Case 5:07-cv-00019-DF Document 1 Filed 01/31/07 Page 1 of 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION Simson Garfinkel, Plaintiff, Civil Action No. 5:07cv19 v. Judge Folsom Decru, Inc., and Network Appliance, Inc., JURY DEMANDED Defendants. COMPLAINT AND JURY DEMAND Plaintiff Simson Garfinkel ("Garfinkel"), by and through his undersigned counsel, for his Complaint against defendants Decru, Inc. ("Decru") and Network Appliance, Inc. ("NetApp"), alleges the following upon information and belief, except as to those allegations concerning Garfinkel, which are alleged upon knowledge: THE PARTIES 1. Garfinkel, a resident of Belmont, Massachusetts, is an Associate Professor at the Naval Postgraduate School in Monterey, California, and a fellow at the Center for Research on Computation and Society at Harvard University. Garfinkel received three Bachelor of Science degrees from the Massachusetts Institute of Technology (MIT) in 1987 and a Ph.D. in Computer Science from MIT in 2005. Garfinkel is the author of numerous publications relating to computer security. 2. Decru is a Delaware Corporation having a principal place of business at 275 Shoreline Drive, Fourth Floor, Redwood City, CA 94065. NYC:721524.6/1-102030 Case 5:07-cv-00019-DF Document 1 Filed 01/31/07 Page 2 of 5 3. NetApp is a Delaware Corporation having a principal place of business at 495 East Java Drive, Sunnyvale, CA 94089. Decru is a wholly-owned subsidiary of NetApp. Decru and NetApp are sometimes collectively referred to herein as "defendants." JURISDICTION AND VENUE 4. This Court has jurisdiction over the subject matter of the claims asserted herein pursuant to 28 U.S.C. §§ 1331 and 1338. 5. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b) and (c) because a substantial part of the events giving rise to the claims occurred in this district, defendants may be found in this judicial district and defendants are subject to personal jurisdiction in this judicial district. Venue is also proper in this judicial district under 28 U.S.C. § 1400(b). 6. Defendants are doing business within this State and judicial district, transact business with this State and judicial district, derive substantial revenue from intra-state and inter- state commerce, have committed acts of patent infringement within this State and judicial district including substantial sales and offers to sell, and are otherwise within the jurisdiction of this Court. INFRINGEMENT OF U.S. PATENT NO. 6,993,661 7. Garfinkel repeats and realleges the allegations set forth above. 8. United States Patent No. 6,993,661 ("the '661 patent"; copy attached hereto as Exhibit A), entitled "System and Method that Provides for the Efficient and Effective Sanitizing of Disk Storage Units and the Like," was duly and legally issued by the United States Patent and Trademark Office on January 31, 2006. Garfinkel is both the inventor and assignee of all rights, title, and interest in and to the '661 patent from MIT and possesses all rights of recovery under the '661 patent, including the right to sue for infringement and recover past damages. NYC:721524.6/1-102030 - 2 - Case 5:07-cv-00019-DF Document 1 Filed 01/31/07 Page 3 of 5 9. Defendants have infringed and continue to infringe the '661 patent under 35 U.S.C. § 271(a) by, directly or through intermediaries, manufacturing, selling, offering for sale, using and/or importing, in this judicial district and elsewhere in the United States, data storage security solutions, including but not limited to, the DataFort® storage security product (see, e.g., Exhibits B and C). 10. NetApp has infringed and continues to infringe the '661 patent by directing and controlling the manufacture, sale, offer for sale and/or importation of the DataFort® storage security product by Decru. 11. NetApp has knowledge of the '661 patent and possesses a specific intent to encourage direct infringement of the '661 patent by others, including but not limited to, Decru and NetApp's customers. Accordingly, NetApp has infringed the '661 patent under 35 U.S.C. § 271(b). NetApp has also contributed to the infringement of the '661 patent by others under 35 U.S.C. § 271(c). 12. Decru has knowledge of the '661 patent and possesses a specific intent to encourage direct infringement of the '661 patent by others, including but not limited to, Decru's customers. Accordingly, Decru has infringed the '661 patent under 35 U.S.C. § 271(b). Decru has also contributed to the infringement of the '661 patent by others under 35 U.S.C. § 271(c). 13. Garfinkel is entitled to recover from defendants the damages sustained as a result of defendants' wrongful acts in an amount to be determined at trial. 14. Defendants' infringement of the '661 patent has been willful and deliberate, entitling Garfinkel to enhanced damages under 35 U.S.C. § 284. 15. This case constitutes and "exceptional case" under 35 U.S.C. § 285, entitling Garfinkel to his reasonable attorneys fees. NYC:721524.6/1-102030 - 3 - Case 5:07-cv-00019-DF Document 1 Filed 01/31/07 Page 4 of 5 16. Defendants' infringement of Garfinkel's exclusive rights under the '661 patent will continue to damage Garfinkel, causing irreparable harm for which there is no adequate remedy at law, unless enjoined by this Court. JURY DEMAND 17. Garfinkel demands a trial by jury on all issues triable to a jury. PRAYER FOR RELIEF Garfinkel respectfully requests this Court to enter judgment in its favor against defendants, granting the following relief: A. An adjudication that defendants have infringed and continue to infringe claims of the '661 patent; B. An award to Garfinkel of damages adequate to compensate Garfinkel for defendants' acts of infringement together with prejudgment interest; C. An award to Garfinkel of enhanced damages, up to and including three times Garfinkel's damages, pursuant to 35 U.S.C. § 284, for defendants' willful infringement; D. An award of Garfinkel's costs of suit and reasonable attorneys' fees pursuant to 35 U.S.C. § 285 due to the exceptional nature of this case, or as otherwise permitted by law; E. A grant of permanent injunction pursuant to 35 U.S.C. § 283, enjoining defendants from further acts of (1) infringement, (2) contributory infringement and (3) active inducement to infringe with respect to the claims of the ‘661 patent; and F. Any further relief that this Court deems just and proper. Dated: January 31, 2007. NYC:721524.6/1-102030 - 4 - Case 5:07-cv-00019-DF Document 1 Filed 01/31/07 Page 5 of 5 Respectfully submitted, PATTON, ROBERTS, MCWILLIAMS & CAPSHAW, LLP By: ___/s/ Sean F. Rommel_______ Sean F. Rommel Texas State Bar No. 24011612 2900 St. Michael Drive, Suite 400 Texarkana, TX 75501 Telephone: 903-334-7000 Facsimile: 903-334-7007 ATTORNEYS FOR PLAINTIFF SIMSON GARFINKEL NYC:721524.6/1-102030 - 5 - .