokyo 146-8501, 1900 University Circle, Suite 201 Japan East Palo Alto, CA 94303 Telephone: (650) 227-4800 Canon USA, Inc. One Canon Plaza Andrew W. Spangler Lake Success, NY 11042 SPANGLER LAW P.e. 208 N. Green St., Suite 300 Seiko Epson Corporation Longview, TX 75601 3-3-5 Owa, Suwa Telephone: (903) 753-9300 Nagano 392-8502, Japan
Epson America, Inc. 3840 Kilroy Airport Way Long Beach, CA 90806 RESPONDENTS HTC Corporation Mad Catz, Inc. 23 Xinghua Rd. 7480 Mission Valley Road, Suite 101 Taoyuan 330, Taiwan San Diego, CA 92108 ROC Motorola Mobility, Inc. HTC America, Inc. 600 North U.S. Highway 45 13920 SE Eastgate Way, Suite 400 Libertyville, IL 60048 Bellevue, WA 98005 Nintendo Co., Ltd. InFocus Corp. 11-1 Kamitoba-hokotate-cho, 13190 SW 68th Parkway, Suite 200 Minami-ku. Kyoto 601-8501 Portland, OR 97223-8368 Japan
Jakks Pacific, Inc. Nintendo of America, Inc. 22619 Pacific Coast Highway, 4600 150th Avenue NE Malibu, CA 90265 Redmond, W A 98052
Kyocera Communications, Inc. Nyko Technologies, Inc. 9520 Towne Centre Drive 1990 Westwood Blvd., 3rd Floor San Diego, California 92121 Los Angeles, CA 90025
LEGO AlS dba LEGO Group Sanyo North America Corp. Aastvej 1, Dk..;7190 Billund 2055 Sanyo Ave. Denmark San Diego, CA 92154
LEGO Systems, Inc. Sanyo Electric Co. Ltd. 555 Taylor Road 2-5-5 Keihan-Hondori, Moriguchi-ku Enfield, CT 06082 Osaka 570-8677 Japan Lenovo (United States), Inc. 1009 Think Place, Sanyo Electronic Device (U.S.A.) Morrisville, NC 27560 Corporation 2055 Sanyo Avenue Lenovo Group Ltd. San Diego, CA 92154 No.6 Chuang Ye Road Shangdi Information Industry Base Sharp Corporation Haidian District 22-22 Nagaike-cho, Abeno-ku Beijing 100085 Osaka 545-8422 China Japan
Lenovo (Singapore) Pte. Ltd. Sharp Electronics Corporation New Tech Park 1 Sharp Plaza 151 Lorong, Chuan, Mahwah, NJ 07495 (S) 556741 at Serangoon Garden Singapore RESPONDENTS WowWee Group Ltd. Sony Computer Entertainment America, Energy Plaza, 3F, 92 Granville Road LLC Tsim Sha Tsui East, Hong Kong 919 East Hillsdale Blvd. Foster City, CA 94404 WowWee USA, Inc. 5963 La Place Court, Suite 207 Sony Corporation Carlsbad, CA 92008 1-7-1 Konan, Minato-ku Tokyo 108-0075 Japan
Sony Corporation of America 550 Madison Avenue New York, NY 10022
Sony Electronics Inc. 16530 Via Esprillo San Diego, CA 92127
Sony Ericsson Mobile Communications (USA), Inc. 3333 Piedmont Road, Suite 600 Atlanta, GA 30305
Sony Ericsson Mobile Communications AB Nya Vattentomet SE-221, 88 Lund Sweden
Vivitek Corporation 4425 Cushing Parkway San Jose, CA 94538
VTech Electronics North America, LLC 1155 W. Dundee, Suite 130 Arlington Heights, IL 60004
VTech Holdings, Ltd. 231F, Tai Ping Industrial Centre, Block 1 57 Ting Kok Rd., Tai Po, New Territories Hong Kong
ViewSonic Corp., Ltd. 381 Brea Canyon Road, Walnut, CA 91789 TABLE OF CONTENTS
Page
I. INTRODUCTION ...... 1 II. COMPLAINANT ...... 2 III. PROPOSED RESPONDENTS ...... 3 IV. THE PATENTS, TECHNOLOGY AND PRODUCTS AT ISSUE ...... 11 A. Overview and Ownership ofthe Asserted Patents ...... 11 1. The '947 Patent ...... 11 2. The '427 Patent ...... 12 B. Nontechnical Description Of The Asserted Patents ...... 13 1. Nontechnical Description Of The '947 Patent...... 13 2. Nontechnical Description Of The '427 Patent...... 14 V. UNLAWFUL AND UNFAIR ACTS OF THE PROPOSED RESPONDENTS- RESPONDENTS' UNFAIR TRADE PRACTICES ...... 16 A. Activision ...... 17 B. Apple ...... 18 C. Canon ...... 19 D. Epson...... 20 E. HTC ...... 21 F. InFocus ...... 23 G. Jakks ...... 24 H. LEGO ...... 26 I. Lenovo ...... 27 J. Mad Catz ...... 28 K. Motorola ...... 29 L. Nintendo ...... 30 M. Nyko ...... 32 N. Sanyo ...... 33 O. Sharp ...... 35 P. Sony ...... 36 Q. Sony Ericsson...... 37 R. ViewSonic ...... 39 S. Vivitek ...... 40 T. VTech ...... 41 U. WowWee ...... 42 VI. HARMONIZED TARIFF SCHEDULE ITEM NUMBERS ...... 44 VII. RELATED LITIGATION ...... 44 VIII. THE DOMESTIC INDUSTRY ...... 46 A. A Domestic Industry for the Asserted Patents Exists as a Result of the Domestic Activities of Licensees of the Asserted Patents, as well as the Activities of the Previous Owners of the Asserted Patents ...... 47 1. A Domestic Industry Exists for the '947 Patent...... 47 2. A Domestic Industry Exists for the' 427 Patent...... 48 -1- B. A Domestic Industry for the Asserted Patent Exists as a Result of the Licensing Efforts of Ogma and its Predecessors ...... 49 IX. RELIEF REQUESTED ...... 51
-11- EXHIBITS TO COMPLAINT
Exhibit 1: Certified copy of U.S. Patent No. 6,150,947
Exhibit 2: Certified copy of U.S. Patent No. 5,825,427
Exhibit 3: State of Texas Certificate of Fact for Ogma, LLC
Exhibit 4: Certified copy of recorded assignments for U.S. Patent No. 6,150,947
Confidential Exhibit 5: List of entities licensed under U.S. Patent No. 6,150,947
Exhibit 6: Certified copy of recorded assignments for U.S. Patent No. 5,825,427
Confidential Exhibit 7: List of entities licensed under U.S. Patent No. 5,825,427
Exhibit 8: Activision import record
Exhibit 9: Claim chart applying U.S. Patent No.6, 150,947 to accused Activision product
Exhibit 10: Photograph of accused Apple product showing "Made in China"
Exhibit 11 : Printout of offer for sale in U.S. of accused Apple product on Apple Online store
Exhibit 12: Claim chart applying U.S. Patent No. 6,150,947 to accused Apple product
Exhibit 12-1: Apple iOS Application Programming Guide
Exhibit 12-2: Apple Event Handling Guide for iOS
Exhibit 13: Claim chart applying U.S. Patent No. 5,825,427 to accused Apple product
Exhibit 13-1: iPhone 4 Technical Specifications
Exhibit 14: Photograph of accused Canon product packaging showing "Made in China"
Exhibit 15: Printout of offer for sale in U.S. of accused Canon product on Canon Online store
Exhibit 16: Claim chart applying U.S. Patent No. 5,825,427 to accused Canon product
Exhibit 16-1: Printout of accused Canon product overview from Canon USA website
Exhibit 16-2: Printout of accused Canon product specifications from Canon USA website
Exhibit 16-3: Printout of accused Canon product features from Canon USA website
Exhibit 17: Epson import record
-111- Exhibit 18: Printout of offer for sale in U.S. of accused Epson product on Epson Online store
Exhibit 19: Claim chart applying U.S. Patent No. 5,825,427 to accused Epson product
Exhibit 20: HTC USITC complaint, dated May 12,2010
Exhibit 21: Printout of offer for sale in U.S. of accused HTC product on HTC Online store
Exhibit 22: Claim chart applying U.S. Patent No. 6,150,947 to accused HTC product
Exhibit 22-1: Accused HTC product accelerometer data sheet
Exhibit 22-2: Javalobby printout re accused HTC product accelerometer programming
Exhibit 22-3: SensorListner printout re accused HTC product accelerometer programmmg
Exhibit 23: Claim chart applying U.S. Patent No. 5,825,427 to accused HTC product
Exhibit 23-1: Printout of accused HTC product overview from HTC Online Store
Exhibit 23-2: Printout of accused HTC product specification from HTC website
Exhibit 24: InFocus import record
Exhibit 25: Claim chart applying U.S. Patent No. 5,825,427 to accused InFocus product
Exhibit 25-1: Printout of accused InFocus product overview from InFocus website
Exhibit 25-2: Printout of accused InFocus product specifications from InFocus website
Exhibit 26: Jakks import record
Exhibit 27: Claim chart applying U.S. Patent No. 5,825,427 to accused Jakks product
Exhibit 27-1: Printout of accused Jakks product page from Jakks website
Exhibit 27-2: Accused Jakks product instructions
Exhibit 28: Photograph of accused LEGO product packaging showing foreign manufacture
Exhibit 29: Printout of offer for sale in U.S. of accused LEGO product on LEGO Online store
Exhibit 30: Claim chart applying U.S. Patent No. 6,150,947 to accused LEGO products
Exhibit 30-1: Printout of accused LEGO product page from Hi Technic website
Exhibit 31: Printout from Lenovo website showing that all manufacturing locations are outside U.S.
