Case 9:10-cv-81410-KLR Document 60 Entered on FLSD Docket 04/29/2011 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA PERSONAL VOICE FREEDOM, LLC Plaintiff, Civil Action NO.: 9:10-CV-81410-KLR v. YMAX CORPORATION, YMAX COMMUNICATIONS CORP., MAGICJACK LP, JURY DEMANDED TIGER JET NETWORK, INC., and VOCALTEC COMMUNICATIONS, LTD. Defendants. THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT This is an action for patent infringement in which Plaintiff Personal Voice Freedom, LLC (“PVF”) sues Defendants, YMax Corporation, YMax Communications Corp., MagicJack LP, TigerJet Network, Inc. and VocalTec Communications, Ltd. (collectively, “Defendants”) and alleges as follows: THE PARTIES 1. Plaintiff Personal Voice Freedom, LLC is a Delaware limited liability company, having an address at 2711 Centerville Rd., Ste 120, Wilmington, DE 19808. 2. On information and belief, Defendant YMax Corporation is a corporation organized and existing under the laws of Delaware, having its principal place of business at 5700 Georgia Avenue, West Palm Beach, Florida 33405. 3. On information and belief, Defendant YMax Communications Corp. is a corporation organized and existing under the laws of Delaware, having its principal place of business at 5700 Georgia Avenue, West Palm Beach, Florida 33405. Case 9:10-cv-81410-KLR Document 60 Entered on FLSD Docket 04/29/2011 Page 2 of 9 4. On information and belief, Defendant MagicJack LP is a limited partnership organized and existing under the laws of Delaware, having its principal place of business at 5700 Georgia Avenue, West Palm Beach, Florida 33405. 5. On information and belief, Defendant Tiger Jet Network, Inc. is a corporation organized and existing under the laws of California, having its principal place of business at 1270 Oakmead Parkway, Suite 212, Sunnyvale, California 94085. 6. On information and belief, Defendant. VocalTec Communications, Ltd. is a corporation organized and existing under the laws of Israel having its principal U.S. place of business at 5700 Georgia Ave. West Palm Beach, Florida 33405. 7. On information and belief, YMax Communications Corp. and Tiger Jet Network, Inc. are wholly owned subsidiaries of YMax Corporation. YMax Corporation is a limited partner of MagicJack LP. 8. On information and belief, YMax Corporation and VocalTec Communications, Ltd. have merged and YMax Corporation is now a wholly-owned subsidiary of VocalTec Communications, Ltd. JURISDICTION 9. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a) because this action arises under the patent laws of the United States, Title 35, United States Code, including 35 U.S.C. § 271 et seq. The Court has personal jurisdiction over each of the Defendants consistent with the Florida Long Arm Statute, Fla. Stat. § 48.193, and due process. Each Defendant has transacted business in this District and/or, on information and belief, has committed tortious acts within Florida and this District via acts of infringement or induced or contributed others to commit acts of infringement in this District. On information and belief, each Defendant also has operated, conducted, engaged in, or carried on a business or - 2 - Case 9:10-cv-81410-KLR Document 60 Entered on FLSD Docket 04/29/2011 Page 3 of 9 business venture in Florida and this District or has an office or agency in Florida and this District. On information and belief, each Defendant also has engaged in substantial and not isolated activity in Florida and this District, including regularly doing or soliciting business, engaging in other persistent courses of conduct, and/or deriving substantial revenue from goods and services provided to individuals in Florida and this District. Each Defendant also has a registered agent in Florida for the purposes of, inter alia, accepting service of process and thus each lacks any objection to this Court‟s exercise of personal jurisdiction. The exercise of jurisdiction over each of the Defendants thus would not offend traditional notions of fair play and substantial justice and each Defendant has established minimum contacts with this forum. VENUE 10. Venue is proper in this district pursuant to 28 U.S.C. §§ 1331, 1338(a), 1391(b), (c) and (d) and 1400(b). INFRINGEMENT OF U.S. PATENT NO. 7,336,654 B2 11. On February 26, 2008, United States Patent No. 7,336,654 (“the „654 patent”) was duly and legally issued to inventors Robb Barkley, Mark Baker, and Douglas F. Bender for Portable VOIP Service Access Module. A true and correct copy of the „654 patent is attached hereto as Exhibit A. PVF is the owner of the „654 patent and owns all rights in the „654 patent, including the right to sue for infringement of the „654 patent, and collect damages, including past damages, for infringement of the „654 patent. 