-lV- Exhibit 32: Printout of offer for sale in US. of accused Lenovo product on Lenovo Online store
Exhibit 33: Claim chart applying U.S. Patent No. 5,825,427 to accused Lenovo product
Exhibit 33-1: Accused Lenovo product brochure
Exhibit 33-2: Printout of accused Lenovo product page from Lenovo website
Exhibit 34: Mad Catz import record
Exhibit 35: Mad Catz import record
Exhibit 36: Claim chart applying US. Patent No. 6,150,947 to accused Mad Catz product
Exhibit 36-1: Printout ofhttp://wiibrew.org/wiki/Wiimote
Exhibit 37: Photograph of accused Motorola product packaging showing "Assembled in China"
Exhibit 38: Printout of offer for sale in US. of accused Motorola product on Motorola Online store
Exhibit 39: Printout of offer for sale in U.S. of accused Motorola product on Motorola Online store
Exhibit 40: Claim chart applying U.S. Patent No. 6,150,947 to accused Motorola product
Exhibit 40-1: Accused Motorola product accelerometer data sheet
Exhibit 40-2: Teardown of accused Motorola product from iFixit.com
Exhibit 40-3: Accused Motorola product accelerometer specifications
Exhibit 41: Claim chart applying U.S. Patent No. 5,825,427 to accused Motorola product
Exhibit 41-1: Accused Motorola product specifications
Exhibit 42: Photograph of accused Nintendo product showing "Assembled in China"
Exhibit 43: Printout of offer for sale in U.S. of accused Nintendo product on BestBuy.com
Exhibit 44: Claim chart applying U.S. Patent No. 6,150,947 to accused Nintendo product
Exhibit 45: Nyko import record
Exhibit 46: U.S. sales receipt for accused Nyko product
Exhibit 47: Photograph of accused Nyko product packaging showing "Made in China"
-v- Exhibit 48: Claim chart applying U.S. Patent No. 6,150,947 to accused Nyko product
Exhibit 48-1: Product page for accused Nyko product from Nyko website
Exhibit 49: Photograph of Accused Sanyo product showing "Phone Made in China"
Exhibit 50: Accused Sanyo product U.S. sales receipt
Exhibit 51: Printout of offer for sale in U.S. of accused Sanyo product on Amazon.com
Exhibit 52: Claim chart applying U.S. Patent No. 6,150,947 to accused Sanyo product
Exhibit 52-1: Accused Sanyo product page from Kyocera Sanyo USA website
Exhibit 52-2: Qualcomm press release re accused Sanyo product processor
Exhibit 53: Claim chart applying U.S. Patent No. 5,825,427 to accused Sanyo product
Exhibit 53-1: Accused Sanyo product overview from Sanyo USA website
Exhibit 54: Sharp import record
Exhibit 55: Printout of offer for sale in U.S. of accused Sharp product on SharpUSA.com
Exhibit 56: Claim chart applying U.S. Patent No. 5,825,427 to accused Sharp product
Exhibit 57: Photograph of accused Sony product showing "Made in China"
Exhibit 58: Accused Sony product U.S. sales receipt
Exhibit 59: Claim chart applying U.S. Patent No. 5,825,427 to accused Sony product
Exhibit 59-1: Accused Sony product page from SonyStyle.com
Exhibit 60: Photograph of accused Sony Ericsson accused product showing "Made in China"
Exhibit 61: Accused Sony Ericsson U.S. sales receipt
Exhibit 62: Claim chart applying U.S. Patent No. 6,150,947 to accused Sony Ericsson product
Exhibit 62-1: Accused Sony Ericsson product specifications from Sony Ericsson website
Exhibit 63: Claim chart applying U.S. Patent No. 5,825,427 to accused Sony Ericsson product
Exhibit 64: ViewSonic import record
Exhibit 65: Printout of offer for sale in U.S. of accused ViewSonic product on ViewSonic website
Exhibit 66: Claim chart applying U.S. Patent No. 5,825,427 to accused ViewSonic product
-VI- Exhibit 66-1: Accused ViewSonic product page from ViewSonic website
Exhibit 67: Vivitek import record
Exhibit 68: Printout of offer for sale in U.S. of accused Vivitek product on Amazon.com
Exhibit 69: Claim chart applying U.S. Patent No. 5,825,427 to accused Vivitek product
Exhibit 69-1: Accused Vivitek product page from Vivitek website
Exhibit 70: Photograph of accused VTech product packaging showing "Made in China"
Exhibit 71: Printout of offer for sale in U.S. of accused VTech product on VTech website
Exhibit 72: Claim chart applying U.S. Patent No. 6,150,947 to accused VTech product
Exhibit 72-1: Accused VTech product page from VTech website
Exhibit 72-2: Accused VTech product manual
Exhibit 72-3: Accused VTech product accelerometer datasheet
Exhibit 72-4: Accused VTech product article from eHow.com
Exhibit 73: WowWee import record
Exhibit 74: Claim chart applying U.S. Patent No. 6,150,947 to accused WowWee product
Exhibit 74-1: Accused WowWee product manual
Exhibit 74-2: Accused WowWee product disassembly article from www.robocommunity.com
Exhibit 75: Claim chart applying U.S. Patent No. 5,825,427 to accused WowWee product
Exhibit 75-1: Accused WowWee product manual
Confidential Exhibit 76: Source Audio domestic industry declaration
Exhibit 77: Claim chart applying U.S. Patent No. 6,150,947 to Source Audio domestic industry products
Exhibit 77-1 : Source Audio domestic industry products accelerometer datasheet
Exhibit 77-2: Source Audio April 10, 2006 press release
Confidential Exhibit 78: Domestic industry declaration of Michael Connelly of Ogma
Confidential Exhibit 78-1: Ogma's standard licensing letter
-vu- Confidential Exhibit 78-2: Ogma's standard license agreement
Confidential Exhibit 78-3: Agreement relating to U.S. Patent No. 6,150,947
Confidential Exhibit 78-4: Agreement relating to U.S. Patent No. 5,825,427
Confidential Exhibit 78-5: Document relating to licensing of U.S. Patent No. 5,825,427
Confidential Exhibit 78-6: Licensing communications
Confidential Exhibit 78-7: Source Audio license
Exhibit 79: HP ITC complaint in Inv. No. 337-TA-606, dated April 19, 2007
Exhibit 80: Claim chart applying U.S. Patent No. 5,825,427 to HP domestic industry product
Exhibit 80-1: Printout of offer for sale in U.S. ofHP domestic industry product on HP Online store.
-Vlll- APPENDICES TO COMPLAINT
Appendix A: Certified copy of file history for U.S. Patent No. 6,150,947
Appendix B: Copies of each reference mentioned in the file history for U.S. Patent No. 6,150,947
Appendix C: Certified copy of file history for U.S. Patent No. 5,825,427
Appendix D: Copies of each references mentioned in the file history for U.S. Patent No. 5,825,427
-lX- I. INTRODUCTION
1. This Complaint is filed by Ogma, LLC (hereinafter, "Ogma") requesting that the
United States International Trade Commission commence an investigation under Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 ("Section 337"), to remedy the unlawful importation into the United States, the sale for importation, and/or the sale within the United
States after importation, by manufacturers, importers, or consignees (or any agent ofthe owner, importer or consignee) of certain motion-sensitive sound effects devices and image display devices and components and products containing same (collectively, "Accused Products") that infringe one or more of United States Letters Patent Nos. 6,150,947 ("the '947 Patent") and
5,825,427 ("the' 427 Patent") (collectively the "Asserted Patents"), Exhibits 1 and 2, respectively.
, 2. On information and belief, the Respondents, Activision Blizzard, Inc.; Apple,
Inc.; Canon, Inc.; Canon USA Inc.; Seiko Epson Corporation; Epson America, Inc.; HTC
America Inc.; HTC Corp.; InFocus Corp.; Jakks Pacific, Inc.; Kyocera Communications, Inc.;
LEGO AJS dba LEGO Group; Lego Systems, Inc.; Lenovo (United States) Inc.; Lenovo Group
Ltd.; Lenovo (Singapore) Pte. Ltd.; Mad Catz, Inc.; Motorola Mobility, Inc.; Nintendo Co., Ltd.;
Nintendo Of America, Inc.; Nyko Technologies, Inc.; Sanyo North America Corp.; Sanyo
Electric Co. Ltd.; Sanyo Electronic Device (U.S.A.) Corporation.; Sharp Corporation; Sharp
Electronics Corporation; Sony Computer Entertainment America, LLC; Sony Corporation; Sony
Corporation of America; Sony Electronics Inc.; Sony Ericsson Mobile Communications USA,
Inc.; Sony Ericsson Mobile Communications AB; Vivitek Corp.; Vtech Electronics North
America, LLC; VTech Holdings, Ltd.; ViewSonic Corp.; WowWee Group Ltd.; and WowWee
USA, Inc. (collectively "Proposed Respondents" or "Respondents"), have engaged in violations of Section 337 through the unlicensed importation into the United States, the sale for
-1- importation, and/or the sale within the United States after importation of Accused Products that infringe one or more claims ofthe Asserted Patents to the detriment ofOgma's and licensees' industry in the United States relating to the Asserted Patents.
3. An industry as required by 19 U.S.c. § 1337(a)(2) and (3) exists in the United
States relating to the technology protected by the Asserted Patents.
4. As relief, Ogma seeks an order, pursuant to Section 337(d), to permanently exclude from entry into the United States Respondents' infringing motion-sensitive sound effects devices and image display devices and components and products containing same. Pursuant to
Section 337(f), Ogma further seeks a permanent cease and desist order, directing Respondent to immediately discontinue importing, selling, marketing, advertising, distributing, offering for sale, transferring and/or soliciting U.S. agents or distributors for Respondents' motion-sensitive sound effects devices and image display devices and components and products containing same.
Finally, Ogma seeks any other relief the ITC deems proper.
II. COMPLAINANT
5. Complainant Ogma is a limited liability company organized and existing under the laws ofthe State of Texas with its principal place of business at 3301 W. Marshall Ave.,
Longview, Texas 75604. Ogma focuses its business on acquiring, licensing and enforcing patented technology in the consumer electronics and communications industry, including the
Asserted Patents.
6. Ogma acquired all rights in the '947 Patent from Shima LLC, a company created by James Shima, the inventor who researched and developed the motion-based technology that is now protected by the '947 Patent. Ogma is, among other things, in the business oflicensing that technology to computer and electronics companies.
-2- 7. Ogma acquired all rights in the '427 Patent from Kenneth MacLeod, the inventor who researched and developed the display technology that is now protected by the' 427 Patent.
Ogma is, among other things, in the business of licensing that technology to computer and
electronics companies.
8. Attached as Exhibit 3 is Ogma, LLC's Certificate of Fact from the State of Texas
showing that Ogma, LLC is a going concern.
III. PROPOSED RESPONDENTS
9. On information and belief, Proposed Respondent Activision Blizzard, Inc.
("Activision") is a Delaware corporation with a principal place of business at 3100 Ocean Park
Boulevard, Santa Monica, California 90405. On information and belief, and as stated more fully
in Paragraphs 52-54, Proposed Respondent Activision is engaged in one or more ofthe
manufacture, importation, sale for importation, or sale after importation into the United States of
infringing motion-sensitive sound effects devices.
10. On information and belief, Proposed Respondent Apple Inc. ("Apple") is a
company organized and existing under the laws of state of California, with its principal place of
business at 1 Infinite Loop, Cupertino, California 95014. On information and belief, and as
stated more fully in Paragraphs 55-58, Proposed Respondent Apple is engaged in one or more of
the manufacture, importation, sale for importation, or sale after importation into the United
States of infringing motion-sensitive sound effects devices, and infringing image display devices,
components and products.
11. On information and belief, Proposed Respondent Canon, Inc. is a Japanese
Corporation with a principal place of business at 30-2, Shimomaruko 3-chome, Ohta-ku, Tokyo
146-8501, Japan. On information and belief, Proposed Respondent Canon USA, Inc
(collectively, "Canon") is a New York corporation with a principal place of business at One
-3- Canon Plaza, Lake Success, New York 11042. On information and belief, and as stated more fully in Paragraphs 59-61, Proposed Respondent Canon is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing image display devices, components and products.
12. On information and belief, Proposed Respondent Seiko Epson Corporation is a
Japanese corporation with a principal place of business at 3-3-5 Ow a, Suwa, Nagano 392-8502,
Japan. On information and belief, Proposed Respondent Epson America, Inc. (collectively,
"Epson") is a California corporation with a principal place of business at 3840 Kilroy Airport
Way, Long Beach, California 90806. On information and belief, and as stated more fully in
Paragraphs 62-64, Proposed Respondent Seiko Epson Corporation is engaged in one or more of the manufacture, sale for importation and importation into the United States, and Proposed
Respondent Epson America, Inc. is engaged in one or more of the importation and sale after importation into the United States of infringing image display devices, components and products.
13. On information and belief, Proposed Respondent HTC Corporation is a
Taiwanese corporation with a principal place of business at 23 Xinghua Rd., Taoyuan 330,
Taiwan. On information and belief, Proposed Respondent HTC America, Inc. (collectively,
"HTC") is a Washington corporation with a principal place of business at 13920 SE Eastgate
Way, Suite 400 Bellevue, Washington 98005. On information and belief, and as stated more fully in Paragraphs 65-68, Proposed Respondent HTC Corporation is engaged in one or more of the manufacture, sale for importation and importation into the United States and Proposed
Respondent HTC America, Inc. is engaged in one or more ofthe importation and sale after importation into the United States of infringing motion-sensitive sound effects devices and infringing image display devices, components and products.
-4- 14. On information and belief, Proposed Respondent InFocus Corp. is an Oregon corporation with a principal place of business at 13190 SW 68th Parkway, Suite 200, Portland,
OR 97223-8368. On information and belief, and as stated more fully in Paragraphs 69-71,
Proposed Respondent InFocus is engaged in one or more of the manufacture, sale for importation, importation and sale after importation into the United States of infringing motion sensitive sound effects devices.
15. On information and belief, Proposed Respondent Jakks Pacific, Inc. ("Jakks") is a
Delaware corporation with its principal place of business at 22619 Pacific Coast Highway,
Malibu, California 90265. On information and belief, and as stated more fully in Paragraphs 72-
74, Proposed Respondent Jakks is engaged in one or more ofthe manufacture, sale for importation, importation and sale after importation into the United States of infringing motion sensitive sound effects devices.
16. On information and belief, Proposed Respondent LEGO NS doing business as
LEGO Group, is a Danish corporation with a principal place of business at Aastvej 1, Dk-7190
Billund, Denmark. Proposed Respondent LEGO Systems, Inc. (collectively, "LEGO") is a
Delaware corporation with a principal place of business at 555 Taylor Road, Enfield,
Connecticut 06082. On information and belief, and as stated more fully in Paragraphs 75-77,
Proposed Respondent LEGO Group is engaged in one or more of the manufacture, sale for importation and importation, and Proposed Respondent LEGO Systems, Inc. is engaged in one or more of the importation and sale after importation into the United States of infringing motion sensitive sound effects devices.
17. On information and belief, Proposed Respondent Lenovo (United States) is a
North Carolina corporation with a principal place of business at 1009 Think Place, Morrisville,
NC 27560. On information and belief, Proposed Respondent Lenovo Group Ltd. is a Chinese
-5- corporation with a principal place of business at No.6 Chuang Ye Road, Shangdi, Information
Industry Base, Haidian District, Beijing 100085, China. On information and belief, Proposed
Respondent Lenovo (Singapore) Pte. Ltd. (collectively, "Lenovo") is a Singaporean corporation with a principal place of business at New Tech Park, 151 Lorong, Chuan, (S) 556741 at
Serangoon Garden, Singapore. On information and belief, and as stated more fully in Paragraphs
78-80, Proposed Respondent Lenovo (United States) is engaged in one or more of the importation and sale after importation into the United States, Proposed Respondent Lenovo
Group Ltd. is engaged in one or more of the manufacture, sale for importation and importation into the United States, and Proposed Respondent Lenovo (Singapore) Pte. Ltd. is engaged in one or more of the manufacture, sale for importation and importation into the United States of infringing image display devices, components and products.
18. On information and belief, Proposed Respondent Mad Catz, Inc. ("Mad Catz") is a Delaware corporation with a principal place of business at 7480 Mission Valley Road, Suite
101, San Diego, California 92108. On information and belief, and as stated more fully in
Paragraphs 81-83, Proposed Respondent Mad Catz is engaged in one or more of the manufacture, sale for importation, importation and sale after importation into the United States of infringing motion-sensitive sound effects devices.
19. On information and belief, Proposed Respondent Motorola Mobility, Inc.
("Motorola") is a Delaware corporation with a principal place of business at 600 North U.S.
Highway 45, Libertyville, Illinois 60048. On information and belief, and as stated more fully in
Paragraphs 84-87, Proposed Respondent Motorola is engaged in one or more of the manufacture, sale for importation, importation and sale after importation into the United States of infringing motion-sensitive sound effects devices and infringing image display devices, components and products.
-6- 20. On information and belief, Proposed Respondent Nintendo Co., Ltd., is a
Japanese corporation with a principal place of business at 11-1 Kamitoba-hokotate-cho, Minami ku. Kyoto 601-8501, Japan. Proposed Respondent Nintendo of America, Inc. (collectively,
"Nintendo") is a Washington corporation with a principal place of business at 4600 150th
Avenue NE, Redmond, Washington 98052. On information and belief, and as stated more fully in Paragraphs 88-90, Proposed Respondent Nintendo is engaged in one or more of the manufacture, sale for importation, importation and sale after importation into the United States of infringing motion-sensitive sound effects devices.
21. On information and belief, Proposed Respondent Nyko Technologies, Inc.
("Nyko") is a California corporation with a principal place of business at 1990 Westwood Blvd.,
3rd Floor, Los Angeles, California 90025. On information and belief, and as stated more fully in
. Paragraphs 91-93, Proposed Respondent Nyko is engaged in one or more ofthe manufacture, sale for importation, importation and sale after importation into the United States of infringing motion-sensitive sound effects devices.
22. On information and belief, Proposed Respondent Sanyo North America Corp. is a
Delaware corporation with a principal place of business at 2055 Sanyo Avenue, San Diego,
California 92154. On information and belief, Proposed Respondent Sanyo Electric Co. Ltd. is a
Japanese corporation with a principal place at 2-5-5 Keihan-Hondori, Moriguchi-ku, Osaka 570-
8677, Japan. On information and belief, Proposed Respondent Sanyo Electronic Device (U.S.A.)
Corp. is a Delaware corporation with a principal place at 2055 Sanyo Avenue, San Diego,
California 92154. On information and belief, Proposed Respondent Kyocera Communications,
Inc. (collectively, "Sanyo") is a Delaware corporation with a principal place of business at 9520
Towne Centre Drive, San Diego, California 92121. On information and belief, and as stated more fully in Paragraphs 94-:97, Proposed Respondent Sanyo North America Corp. is engaged in
-7- one or more of the importation and sale after importation into the United States, Proposed
Respondent Sanyo Electric Co. Ltd. is engaged in one or more of the manufacture, sale for importation and importation into the United States, Proposed Respondent Sanyo Electronic
Device (U.S.A.) Corp. is engaged in one or more of the importation and sale after importation into the United States, and Proposed Respondent Kyocera Communications, Inc. is engaged in one or more of the manufacture, sale for importation and importation into the United States of infringing motion-sensitive sound effects devices and infringing image display devices, components and products.
23. On information and belief, Proposed Respondent Sharp Corporation is a Japanese corporation with a principal place of business at 22-22 Nagaike-cho, Abeno-ku, Osaka 545-8422,
Japan. On information and belief, Proposed Respondent Sharp Electronics Corporation
(collectively, "Sharp") is a New York corporation with a principal place of business at 1 Sharp
Plaza Mahwah, New Jersey 07495. On information and belief, and as stated more fully in
Paragraphs 98-100, Proposed Respondent Sharp Corporation is engaged in one or more of the manufacture, sale for importation and importation into the United States, and Proposed
Respondent Sharp Electronics Corporation is engaged in one or more ofthe importation and sale after importation into the United States of infringing image display devices, components and products.
24. On information and belief,Proposed Respondent Sony Computer Entertainment
America, LLC is a Delaware limited liability company with a principal place of business at 919
East Hillsdale Blvd., Foster City, California 94404. On information and belief, Proposed
Respondent Sony Corporation is a Japanese corporation with a principal place of business at 1-7-
1 Konan, Minato-ku, Tokyo 108-0075, Japan. On information and belief, Proposed Respondent
Sony Corporation of America is a Delaware corporation with its principal place of business at
-8- 550 Madison Avenue, New York, New York 10022. On information and belief, Sony
Electronics Inc. (collectively, "Sony") is a Delaware corporation with a principal place of business at 16530 Via Esprillo, San Diego, California 92127. On information and belief, and as stated more fully in Paragraphs 101-103, Proposed Respondent Sony Corporation is engaged in one or more of the manufacture, sale for importation and importation into the United States,
Sony Corporation of America is engaged in one or more ofthe importation and sale after importation into the United States, Proposed Respondent Sony Electronics Inc. is engaged in one or more of the importation and sale after importation into the United States, and Proposed
Respondent Sony Computer Entertainment America, LLC is engaged in one or more of the importation and sale after importation into the United States of infringing image display devices, components and products.
25. On information and belief, Proposed Respondent Sony Ericsson Mobile
Communications (USA), Inc. is a Delaware corporation with a principal place of business at
3333 Piedmont Road, Suite 600, Atlanta, Georgia 30305. On information and belief, Proposed
Respondent Sony Ericsson Mobile Communications AB (collectively, "Sony Ericsson") is a
Swedish corporation with a principal place of business at Nya Vattentornet SE-221, 88 Lund,
Sweden. On information and belief, and as stated more fully in Paragraphs 104-107, Proposed
Respondent Sony Ericsson Mobile Communications AB is engaged in one or more of the manufacture, sale for importation and importation into the United States, and Proposed
Respondent Sony Ericsson Mobile Communications (USA), Inc. is engaged in one or more of the importation and sale after importation into the United States of infringing motion-sensitive sound effects devices and infringing image display devices, components and products.
26. On information and belief, Proposed Respondent ViewSonic Corp.
("ViewSonic") is a California corporation with a principal place of business at 381 Brea Canyon
-9- Road, Walnut, California 91789. On information and belief, and as stated more fully in
Paragraphs 108-110, Proposed Respondent ViewSonic is engaged in one or more of the manufacture, sale for importation, importation and sale after importation into the United States of infringing image display devices, components and products.
27. On information and belief, Proposed Respondent Vivitek Corporation ("Vivitek") is a California corporation with a principal place of business at 4425 Cushing Parkway, San Jose,
California 94538. On information and belief, and as stated more fully in Paragraphs 111-113,
Proposed Respondent Vivitek is engaged in one or more of the manufacture, sale for importation, importation and sale after importation into the United States of infringing image display devices, components and products.
28. On information and belief, Proposed Respondent VTech Electronics North
America, LLC is a Delaware limited liability company with a principal place of business at 1155
W. Dundee, Suite 130, Arlington Heights, Illinois 60004; On information and belief, Proposed
Respondent VTech Holdings, Ltd. (collectively, "VTech") is a Bermudian corporation with a principal place of business at 23/F, Tai Ping Industrial Centre, Block 1, 57 Ting Kok Rd., Tai Po,
New Territories, Hong Kong. On information and belief, and as stated more fully in Paragraphs
114-116, Proposed Respondent VTech Holdings, Ltd. is engaged in one or more of the manufacture, sale for importation and importation into the United States, and Proposed
Respondent VTech Electronics North America, LLC is engaged in one or more ofthe importation and sale after importation into the United States of infringing motion-sensitive sound effects devices.
29. On information and belief, Proposed Respondent WowWee Group Ltd. is a Hong
Kong corporation with a principal place of business at Energy Plaza, 3F, 92 Granville Road,
Tsim Sha Tsui East, Hong Kong. On information and belief, Proposed Respondent WowWee
-10- USA, Inc. (collectively, "WowWee") is a Delaware corporation with a principal place of business at 5963 La Place Court, Suite 207, Carlsbad, California 92008. On information and belief, and as stated more fully in Paragraphs 117-119, Proposed Respondent WowWee Group
Ltd. is engaged in one or more of the manufacture, sale for importation and importation into the
United States, and Proposed Respondent WowWee USA, Inc. is engaged in one or more ofthe importation and sale after importation into the United States of infringing motion-sensitive sound effects devices.
IV. THE PATENTS, TECHNOLOGY AND PRODUCTS AT ISSUE!
A. Overview and Ownership of the Asserted Patents
1. The '947 Patent
30. United States Patent No.6, 150,947, entitled "Programmable Motion Sensitive
Sound Effects Device," issued on November 21,2000 to inventor James Shima. Exhibit 1.
The '947 Patent issued from Application No. 09/391791 filed on September 8, 1999. Id.
31. The '947 Patent has four independent claims and 16 dependent claims. Exhibit 1.
Ogma is currently asserting one or more of claims 1, 6, 7 and 9 against certain Respondents, as stated herein. Further investigation and discovery may lead to the assertion of additional claims of the '947 Patent against one or more Respondents.
32. Ogma owns by assignment the entire right, title and interest in and to the '947
Patent. Certified copies ofthe recorded assignments of the '947 Patent are attached as Exhibit 4.
33. Pursuant to Commission Rule 21O.12(c) this Complaint includes a certified copy and three copies thereof of the prosecution history of the '947 Patent. See Appendix A.
The text in this Complaint, including this section (i.e., "Non-Technical Description ofthe '427 Patented Invention"), does not, and is not intended to, construe either the specification or claims of the patent.
-11- Pursuant to Commission Rule 21 0.12( c), this Complaint includes four copies of each reference mentioned in the '947 Patent and/or its prosecution history. See Appendix B.
34. There are no foreign counterpart patents or patent applications for the '947 Patent, and no foreign counterpart patent applications have been denied, abandoned or withdrawn.
35. As required under Commission Rule 21 0.12( a)(9)(iii), a list oflicensed entities is
attached to this Complaint as Confidential Exhibit 5. On information and belief, there are no other current licenses involving the '947 Patent.