12. On information and belief, each of the Defendants has directly infringed and continues to directly infringe the „654 patent. The infringing acts of each of the Defendants include making, using, offering to sell, and/or selling the magicJack USB device (including the magicJack devices identified in Defendants‟ response to Interrogatory 1 of Plaintiff‟s First Set of Interrogatories to all Defendants) and magicJack related VoIP services. Further, each of the - 3 - Case 9:10-cv-81410-KLR Document 60 Entered on FLSD Docket 04/29/2011 Page 4 of 9 Defendants have directly infringed and continues to directly infringe the „654 patent, on information and belief, by making and using the magicJack Plus device in connection with its impending release. magicJack Plus can “work[] like the original magicJack, by simply plugging the device into a PC through the USB plug” according to a Defendant press release. On information and belief, Defendants have at least made and used the magicJack plus device in connection with internal development and testing prior to its commercial release. On information and belief, magicJack Plus was demonstrated (and therefore made and used) by Defendants at the Consumer Electronics Show in Las Vegas, Nevada in January 2011. Each of the Defendants is individually liable to Plaintiff for infringement of the „654 patent pursuant to 35 U.S.C. § 271(a). 13. On information and belief, each of Defendants has induced and is now actively inducing infringement of the „654 patent by knowingly, and with specific intent to encourage the infringement, inducing at least end users of the magicJack USB device (including the magicJack devices identified in Defendants‟ response to Interrogatory 1 of Plaintiff‟s First Set of Interrogatories) and magicJack related VoIP services to make or use the magicJack USB device (including the magicJack devices identified in Defendants‟ response to Interrogatory 1 of Plaintiff‟s First Set of Interrogatories) and magicJack related VoIP services that Defendants know or should know infringe one or more claims of the „654 patent. Defendants are thus liable for inducing infringement of the „654 patent pursuant to 35 U.S.C. § 271(b). On information and belief, Defendants have been on specific notice infringement of the „654 patent since the issuance of the patent at least by virtue of the subject matter raised at meetings between Dan Borislow and Paul Arena in late September to early October 2007 (shortly after the „654 patent had been allowed) and subsequent communications between the then owner of the „654 patent and Defendants (such allegations are further detailed in paragraphs 16-23 below and are hereby - 4 - Case 9:10-cv-81410-KLR Document 60 Entered on FLSD Docket 04/29/2011 Page 5 of 9 incorporated by reference as if fully set forth herein). On information and belief, Defendants have acted with deliberate indifference of a known risk that an infringement was occurring and/or have engaged in purposeful, culpable expressions and conduct to encourage infringement by end users of the magicJack USB device (including the magicJack devices identified in Defendants‟ response to Interrogatory 1 of Plaintiff‟s First Set of Interrogatories) and magicJack related VoIP services. 14. On information and belief, each of the Defendants has contributed and is now contributing to infringement of the „654 patent by offering to sell and selling within the United States or importing into the United States the magicJack USB device (including the magicJack devices identified in Defendants‟ response to Interrogatory 1 of Plaintiff‟s First Set of Interrogatories) and magicJack related VoIP services knowing the same to be especially made or especially adapted for use in infringing the „654 patent, and not a staple article or commodity commerce suitable for substantial non-infringing uses (based at least on the April 22, 2011 testimony of Mary Kennon on behalf of Defendants at 123:9-24 (rough transcript)). Defendants are thus liable for contributory infringement of the „654 patent pursuant to 35 U.S.C. § 271(c). On information and belief, Defendants have been on specific notice infringement of the „654 patent since the issuance of the patent at least by virtue of the subject matter raised at meetings between Dan Borislow and Paul Arena in late September to early October 2007 (shortly after the „654 patent had been allowed) and subsequent communications between the then owner of the „654 patent and Defendants (such allegations are further detailed in paragraphs 16-23 below and are hereby incorporated by reference as if fully set forth herein). 15. Each of the Defendants‟ acts of infringement has caused damage to Plaintiff, and Plaintiff is entitled to recover from Defendants the damages sustained by Plaintiff as a result of the Defendants‟ wrongful acts in an amount subject to proof at trial. - 5 - Case 9:10-cv-81410-KLR Document 60 Entered on FLSD Docket 04/29/2011 Page 6 of 9 16. Upon information and belief, Defendants‟ infringement of the „654 patent is and has been willful and deliberate, entitling Plaintiff to increased damages under 35 U.S.C.