2. The '427 Patent
36. United States Letters Patent No. 5,825,427, entitled "Image Display System" issued on October 20, 1998 to inventor Kenneth J. MacLeod. Exhibit 2. The '427 Patent is based on United States patent application serial No. 08/518,583, filed on August 22, 1995. Id.
37. The '427 Patent has 4 claims, of which claims 1,3 and 4 are independent. Exhibit
2. Claim 2 is dependent. Ogrna, LLC is asserting claim 3 of the' 427 Patent against certain
Respondents (collectively, with the asserted claims of the '927 Patent, the "Asserted Claims").
Further investigation and discovery may lead to the assertion of additional claims of the' 427
·Patent against one or more Respondents.
38. Ogma owns by assignment the entire right, title and interest in and to the' 427
Patent. Certified copies of the recorded assignments of the '427 Patent are attached as Exhibit 6.
39. Pursuant to Commission Rule 210.12(c) this Complaint includes a certified copy and three copies thereof of the prosecution history of the' 427 Patent. See Appendix C. Pursuant to Commission Rule 21 0.12( c), this Complaint includes four copies of each reference mentioned in the '427 Patent and/or its prosecution history. See Appendix D.
40. There are no foreign counterpart patents or patent applications for the' 427 Patent, and no foreign counterpart patent applications have been denied, abandoned or withdrawn.
-12- 41. As required under Commission Rule 210. 12(a)(9)(iii), a list oflicensed entities is attached to this Complaint as Confidential Exhibit 7. On information and belief, there are no other current licenses involving the' 427 Patent. Below is a table that summarizes which claims of the Asserted Patents Ogma is asserting against each respondent (or related group of respondents):
== .S=! ~ 0 Eo == .s 0 co: '0 .~ == ::'" U i: u ~ ..:.0:: 0 u .c: ~ == 0== U ~ '0 .$ ~== ~ E' ~ ~ ~ ~ -a ~ ~ ~ co: ~ j == '"c. j======.c: == i :E ~ ~ a ~ ~ ....== ~ ! :E ~ z i: J3 rJJ ~ ~ ;; > > ~ 1 x x x x x x x x x x x x x 6 x x x x x x '947 Patent 7 x x 9 x x x x x x x x x x x x x '427 Patent 3 x x x x x x x x x x x x x x
B. Nontechnical Description Of The Asserted Patents
1. Nontechnical Description Of The '947 Patent
42. Ogma's '947 Patent discloses a novel sound-effect device that couples a motion- sensitive actuator and a playback component to produce sounds associated with accelerations of the device. Electronic devices that employ the inventions claimed in the '947 Patent, such as cellular phones, tablet computers, toys, video game devices and other electronics devices, employ an accelerometer that detects changes in motion and uses such changes to trigger the playing of sound effects.
43. The basic layout of a device that practices one or more claims of the '947 Patent is shown in Figure 2 (reproduced below), one embodiment shown in the '947 Patent:
-13- ~------, n·': 122 I I 1 ~ ...L : : Mceh:roowlet Fig. 2 r~-D -:!:- Sl
~ .- _... "'-"' .. -----" ~ "-" ~ .. ----"'-'" "~~!
~-tffi·peaur~ it .: .: !--1-+--i-''';Amplifier, ~
...... ,-,-,-...... ' III 1
; : ;...... "'~ ...... ~ ... _ ..M~ ... ~"'''' ..~ ...... ,...... J:
44. At the time of the invention, the '947 Patent presented a unique and novel use for
accelerometers. By coupling the accelerometer to a signal processor and playback component, the '947 Patent enabled a new generation of motion-realistic, sound producing devices. Using the technology disclosed in the '947 Patent, children can, for the first time, wield a toy Star
Wars® lightsaber and hear the distinctive "waving" sound ofthe blade associated with
accelerating it toward a pretend target. It was not until recently that the invention has been adopted into virtually every cellular "smart" phone, tablet computer and video game controller available.
2. Nontechnical Description Of The '427 Patent
45. The '427 Patent is directed to an improved image display system that optimally produces video images that have aspect ratios intermediate to those of the traditional 4:3 aspect ratio of standard television ("SDTV") and the 16:9 ratio of high definition television ("HDTV").
Video images are typically formatted with the same aspect ratio as the display system that will be displaying the video. An aspect ratio is the ratio of the horizontal resolution ofthe displayed image to the vertical resolution ofthe displayed image (i.e., horizontal:vertical). The purpose of
-14- matching the aspect ratios of a video image to a corresponding display system is to ensure that the system's full screen is used to display the image.
46. In general, video images are provided in one of two primary formats: a traditional
4:3 aspect ratio for SDTV or a wide-format 16:9 aspect ratio for HDTV. Because the aspect ratios are different for these two systems, problems may arise when video images formatted for one system are displayed on another system. For example, if a video image formatted for HDTV
(16:9) is displayed on a standard television system (4:3), then a substantial portion of the screen above and below the image is not used (see figure below on left). Similarly, if a video image formatted for SDTV (4:3) is displayed on a HDTV system (16:9), then a substantial portion of the screen on the left and right sides of the image is unused (see figure below on right). Not only is it inefficient and annoying to the viewer to have an unused screen portion, it can also cause uneven degradation of some display systems.
21 21
~.. ______~19
5 5 23 9
FIG. 4
47. The patented invention alleviates these prpblems by creating a video display system that can produce images of intermediate aspect ratios, which effectively maximizes the portion of screen that is used to display either SDTV or HDTV images. In one embodiment of the invention, the system can display either a 4:3 video image or a 16:9 video image by using a
-15- video screen with an intennediate aspect ratio that is between the aspect ratio of SDTV and the aspect ratio ofHDTV. In the preferred embodiment, the optimum aspect ratio of the patented display system is the geometric mean of 4:3 and 16:9 (or 1.54: 1.0), which maximizes display area usage (or minimizes unused display area) when reproducing either 4:3 SDTV or 16:9
HDTV fonnats.
48. Using the patented invention maximizes the portion of a display system's full screen that can be used with 4:3, 16:9 and other display formats. Similarly, using the patented invention makes it unnecessary to clip or distort a video image prior to its display to fill the video screen. As a result, the improved display does not detract from the viewer's enjoyment. v. UNLAWFUL AND UNFAIR ACTS OF THE PROPOSED RESPONDENTS RESPONDENTS' UNFAIR TRADE PRACTICES
49. Each Respondent has engaged in unfair trade practices, including the manufacture abroad, sale for importation into the United States, importation into the United States, and/or sale in the United States after importation of certain electronic devices that infringe one or more of the Asserted Claims of the Asserted Patents. Exemplary instances of such unfair trade practices and infringing products (the "Accused Products") are provided below for each Respondent.
50. On infonnation and belief, each ofthe Respondents had notice ofthe Asserted
Patents since before the filing of this Complaint at least as early as the date that each Respondent was served with a copy of a complaint for patent infringement previously filed in the United
States District Court for the Eastern District of Texas, as set forth in more detail in Paragraphs
123-126.
51. Exemplary instances of importation and sale of infringing products are set forth below.
-16- A. Activision
52. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, Activision is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On information and belief, the Accused Products include at least the following Activision products: Guitar Hero; Rapala Pro Bass Fishing; Tony Hawk Ride; and
Tony Hawk Shred. Exemplary instances of importation and sale of infringing Activision products are set forth below.
53. On information and belief, Activision imports the Rapala Pro Bass Fishing controller into the United States from Taiwan. See Exhibit 8 (import record documenting specific instance of importation).
54. On information and belief, Activision infringes directly and/or induces or contributes to the direct infringement of at least claims 1 and 9 ofthe '947 Patent. On information and belief, Activision directly infringes at least claims 1 and 9 of the '947 Patent by importing, selling offering for sale, testing and/or using the Activision Accused Products in the
United States. On information and belief, Activision was aware of the '947 Patent at least as of
March 7, 2011. Further, on information and belief, Activision knowingly induces users of one or more of Activision's Accused Products to infringe at least claims 1 and 9 of the '947 Patent by instructing end users to use the Accused Products in connection with gaming consoles and sound systems. On information and belief, Activision also contributes to infringement of at least claims
1 and 9 ofthe '947 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary
-17- chart that applies independent claims 1 and 9 of the '947 Patent to the accused Rapala Pro Bass
Fishing product line is attached to this Complaint as Exhibit 9.
B. Apple
55. On information and belief, either by itself, through its subsidiaries, or through
third parties acting on its behalf, Apple is engaged in one or more of the manufacture,
importation, sale for importation, or sale after importation into the United States of infringing
electronic devices. On information and belief, the Accused Products include at least the
following Apple products: iPad, iPhone, iPod Touch, 15-inch MacBook Pro. Exemplary
instances of importation and sale of infringing Apple products are set forth below.
56. On information and belief, the Apple iPhone is assembled in China. The
submitted photograph of the iPhone packaging indicates that the device is "Assembled in China."
See Exhibit 10. The Apple iPhone is imported into the United States and sold after importation
in the United States through the online Apple store (http://store.apple.comlus and
http://buyiphone.apple.com), and in Apple's own retail stores. See Exhibit 11.
57. On information and belief, Apple infringes directly and/or induces or contributes
to the direct infringement of at least claims 1,6 and 9 of the '947 Patent. On information and
belief, Apple directly infringes at least claims 1,6 and 9 ofthe '947 Patent by importing, offering
for sale, selling, testing and/or using certain Apple Accused Products in the United States. On
information and belief, Apple was aware of the '947 Patent at least as of March 18,2011.
Further, on information and belief, Apple knowingly induces users of one or more of Apple's
Accused Products to infringe at least claims 1,6 and 9 ofthe '947 Patent by instructing end users
to use the infringing features of certain Accused Products. On information and belief, Apple also
contributes to infringement of at least claims 1,6 and 9 of the '947 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the
-18- Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claims 1 and 9 and dependent claim 6 of the '947 Patent to the accused Apple iPhone product line is attached to this
Complaint as Exhibit 12.
58. On information and belief, Apple infringes directly and/or induces or contributes to the direct infringement of at least claim 3 of the' 427 Patent. On information and belief,
Apple directly infringes at least claim 3 of the '427 Patent by importing, offering for sale, selling, testing and/or using certain Apple Accused Products in the United States. On information and belief, Apple was aware of the '427 Patent at least as of March 28, 2011.
Further, on information and belief, Apple knowingly induces users of one or more of Apple's
Accused Products to infringe at least claim 3 ofthe '427 Patent by instructing end users to use the infringing features of certain Accused Products. On information and belief, Apple also contributes to infringement of at least claim 3 of the' 427 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the Asserted
Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claim 3 of the' 427 Patent to the accused Apple iPhone product line is attached to this Complaint as Exhibit 13.
e. Canon
59. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, Canon is engaged in one or more ofthe manufacture, importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On information and belief, the Accused Products include at least the following products: LV-8215; LV-8300; and LV-831O. Exemplary instances of importation and sale of infringing products are set forth below.
-19- 60. On information and belief, the Accused Products are assembled in a foreign
country and imported into the United States. See Exhibits 14 and 15 (detailing sale after
importation of the LV-8215 product in the United States). The submitted photograph of the LV-
8215 packaging indicates that the device is "Made in China." See Exhibit 14. The LV -8215 is
imported into the United States and sold after importation in the United States through the online
Canon store (http://shop.usa.canon.com). See Exhibit 15.
61. On information and belief, Canon infringes directly and/or induces or contributes
to the direct infringement of at least claim 3 of the '427 Patent. On information and belief,
Canon directly infringes at least claim 3 of the' 427 Patent by importing, offering for sale,
selling, testing and/or using the Canon Accused Products in the United States. On information
and belief, Canon was aware of the '427 Patent at least as of March 28,2011. Further, on
information and belief, Canon knowingly induces users of one or more of Canon's Accused
Products to infringe at least claim 3 of the '427 Patent by instructing end users to use the
infringing features of the Accused Products. On information and belief, Canon also contributes
to infringement of at least claim 3 of the' 427 Patent. In particular, one or more of the Accused
Products are specially adapted for an infringing use of one or more of the Asserted Claims, and
the Accused Products are not staple articles of commerce suitable for substantial noninfringing
use~ An exemplary chart that applies independent claim 3 of the '427 Patent to the representative
accused Canon LV-8215 product line is attached to this Complaint as Exhibit 16.
D. Epson
62. On information and belief, either by itself, through its subsidiaries, or through
third parties acting on its behalf, Epson is engaged in one or more ofthe manufacture, importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On information and belief, the Accused Products include at least the
-20- following products: EX7200. Exemplary instances of importation and sale of infringing products are set forth below.
63. On information and belief, the Accused Products are assembled in a foreign country and imported into the United States. See Exhibit 17 (import record documenting specific instance of importation of the Accused Product into the United States by Epson). Epson sells certain of the Epson Accused Products imported into the United States and sold after importation in the United States directly through the online Epson store (http://epson.com). See
Exhibit 18.
64. On information and belief, Epson infringes directly and/or induces or contributes to the direct infringement of at least claim 3 of the' 427 Patent. On information and belief,
Epson directly infringes at least claim 3 of the' 427 Patent by importing, offering for sale, selling, testing and/or using the Epson Accused Products in the United States. On information and belief, Epson was aware of the' 427 Patent at least as of March 28, 2011. Further, on information and belief, Epson knowingly induces users of one or more ofEpson's Accused
Products to infringe at least claim 3 of the '427 Patent by instructing end users to use the infringing features of the Accused Products. On information and belief, Epson also contributes to infringement of at least claim 3 of the' 427 Patent. In particular, one or more of the Accused
Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claim 3 of the '427 Patent to the representative accused Epson EX7200 product line is attached to this Complaint as Exhibit 19.
E. HTC
65. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, HTC is engaged in one or more of the manufacture,
-21- importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On information and belief, the Accused Products include at least the
following HTC products: Wildfire; Wildfire 6225/ADR6225 (HTC Bee); T-Mobile HD7; HD2
T8588; Surround T8788; Aria A6380; Sprint Evo 4G A9292 (HTC Supersonics); Sprint Evo 4G
Shift (HTC Knight); Tattoo A3232 (HTC Click 100); Droid Incredible; Legend A6365 Dell;
Droid Eris A6376; Tilt 2 T7377 (Rhodium 300); Pure (Topez 210); Imagio XV6975 (Whitestone
100); Touch Pr02 XV6875 (Rhodium 100); Hero 100 (T-Mobile myTouch2); Nexus One
(Passion); Desire HD; myTouch HD / myTouch 4G (HTC Glacier); myTouch 3G (HTC
Sapphire 300); MDA Vario V (HTC Rhodium 100); G2 (HTC Vision); G2 touch (HTC hero
100); Ameo 16GB (HTC Athena 400); myTouch2 3G Slide (HTC Espresso); myTouch 3G Jack
(Fender, HTC Sapphire); Vision (T-Mobile G2); and the Ameo 16GB (HTC Athena 400).
Exemplary instances of importation and sale of infringing HTC products are set forth below.
66. On information and belief, the HTC Accused Products are assembled in a foreign country and imported into the United States. See Exhibit 20 (HTC ITC Complaint), ,,66-67.
HTC sells certain of the HTC Accused Products imported into the United States and sold after importation in the United States directly through the online HTC store
(http://shopamerica.htc.com). See Exhibit 21.
67. On information and belief, HTC infringes directly and/or induces or contributes to the direct infringement of at least claims 1,6 and 9 of the '947 Patent. On information and belief, HTC directly infringes at least claims 1, 6 and 9 of the '947 Patent by importing, offering for sale, selling, testing and/or using certain HTC Accused Products in the United States. On information and belief, HTC was aware of the '947 Patent at least as of March 18,2011.
Further, on information and belief, HTC knowingly induces users of one or more ofHTC's
Accused Products to infringe at least claims 1,6 and 9 of the '947 Patent by instructing end users
-22- to use the infringing features of certain Accused Products. On information and belief, HTC also contributes to infringement of at least claims I, 6 and 9 of the '947 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the
Asserted Claims, and the Accused Products are not staple articles of commerce suitable for
substantial noninfringing use. An exemplary chart that applies independent claims 1 and 9 and
dependent claim 6 of the '947 Patent to the accused HTC Droid Incredible product line is
attached to this Complaint as Exhibit 22.
68. On information and belief, HTC infringes directly and/or induces or contributes to
the direct infringement of at least claim 3 ofthe '427 Patent. On information and belief, HTC
directly infringes at least claim 3 of the '427 Patent by importing, offering for sale, selling,
testing and/or using certain HTC Accused Products in the United States. On information and
belief, HTC was aware of the '427 Patent at least as of March 28,2011. Further, on information
and belief, HTC knowingly induces users of one or more ofHTC's Accused Products to infringe
at least claim 3 of the' 427 Patent by instructing end users to use the infringing features of certain
Accused Products. On information and belief, HTC also contributes to infringement of at least
claim 3 of the '427 Patent. In particular, one or more ofthe Accused Products are specially
adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products
are not staple articles of commerce suitable for substantial noninfringing use. An exemplary
chart that applies independent claim 3 of the' 427 Patent to the accused HTC Aria product line is
attached to this Complaint as Exhibit 23.
F. InFocus
69. On information and belief, either by itself, through its subsidiaries, or through
third parties acting on its behalf, InFocus is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing
-23- electronic devices. On information and belief, the Accused Products include at least the following products: IN3916; IN3904; IN2116; INII02; IN1503; IN3116; IN146; IN5104;
IN5110; IN5304; IN5502; IN5532; IN5533; IN5535; IN5124; and INll02. Exemplary instances of importation and sale of infringing products are set forth below.
70. On information and belief, the Accused Products are assembled in a foreign country and imported into the United States. See Exhibit 24 (import record showing InFocus' importation of the IN5533 Accused Product into the United States).
71. On information and belief, InFocus infringes directly and/or induces or contributes to the direct infringement of at least claim 3 ofthe '427 Patent. On information and belief, InFocus directly infringes at least claim 3 of the '427 Patent by importing, offering for sale, selling, testing and/or using the InFocus Accused Products in the United States. On " information and belief, InFocus was aware of the '427 Patent at least as of March 28,2011.
Further, on information and belief, InFocus knowingly induces users of one or more ofInFocus'
Accused Products to infringe at least claim 3 of the' 427 Patent by instructing end users to use the infringing features of the Accused Products. On information and belief, InFocus also contributes to infringement of at least claim 3 of the' 427 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the Asserted
Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claim 3 of the' 427 Patent to the representative accused InFocus IN5533 product line is attached to this Complaint as Exhibit 25.
G. Jakks
72. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, Jakks is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing
-24- electronic devices. On information and belief, the Accused Products include at least the following Jakks products: Jakks Pacific Ultimotion Swing Zone Sports Motion Controller Video
Game; Star Wars Republic Squadron Video Game System; Toy Story 3 Motion Video Game
System; SpongeBob Motion Plug N Play; Motion Control Disney Fairies, and other Ultimotion video game system products. Exemplary instances of importation and sale of infringing Jakks products are set forth below.
73. On information and belief, Jakks imports the Accused Products into the United
States from Singapore. See Exhibit 26 (import record documenting specific instance of importation of the Accused Product into the United States by Jakks).
74. On information and belief, Jakks infringes directly and/or induces or contributes to the direct infringement of at least claims 1 and 9 of the '947 Patent. On information and belief, Jakks directly infringes at least claims 1 and 9 of the '947 Patent by importing, selling, offering for sale, testing and/or using the Jakks Accused Products in the United States. On information and belief, Jakks was aware ofthe '947 Patent at least as of March 7, 2011. Further, on information and belief, Jakks knowingly induces users of one or more of Jakks' Accused
Products to infringe at least claims 1 and 9 of the '947 Patent by instructing end users to use the
Accused Products in connection with gaming consoles and sound systems. On information and belief, Jakks also contributes to infringement of at least claims 1 and 9 of the '947 Patent. In particular, one or more ofthe Accused Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claims 1 and 9 of the '947 Patent to the accused Star Wars Republic Squadron
Video Game System product is attached to this Complaint as Exhibit 27.
-25- H. LEGO
75. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, LEGO is engaged in one or more of the manufacture,
importation, sale for importation, or sale after importation into the United States of infringing
electronic devices. On information and belief, the Accused Products include at least the
following LEGO products: Mindstorm NXT 2.0. Exemplary instances of importation and sale
of infringing LEGO products are set forth below.
76. On information and belief, the LEGO Accused Products are assembled in a
foreign country and imported into the United States. See Exhibits 28-29 (showing importation
and sale after importation ofthe Accused Products). The submitted photograph ofthe LEGO
Mindstorm NXT packaging indicates that it includes "Components made in Denmark, China,
Hungary and the Czech Republic." See Exhibit 28. LEGO sells certain of the LEGO Accused
Products imported into the United States and sold after importation in the United States directly
through the online LEGO store (http://shop.lego.com) and retail LEGO stores. See Exhibit 29.
77. On information and belief, LEGO infringes directly and/or induces or contributes
to the direct infringement of at least claims 1, 7 and 9 ofthe '947 Patent. On information and
belief, LEGO directly infringes at least claims 1, 7 and 9 of the '947 Patent by importing,
offering for sale, selling, testing and/or using the LEGO Accused Products in the United States.
On information and belief, LEGO was aware of the '947 Patent at least as of March 7, 2011.
Further, on information and belief, LEGO knowingly induces users of one or more ofLEGO's
Accused Products to infringe at least claims 1, 7 and 9 ofthe '947 Patent by instructing end users
to use the infringing features of the Accused Products. On information and belief, LEGO also contributes to infringement of at least claims 1, 7 and 9 ofthe '947 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the
-26- Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claims 1 and 9 and dependent claim 7 ofthe '947 Patent to the accused LEGO Mindstorm NXT product line is attached to this Complaint as Exhibit 30.
I. Lenovo
78. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, Lenovo is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On information and belief, the Accused Products include at least the following products: G350; X30; T400; T500; and T41OS. Exemplary instances of importation and sale of infringing products are set forth below.
79. On information and belief, the Accused Products are assembled in a foreign country and imported into the United States. See Exhibit 31 (showing all Lenovo manufacturing locations are outside the United States). Exemplary product T410s is imported into the United
States and sold after importation in the United States through the online Lenovo store
(http://shop.1enovo.comlus). See Exhibit 32.
80. On information and belief, Lenovo infringes directly and/or induces or contributes to the direct infringement of at least claim 3 of the' 427 Patent. On information and belief,
Lenovo directly infringes at least claim 3 ofthe '427 Patent by importing, offering for sale, selling, testing and/or using the Lenovo Accused Products in the United States. On information and belief, Lenovo was aware ofthe '427 Patent at least as of March 29,2011. Further, on information and belief, Lenovo knowingly induces users of one or more of Lenovo's Accused
Products to infringe at least claim 3 of the '427 Patent by instructing end users to use the infringing features of the Accused Products. On information and belief, Lenovo also contributes
-27- to infringement of at least claim 3 of the' 427 Patent. In particular, one or more of the Accused
Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claim 3 of the' 427 Patent to the representative accused Lenovo T410S product line is attached to this Complaint as Exhibit 33.
J. Mad Catz
81. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, Mad Catz is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On information and belief, the Accused Products include at least the following products: Wii remote control and Rock Band controllers. Exemplary instances of importation and sale of infringing Mad Catz products are set forth below;
82. On information and belief, Mad Catz imports the Wii remote and Rock Band controllers into the United States from Hong Kong. See Exhibits 34-35 (import records documenting specific instances of importation of the Accused Product into the United States by
Mad Catz).
83. On information and belief, Mad Catz infringes directly and/or induces or contributes to the direct infringement of at least claims 1 and 9 of the '947 Patent. On information and belief, Mad Catz directly infringes at least claims 1 and 9 of the '947 Patent by importing, selling, offering for sale, testing and/or using the Mad Catz Accused Products in the
United States. On information and belief, Mad Catz was aware of the '947 Patent at least as of
March 7, 2011. Further, on information and belief, Mad Catz knowingly induces users of one or more of Mad Catz's Accused Products to infringe at least claims 1 and 9 of the '947 Patent by instructing end users to use the Accused Products in connection with gaming consoles and sound
-28- systems. On information and belief, Mad Catz also contributes to infringement of at least claims
1 and 9 of the '947 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claims 1 and 9 of the '947 Patent to the accused Wii remote product line is attached to this Complaint as Exhibit 36.
K. Motorola
84. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, Motorola is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On information and belief, the Accused Products include at least the following Motorola products: Droid 2; Droid Pro; and Xoom. Exemplary instances of importation and sale of infringing Motorola products are set forth below.
85. On information and belief, the Motorola Accused Products are assembled in a foreign country and imported into the United States. The submitted photograph of the Xoom packaging indicates that the device is "Assembled in China." See Exhibit 37. The Xoom and
Droid 2 are imported into the United States and sold after importation in the United States through Motorola's online store (http://www.store.motorola.com). See Exhibits 38-39.
86. On information and belief, Motorola infringes directly and/or induces or contributes to the direct infringement of at least claims 1, 6 and 9 ofthe '947 Patent. On information and belief, Motorola directly infringes at least claims 1,6 and 9 ofthe '947 Patent by importing, offering for sale, selling, testing and/or using certain of the Motorola Accused
Products in the United States. On information and belief, Motorola was aware of the '947 Patent at least as of March 21,2011. Further, on information and belief, Motorola knowingly induces
-29- users of one or more of Motorola's Accused Products to infringe at least claims 1,6 and 9 of the
'947 Patent by instructing end users to use the infringing features of certain Accused Products.
On information and belief, Motorola also contributes to infringement of at least claims 1,6 and 9 of the '947 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claims 1 and 9 and dependent claim 6 of the '947 Patent to the accused Motorola
Xoom product line is attached to this Complaint as Exhibit 40.
87. On information and belief, Motorola infringes directly and/or induces or contributes to the direct infringement of at least claim 3 ofthe '427 Patent. On information and belief, Motorola directly infringes at least claim 3 of the '427 Patent by importing, offering for sale, selling, testing and/or using certain ofthe Motorola Accused Products in the United States.
On information and belief, Motorola was aware ofthe '427 Patent at least as of March 29,2011.
Further, on information and belief, Motorola knowingly induces users of one or more of
Motorola's Accused Products to infringe at least claim 3 ofthe '427 Patent by instructing end users to use the infringing features of certain Accused Products. On information and belief,
Motorola also contributes to infringement of at least claim 3 of the' 427 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claim 3 of the' 427
Patent to the accused Motorola Xoom product line is attached to this Complaint as Exhibit 41.
L. Nintendo
88. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, Nintendo is engaged in one or more of the manufacture,
-30- importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On information and belief, the Accused Products include at least the following Nintendo products: Nintendo Wii video game system. Exemplary instances of importation and sale of infringing Nintendo products are set forth below.
89. On information and belief, Nintendo imports the Accused Products into the
United States from Taiwan. See Exhibits 42-43 (documenting specific instance of importation of the Accused Product into the United States by Nintendo). The submitted photograph of the
Nintendo Wii packaging indicates that the device is "Assembled in China." See Exhibit 42. The
Nintendo .Wii is imported into the United States and sold after importation in the United States through retailers. See Exhibit 43 (showing Nintendo Wii offered for sale through Best Buy).
90. On information and belief, Nintendo infringes directly and/or induces or contributes to the direct infringement of at least claims 1 and 9 of the '947 Patent. On information and belief, Nintendo directly infringes at least claims 1 and 9 ofthe '947 Patent by importing, selling, offering for sale, testing and/or using the Nintendo Accused Products in the
United States. On information and belief, Nintendo was aware of the '947 Patent at least as of
March 9, 2011. Further, on information and belief, Nintendo knowingly induces users of one or more ofNintendo's Accused Products to infringe at least claims 1 and 9 of the '947 Patent by instructing end users to use the Accused Products in connection with gaming consoles and sound systems. On information and belief, Nintendo also contributes to infringement of at least claims
1 and 9 ofthe '947 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claims 1 and 9 of the '947 Patent to the accused Wii product line is attached to this Complaint as Exhibit 44.
-31- M. Nyko
91. On infonnation and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, Nyko is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On infonnation and belief, the Accused Products include at least the following Nyko products: Nyko Wand and other Wii remote control products. Exemplary instances of importation and sale of infringing Nyko products are set forth below.
92. On infonnation and belief, Nyko imports the Nyko Wand into the United States from China. See Exhibit 45 (import record documenting specific instance of importation of the
Accused Product into the United States by Nyko). The submitted receipt and photograph of the
Wand packaging demonstrates that the device is sold in the United States and indicates that the device is "Made in China." See Exhibits 46-47.
93. On infonnation and belief, Nyko infringes directly and/or induces or contributes to the direct infringement of at least claims 1 and 9 of the '947 Patent. On infonnation and belief, Nyko directly infringes at least claims 1 and 9 ofthe '947 Patent by importing, selling, offering for sale, testing and/or using the Nyko Accused Products in the United States. On infonnation and belief, Nyko was aware of the '947 Patent at least as of March 18, 2011.
Further, on infonnation and belief, Nyko knowingly induces users of one or more ofNyko's
Accused Products to infringe at least claims 1 and 9 of the '947 Patent by instructing end users to use the Accused Products in connection with gaming consoles and sound systems. On infonnation and belief, Nyko also contributes to infringement of at least claims 1 and 9 of the
'947 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies
-32- independent claims 1 and 9 of the '947 Patent to the accused Wand product line is attached to this Complaint as Exhibit 48.
N. Sanyo
94. On information and belief, either by itself, through its subsidiaries, or through
third parties acting on its behalf, Sanyo is engaged in one or more of the manufacture,
importation, sale for importation, or sale after importation into the United States of infringing
electronic devices. On information and belief, the Accused Products include at least the
following Sanyo products: Sanyo Zio; PLC-ZM5000L; PLC-WTC500L; PLC-WM55001L;
PLC-WM45001L; PLC-WTC500AL; PLC-WXU700A; PLC-WXU30A; PLC-WXU300; PLC
WK2500; PDG-DWLI00; PLC-WL2500; PLC-WR251; PLC-WTC500AL; PLC-WL2503; and
PDG-DWL2500. Exemplary instances of importation and sale of infringing Sanyo products are
set forth below.
95. On information and belief, the Sanyo Accused Products are assembled in a
foreign country and imported into the United States. See Exhibits 49-51. The submitted photograph of the Zio packaging indicates that the device is a "Phone Made In China." See
Exhibit 49. The Zio is imported into the United States and sold after importation in the United
States through retailers. See Exhibit 50 (showing Zio sold by Sanyo retailer Sprint). The PLC
WXU700A is imported into the United States and sold after importation in the United States through retailers. See Exhibit 51 (showing PLC-WXU700A sold by Sanyo retailer
Amazon.com).
96. On information and belief, Sanyo infringes directly and/or induces or contributes to the direct infringement of at least claims 1,6 and 9 of the '947 Patent. On information and belief, Sanyo directly infringes at least claims 1,6 and 9 ofthe '947 Patent by importing, offering for sale, selling, testing and/or using certain of the Sanyo Accused Products in the
-33- United States. On information and belief, Sanyo was aware of the '947 Patent at least as of
March 18,2011. Further, on information and belief, Sanyo knowingly induces users of one or more of Sanyo's Accused Products to infringe at least claims 1,6 and 9 of the '947 Patent by instructing end users to use the infringing features of certain Accused Products. On information and belief, Sanyo also contributes to infringement of at least claims 1, 6 and 9 ofthe '947 Patent.
In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claims 1 and 9 and dependent claim 6 of the '947 Patent to the accused Sanyo Zio product is attached to this Complaint as Exhibit 52.
97. On information and belief, Sanyo infringes directly and/or induces or contributes to the direct infringement of at least claim 3 of the' 427 -Patent. On information and belief,
Sanyo directly infringes at least claim 3 of the' 427 Patent by importing, offering for sale, selling, testing and/or using certain oftheSanyo Accused Products in the United States. On information and belief, Sanyo was aware of the '427 Patent at least as of March 28,2011.
Further, on information and belief, Sanyo knowingly induces users of one or more of Sanyo's
Accused Products to infringe at least claim 3 of the' 427 Patent by instructing end users to use the infringing features of certain Accused Products. On information and belief, Sanyo also contributes to infringement of at least claim 3 of the' 427 Patent. In particular, one or more of the Accused Products'are specially adapted for an infringing use of one or more ofthe Asserted
Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claim 3 of the' 427 Patent to the accused Sanyo PLC-WXU700A product is attached to this Complaint as Exhibit 53.
-34- O. Sharp
98. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, Sharp is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On information and belief, the Accused Products include at least the
following products: PG-D2870W. Exemplary instances of importation and sale of infringing products are set forth below.
99. On information and belief, the Accused Products are assembled in a foreign country and imported into the United States. See Exhibit 54 (import record documenting
specific instance of importation of the Accused Product into the United States by Sharp). The
PG-D2870W is imported into the United States and sold after importation in the United States through Sharp's Online store (http://www.sharpusa.com). See Exhibit 55.
100. On information and belief, Sharp infringes directly and/or induces or contributes to the direct infringement of at least claim 3 of the '427 Patent. On information and belief, Sharp directly infringes at least claim 3 of the' 427 Patent by importing, offering for sale, selling, testing and/or using the Sharp Accused Products in the United States. On information and belief,
Sharp was aware of the '427 Patent at least as of March 29,2011. Further, on information and belief, Sharp knowingly induces users of one or more of Sharp's Accused Products to infringe at least claim 3 of the '427 Patent by instructing end users to use the infringing features of the
Accused Products. On information and belief, Sharp also contributes to infringement of at least claim 3 of the' 427 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary
-35- chart that applies independent claim 3 of the '427 Patent to the representative accused Sharp
T410S product line is attached to this Complaint as Exhibit 56.
P. Sony
101. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, Sony is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On information and belief, the Accused Products include at least the following products: DPV -VR1 00. Exemplary instances of importation and sale of infringing products are set forth below.
102. On information and belief, the Accused Products are assembled in a foreign country and imported into the United States. See Exhibits 57-58 (photograph and sales receipt showing importation ofthe infringing digital picture frame into the United States by Sony). The submitted picture shows that the DPV-VRlOO was "Made in China." See Exhibits 57. The
DPV- VR1 00 products are imported into the United States and sold after importation in the
United States through Sony's retail Sony Style stores. See Exhibit 58 (receipt showing purchase ofDPV-VR100 in the United States).
103. On information and belief, Sony infringes directly and/or induces or contributes to the direct infringement of at least claim 3 of the' 427 Patent. On information and belief, Sony directly infringes at least claim 3 of the' 427 Patent by importing, offering for sale, selling, testing and/or using the Sony Accused Products in the United States. On information and belief,
Sony was aware of the '427 Patent at least as of March 28, 2011. Further, on information and belief, Sony knowingly induces users of one or more of Sony's Accused Products to infringe at least claim 3 of the' 427 Patent by instructing end users to use the infringing features of the
Accused Products. On information and belief, Sony also contributes to infringement of at least
-36- claim 3 of the '427 Patent. In particular, one or more ofthe Accused Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claim 3 of the' 427 Patent to the representative accused Sony
DPF-VR100 product is attached to this Complaint as Exhibit 59.
Q. Sony Ericsson
104. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, Sony Ericsson is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On information and belief, the Accused Products include at least the following Sony Ericsson products: Xperia XS. Exemplary instances of importation and sale of infringing Sony Ericsson products are set forth below.
105. On information and belief, the Sony Ericsson Accused Products are assembled in a foreign country and imported into the United States. See Exhibits 60-61. The submitted photograph of the Xperia XS packaging indicates that the device is "Made in China." See
Exhibit 60. The Xperia XS is imported into the United States and sold after importation in the
United States through Sony Style retail stores. See Exhibit 61 (receipt showing purchase of
Xperia XS in United States from Sony Style store).
106. On information and belief, Sony Ericsson infringes directly and/or induces or contributes to the direct infringement of at least claims 1, 6 and 9 ofthe '947 Patent. On information and belief, Sony Ericsson directly infringes at least claims 1 and 6 ofthe '947 Patent by importing, offering for sale, selling, testing and/or using certain ofthe Sony Ericsson Accused
Products in the United States. On information and belief, Sony Ericsson was aware of the '947
Patent at least as of March IS, 2011. Further, on information and belief, Sony Ericsson
-37- knowingly induces users of one or more of Sony Ericsson's Accused Products to infringe at least claims 1,6 and 9 of the '947 Patent by instructing end users to use the infringing features of certain Accused Products. On information and belief, Sony Ericsson also contributes to infringement of at least claims 1, 6 and 9 of the '947 Patent. In particular, one or more of the
Accused Products are specially adapted for an infringing use of one or more of the Asserted
Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claims 1 and 9 and dependent claim 6 of the '947 Patent to the accused Sony Ericsson Xperia X8 product line is attached to this
Complaint as Exhibit 62.
107. On information and belief, Sony Ericsson infringes directly and/or induces or contributes to the direct infringement of at least claim 3 of the' 427 Patent. On information and belief, Sony Ericsson directly infringes at least claim 3 of the' 427 Patent by importing, offering for sale, selling, testing and/or using certain of the Sony Ericsson Accused Products in the United
States. On information and belief, Sony Ericsson was aware of the' 427 Patent at least as of
March 29,2011. Further, on information and belief, Sony Ericsson knowingly induces users of one or more of Sony Ericsson's Accused Products to infringe at least claim 3 ofthe '427 Patent by instructing end users to use the infringing features of certain Accused Products. On information and belief, Sony Ericsson also contributes to infringement of at least claim 3 of the
'427 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claim 3 of the' 427 Patent to the accused Sony Ericsson Xperia X8 product line is attached to this Complaint as Exhibit 63.
-38- R. ViewSonic
108. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, ViewSonic is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On infoIination and belief, the Accused Products include at least the following products: PJD6531 w; PJD7583w; and Pro8450w. Exemplary instances of importation and sale of infringing products are set forth below.
109. On information and belief, the Accused Products are assembled in a foreign country and imported into the United States. See Exhibit 64 (import record showing that
ViewSonic imports its projector products into the United States from Hong Kong). The Accused
Products are imported into the United States and sold after importation in the United States by
ViewSonic through its online retail site (www.viewsonic.com). See Exhibit 65. .
110. On information and belief, ViewSonic infringes directly andlor induces or contributes to the direct infringement of at least claim 3 of the' 427 Patent. On information and belief, ViewSonic directly infringes at least claim 3 of the '427 Patent by importing, offering for sale, selling, testing andlor using the ViewSonic Accused Products in the United States. On information and belief, ViewSonic was aware ofthe '427 Patent at least as of March 29,2011.
Further, on information and belief, ViewSonic knowingly induces users of one or more of
ViewSonic's Accused Products to infringe at least claim 3 of the '427 Patent by instructing end users to use the infringing features of the Accused Products. On information and belief,
ViewSonic also contributes to infringement of at least claim 3 of the' 427 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claim 3 of the' 427
-39- Patent to the representative accused PJD6531 w product line is attached to this Complaint as
Exhibit 66.
S. Vivitek
111. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, Vivitek is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On information and belief, the Accused Products include at least the following products: D326WX; D330WX; D5l3W; and D537W. Exemplary instances of importation and sale of infringing products are set forth below.
112. On information and belief, the Accused Products are assembled in a foreign country and imported into the United States. See Exhibit 67 (showing evidence that Vivitek imports its projector products into the United States from Shanghai, China). The Accused
Products are imported into the United States and sold after importation in the United States through retailers. Id. (showing D330WX offered for sale through Amazon.com). See Exhibit
68.
1l3. On information and belief, Vivitek infringes directly and/or induces or contributes to the direct infringement of at least claim 3 of the' 427 Patent. On information and belief,
Vivitek directly infringes at least claim 3 of the '427 Patent by importing, offering for sale, selling, testing and/or using the Vivitek Accused Products in the United States. On information and belief, Vivitek was aware ofthe '427 Patent at least as of March 28,2011. Further, on information and belief, Vivitek knowingly induces users of one or more of Vi vitek's Accused
Products to infringe at least claim 3 of the '427 Patent by instructing end users to use the infringing features of the Accused Products. On information and belief, Vivitek also contributes to infringement of at least claim 3 of the' 427 Patent. In particular, one or more of the Accused
-40- Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claim 3 of the '427 Patent to the representative accused D330WX product line is attached to this Complaint as Exhibit 69.
T. VTech
114. On information and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, VTech is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On information and belief, the Accused Products include at least the following products: V.Smile Motion video game system. Exemplary instances of importation and sale of infringing VTech products are set forth below.
115. On information and belief, the VTech Accused Products are assembled in a foreign country and imported into the United States. See Exhibits 70-71. The submitted photograph ofthe V.Smile Motion packaging indicates that the device is "MADE IN CHINA."
See Exhibit 70. The Accused Products are imported into the United States and sold after importation in the United States through VTech's direct online sales
(http://www.vtechkids.com). See Exhibit 71.
116. On information and belief, VTech infringes directly and/or induces or contributes to the direct infringement of at least claims 1 and 9 of the '947 Patent. On information and belief, VTech directly infringes at least claims I and 9 ofthe '947 Patent by testing and/or using the VTech Accused Products in the United States. On information and belief, VTech was aware ofthe '947 Patent at least as ofFebtuary 14,2011. Further, on information and belief, VTech knowingly induces users of one or more ofVTech's Accused Products to infringe at least claims
1 and 9 of the '947 Patent by instructing end users to use the Accused Products in connection
-41- with gaming consoles and sound systems. On infonnation and belief, VTech also contributes to infringement of at least claims 1 and 9 ofthe '947 Patent. In particular, one or more of the
Accused Products are specially adapted for an infringing use of one or more of the Asserted
Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claims 1 and 9 of the '947
Patent to the accused V.Smile Motion Video game system product is attached to this Complaint as Exhibit 72.
U. WowWee
117. On infonnation and belief, either by itself, through its subsidiaries, or through third parties acting on its behalf, WowWee is engaged in one or more of the manufacture, importation, sale for importation, or sale after importation into the United States of infringing electronic devices. On infonnation and belief, the Accused Products include at least the following products: RS Tri-bot™; RoboPanda™; and Cinemin™ Swivel Portable Multimedia
Pico Projector. Exemplary instances of importation and sale of infringing products are set forth below.
118. On infonnation and belief, the Accused Products are assembled in a foreign country and imported into the United States. See Exhibit 73 (import record documenting specific instance of importation of the Accused Product into the United States by WowWee).
119. On infonnation and belief, WowWee infringes directly and/or induces or contributes to the direct infringement of at least claims 1, 6, 7 and 9 ofthe '947 Patent. On infonnation and belief, WowWee directly infringes at least claims 1,6, 7 and 9 of the '947
Patent by testing and/or using certain WowWee Accused Products in the United States. On infonnation and belief, WowWee was aware of the '947 Patent at least as of February 14, 2011.
Further, on infonnation and belief, WowWee knowingly induces users of one or more of
-42- WowWee's Accused Products to infringe at least claim 1,6, 7 and 9 of the '947 Patent by instructing end users to use certain Accused Products in connection with gaming consoles and sound systems. On information and belief, WowWee also contributes to infringement of at least claim 1, 6, 7 and 9 of the '947 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused
Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claims 1 and 9 and dependent claims 6 and 7 ofthe
'947 Patent to the accused WowWee RoboPanda product is attached to this Complaint as Exhibit
74.
120. On information and belief, WowWee infringes directly and/or induces or contributes to the direct infringement of at least claim 3 of the' 427 Patent. On information and belief, WowWee directly infringes at least claim 3 of the '427 Patent by importing, offering for sale, selling, testing and/or using the WowWee Accused Products in the United States. On information and belief, WowWee was aware of the '427 Patent at least as of March 24, 201 I.
Further, on information and belief, WowWee knowingly induces users of one or more of
WowWee's Accused Products to infringe at least claim 3 of the '427 Patent by instructing end users to use the infringing features of the Accused Products. On information and belief,
WowWee also contributes to infringement of at least claim 3 of the '427 Patent. In particular, one or more of the Accused Products are specially adapted for an infringing use of one or more of the Asserted Claims, and the Accused Products are not staple articles of commerce suitable for substantial noninfringing use. An exemplary chart that applies independent claim 3 of the '427
Patent to the representative accused Cinemin™ Swivel Portable Multimedia Pico Projector product line is attached to this Complaint as Exhibit 75.
-43- 121. For the Commission's convenience, Ogma reproduces the following table, which summarizes the patent claims infringed by each Respondent as set forth in the preceding paragraphs:
==~ Eo ~ .~ .tl 0 0 .~ TIl 0 "0 ·c == ] I: ~ ~ I: I: (J= u= c.. u ..9t 0 0 6 .2:! ~ 100 >. .2:! ~ c.. TIl "0 .s j -= ~ c.. == c.. r2 ~ I: I: S :~ ~ ~ I: j== == = i ;, ;, ~ -< a ~ ~ ~ .£; .! :; ~ z :;: r:/'1= -=r:/'1 rJ5 rJ5 ;; ~ 1 x x x x x x x x x x x x x 6 x x x x x x '947 Patent 7 x x 9 x x x x x x x x x x x x x '427 Patent 3 x x x x x x x x x x x x x x
VI. HARMONIZED TARIFF SCHEDULE ITEM NUMBERS
122. On information and belief, the Harmonized Tariff Schedule of the United States
("HTSUS") item numbers under which the infringing electronic products, components thereof, and products containing same have been imported into the United States may be classified under at least 8517, 8528 and 9504.10. These HTSUS classifications are intended for illustration only and are not intended to be restrictive of the accused devices and products.
VII. RELATED LITIGATION
123. On February 3, 2011, Ogma, LLC filed a lawsuit in the United States District
Court for the Eastern District of Texas against the following defendants, accusing each ofthem of patent infringement by virtue of their infringement of the '947 Patent: Activision Blizzard,
Inc.; Bensussen Deutsch & Associates, Inc. D/B/A Power A; Griffin International Companies,
Inc. D/B/A Psyclone; Harmonix Music Systems, Inc.; Intec, Inc.; Jakks Pacific, Inc.; Lego
Systems, Inc.; Mad Catz, Inc.; Nintendo Of America, Inc.; Nyko Technologies, Inc.; Parrot, Inc.;
Performance Designed Products LLC; Playhut, Inc. D/B/A Golive2; Rocky Mountain Radar,
Inc.; Sony Computer Entertainment America, Inc.; Source Audio, LLC; Vtech Electronics North
America, LLC; WowWee Group Ltd.; and WowWee USA, Inc. Ogma has served each
-44- defendant with the district court complaint. To date, only Rocky Mountain Radar, Inc. has answered the district court complaint.
124. On March 11,2011 Ogma, LLC filed a lawsuit in the United States District Court for the Eastern District of Texas against the following defendants, accusing each of them of patent infringement by virtue of their infringement of the '947 Patent: Apple, Inc.; Dell, Inc.;
Hewlett-Packard Company; HTC America, Inc.; Kyocera Communications, Inc.; LG Electronics
MobileComm U.S.A., Inc.; Motorola Mobility, Inc.; Nokia, Inc.; Palm, Inc.; Pantech Wireless,
Inc.; Pharos Science and Applications, Inc.; Research In Motion Corporation; Sony Ericsson
Mobile Communications (USA), Inc.; and T-Mobile USA, Inc. Ogma has served each defendant with the district court complaint. To date, none of the defendants have answered the district court complaint.
125. On March 14,2011 Ogma, LLC filed a lawsuit in the United States District Court for the Eastern District Texas against the following defendants, accusing each of them of patent infringement by virtue of their infringement of the '427 Patent: Apple, Inc.; HTC America, Inc.;
HTC Corporation; LG Electronics MobileComm U.S.A., Inc.; Motorola Mobility, Inc.; Sony
Ericsson Mobile Communications AB; Sony Ericsson Mobile Communications (USA), Inc.; and
T -Mobile USA, Inc. Ogma has served each defendant with the district court complaint. To date, none of the defendants have answered the district court complaint.
126. On March 16,2011 Ogma, LLC filed a lawsuit in the United States District Court for the Eastern District of Texas against the following defendants, accusing each of them of patent infringement by virtue of their infringement of the '427 Patent: 3M Company; ASUSTeK
Computer, Inc.; ASUS Computer International; Canon, Inc.; Canon U.S.A., Inc.; Casio
Computer Co., Ltd.; Casio America, Inc.; Christie Digital Systems USA, Inc.; Coby Electronics
Corp.; Dukane Corporation; Eiki International, Inc.; Seiko Epson Corporation; Epson America,
-45- Inc.; Haier Group Company; Haier America Trading, L.L.C.; InFocus Corporation; Lenovo
Group, Ltd.; Lenovo Holding Company, Inc.; Lenovo (United States), Inc.; LG Electronics, Inc.;
LG Electronics U.S.A., Inc.; Micro-Star International Co., Ltd.; MSI Computer Corp.;
Mitsubishi Electric Corporation; Mitsubishi Electric & Electronics USA, Inc.; NEC Corporation;
NEC Corporation of America; Optoma Corporation; Optoma Technology, Inc.; Panasonic
Corporation; Panasonic Corporation of North America; Planar Systems, Inc.; Runco
International, L.L.C.; Sanyo Electric Co., Ltd.; Sanyo North America Corporation; Sharp
Corporation; Sharp Electronics Corporation; Sony Corporation; Sony Electronics, Inc.;
Supersonic, Inc.; Systemax, Inc.; Toshiba Corporation; Toshiba America Information Systems,
Inc.; ViewSonic Corporation; and Vivitek Corporation. Except for Planar Systems, Inc., Ogma
has served each defendant with the district court complaint. To date, none of the defendants have answered the district court complaint. .
127. On December 18,2006, James MacLeod filed a lawsuit in the United States
District Court for the Central District of California against Hewlett Packard, Inc. and Dell, Inc. alleging infringement of the '427 Patent. The case was settled after Hewlett Packard and Dell took licenses to the' 427 Patent.
128. There have not been any other court or agency actions, domestic or foreign, involving the Asserted Patents.
VIII. THE DOMESTIC INDUSTRY
129. As required by Section 337(a)(2) and defined by Section 337(a)(3), a domestic industry exists in the United States in connection with the Asserted Patents. Ogma and the predecessors-in-interest of the Asserted Patents have made substantial investments in the exploitation ofthe Asserted Patents in the United States. Further, Ogma's licensees have made
-46- substantial investments in plant, equipment, labor and capital in the exploitation of the '947 and
, 427 Patents.
A. A Domestic Industry for the Asserted Patents Exists as a Result of the Domestic Activities of Licensees of the Asserted Patents, as well as the Activities of the Previous Owners of the Asserted Patents.
1. A Domestic Industry Exists for the '947 Patent.
130. As required by Section 337(a)(2) and defined by Section 337(a)(3), an industry in the United States exists in connection with articles protected by the '947 Patent. Ogma has licensed the '947 Patent to Source Audio, Inc., a Massachusetts-based company with its principal place of business at 120 Cummings Park, Woburn, Massachusetts 01801. Source Audio designs and sells products for use with electric guitar and bass instruments.
131. Meeting the economic prong of the domestic industry requirement, Ogrna's licensee, Source Audio, Inc., conducts significant domestic industry activities in the United
States relating to its "Hot Hands" products, which practice the Asserted Patents. These activities include significant investment in plant and equipment, significant employment of labor and capital, and substantial investment in the exploitation of the subject patents, including engineering, research and development. Source Audio, Inc. continues to conduct many activities in the United States that relate to products that practice the '947 Patent. Confidential Exhibit 76.
132. Ogma also satisfies the technical prong of the domestic industry requirement regarding the '947 Patent. Ogrna's licensee, Source Audio, Inc., currently engages in design, research, testing, engineering and development activities for products that practice valid claims of the '947 Patent. These products include, but are not limited to, the Hot Hands Motion
Controlled Phaser Flanger.
133. An exemplary claim chart, attached to this Complaint as Exhibit 77, applies exemplary claim 1 ofthe '947 Patent to Source Audio's Hot Hands Motion Controlled Phaser
-47- Flanger player. This claim chart demonstrates that Source Audio products practice the invention claimed in the '947 Patent.
134. The domestic industry requirement of Section 337(a)(2) in connection with articles protected by the '947 Patent is also evidenced by the development and production of products in the United States that practice the '947 Patent by Mr. James Shima, the inventor of the '947 Patent, who assigned the patent to Ogma. Confidential Exhibit 78 details Mr. Shima's domestic industry activities. For example, in 2010, Mr. Shima formed Shima LLC for the purpose of development and licensing of the claimed invention. Id.
2. A Domestic Industry Exists for the '427 Patent.
135. As required by Section 337(a)(2) and defined by Section 337(a)(3), an industry in the United States also exists in connection with articles protected by the '427 Patent. Ogma's predecessor licensed the' 427 Patent to Hewlett-Packard Company ("HP"). See Confidential
Exhibit 78 (Declaration of Michael Connelly) ~~ 9-10. HP is a California-based company with its principal place of business at 3000 Hanover Street, Palo Alto, California, 94304-1105. See
Exhibit 79 (HP ITC complaint) at caption. HP is a global manufacturer and market leader in desktop, notebook, server and handheld computers and related peripherals, including LCD displays. See id. ~~ 3, 100-102.
136. Meeting the economic prong of the domestic industry requirement, current '427
Patent licensee HP has conducted significant domestic industry activities in the United States relating to its LCD monitor products, which practice the Asserted Patents. These activities include significant investment in plant and equipment, significant employment of labor and capital, and substantial investment in the exploitation ofthe subject patents, including engineering, research and development. HP has sold billions of dollars of products and services, including LCD monitors in the United States. Exhibit 79 (HP ITC complaint) ~~ 4,41-43. As of
-48- 2006, HP's annual research and development budget, a portion of which was devoted to LCD monitors, was almost $4 billion. Id. ~ 4. Ogma can obtain further evidence ofHP's domestic industry through discovery after institution, as necessary.
137. An analysis ofHP's products also demonstrates satisfaction of the technical prong of the domestic industry requirement for the' 427 Patent. Current' 427 licensee HP continues to engage in design, research, testing, engineering and development activities for products that practice valid claims of the '427 Patent. These products include, but are not limited to, the HP
TouchSmart tm2t series notebook computer.
138. An exemplary claim chart attached to this Complaint as Exhibit 80 applies exemplary claim 3 of the '427 Patent to the HP TouchSmart tm2t series notebook computer.
This claim chart demonstrates that HP products practice the invention claimed in the' 427 Patent.
Ogma can obtain further evidence that HP's products practice the '427 Patent through discovery after institution, if necessary.
B. A Domestic Indnstry for the Asserted Patent Exists as a Result of the Licensing Efforts of Ogma and its Predecessors
139. Ogma focuses its business on acquiring, licensing, and enforcing patented technology in the consumer electronics and communications industry. In 2011, Ogma acquired patents relating to consumer electronics and communications devices. The amount ofOgma's investment in this portfolio is provided in Confidential Exhibit 78, Declaration of Michael
Connelly.
140. Ogma and its predecessors have made substantial investments in the research and evaluation of its patent portfolio to identify licensing opportunities in the consumer electronics and communications industry. This due diligence process has included market research, purchase, and analysis of consumer electronics and communications products. Ogma's analysis
-49- has identified infringement of the '947 and' 427 Patents. Confidential Exhibit 78 includes
Ogma's research and evaluation expenditures relating to infringement of the '947 and '427
Patents by various consumer electronics and communications products.
141. Ogma has two persons who pursue licensing of the Asserted Patents. These personnel are responsible for managing the day-to-day operations associated with the acquisition, licensing, and enforcement of Ogma' s patented technology for consumer electronics and communications devices, including the '947 and' 427 Patents.
142. Ogma and its predecessors-in-interest have incurred significant costs to enforce the Asserted Patents through the litigation described in Paragraphs 123-127 of the Complaint.
Confidential Exhibit 78 includes Ogma's legal fees and out-of-pocket expenses relating to the litigation described in those paragraphs.
143. Aside from Ogma's enforcement efforts, Ogma routinely engages in licensing discussions with companies that manufacture and sell consumer electronics and communications devices. For example, Ogma has sent letters to almost 60 entities to invite them to license one or both of the Asserted Patents. The identities of those entities are set forth in Confidential Exhibit
78. Ogma's predecessors have also incurred significant expenditures in conjunction with their efforts to license the Asserted Patents. In addition to the identities of the third parties with which
Ogma and its predecessors have discussed licensing one or more of the Asserted Patents,
Confidential Exhibit 78 also identifies certain costs incurred to pursue those licensing opportunities.
144. As noted above, Ogma and its predecessors have been successful in their efforts to license the Asserted Patents. In addition, Ogma is currently in active licensing negotiations regarding the Asserted Patents with several other entities. Confidential Exhibit 78 provides further details of Ogma and its predecessors' ongoing licensing efforts.
-50- IX. RELIEF REQUESTED
WHEREFORE, by reason of the foregoing, Complainant Ogma respectfully requests that the United States International Trade Commission:
(a) Institute an immediate investigation, pursuant to Section 337 of the Tariff
Act of 1930, as amended, 19 U.S.c. § 1337(a)(1)(B)(i) and (b)(I), with respect to
violations of Section 337 based upon the importation, sale for importation, and sale after
importation, into the United States of Respondents' motion-sensitive sound effects
devices and image display devices and components and products containing same that
infringe one or more of the Asserted Claims of the Asserted Patents;
(b) Schedule and conduct a hearing on said unlawful acts and, following said
hearing;
(c) Issue a permanent exclusion order pursuant to 19 U.S.C. § 1337(d)(I)
barring from entry into the United States all of Respondents' motion-sensitive sound
effects devices and image display devices and components and products containing same
that infringe one or more of the asserted claims of the Asserted Patents;
(d) Issue permanent cease and desist orders, pursuant to 19 U.S.C. § 1337(f),
directing each Respondent to cease and desist from importing, marketing, advertising,
demonstrating, warehousing inventory for distribution, offering for sale, selling,
distributing, licensing, or using Respondents' imported motion-sensitive sound effects
devices and image display devices and components and products containing same that
infringe one or more of the asserted claims of the Asserted Patents; and
(e) Grant such other and further relief as the Commission deems just and
proper based on the facts determined by the investigation and the authority ofthe
Commission.
-51- Dated: April 1, 1 1
J a1 ! 1s C. Ott.eson Dafvld A. Came Thbmas T. Carmack \ ~ XicMg Long AGiLITY IP LAW, LLP 1900 University Circle, Suite 201 East Palo Alto, California 94303 Telephone: (650) 227-4800
Andrew W. Spangler SPANGLER LAW P.c. 208 N. Green St., Suite 300 Longview, Texas 75601 Telephone: (903) 753-9300
Counsel for Complainant Ogma, LLC VERIFlCATiOr\ OF COVIPLAINT
l, , am am execute on contents. To best of my knowledge, inforrnation after an that is reasonable under the circumstances, i hereby as
l. The Complaint is not being tiled any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of the investigation;
2. The claims and legal contentions in Complaint are existing law or by a nonfrivolous argmnent for the extension, modification, or reversal existing law or establishment of nevI'
3. The allegations and other factual contentions in the Complaint have evidentiary support or, if specifically so identified. are likely to have evidentiary support after a rf.'",,,,,n opportunity for further investigation or discovery.
[ declare under penalty of perjury on this 1SI day of April, 20 II that the foregoing is true
correct.
President Ogma,LLC