Case 4:19-cv-03409-JSW Document 1 Filed 06/14/19 Page 1 of 19
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`
`
`KEVIN E. CADWELL (SBN 255794)
`kcadwell@kelleydrye.com
`KELLEY DRYE & WARREN LLP
`10100 Santa Monica Blvd.
`Twenty-Third Floor
`Los Angeles, CA 90067
`Telephone: (310) 712-6100
`Facsimile: (310) 712-6199
`
`Attorney for Plaintiffs
`eXelate, Inc. and Gracenote, Inc.
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
`
`EXELATE, INC. and
`GRACENOTE, INC.
`
`v.
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`
`
`Plaintiffs,
`
`
`
`FREE STREAM MEDIA CORP.
`d/b/a SAMBA TV
`
`
`
`
`
`
`
`
`
`)
`) Case No. ________
`)
`
`)
`COMPLAINT FOR
`)
`DECLARATORY JUDGMENT OF
`)
`PATENT NONINFRINGEMENT
`)
`AND INVALIDITY
`)
`
`)
`
`)
`
`)
`
`)
`
`)
`)
`)
`Defendant
` )
`
`COMPLAINT FOR DECLARATORY JUDGMENT OF PATENT NONINFRINGEMENT AND INVALIDITY
`CASE NO. ________
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`

`

`Case 4:19-cv-03409-JSW Document 1 Filed 06/14/19 Page 2 of 19
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`Plaintiffs eXelate, Inc. ("eXelate") and Gracenote, Inc. ("Gracenote")
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`(collectively, "Plaintiffs") allege as follows for their Complaint for Declaratory
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`Judgment against Free Stream Media Corp. d/b/a Samba TV ("Samba"):
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`NATURE OF THE ACTION
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`1.
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`This is an action for declaratory judgment of noninfringement and
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`invalidity of U.S. Patent Nos. 9,519,772 ("the '772 patent"); 10,142,377 ("the '377
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`patent"); and 9,386,356 ("the '356 patent") (collectively, "the patents-in-suit")
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`arising under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, and the
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`patent laws of the United States, including Title 35 of the United States Code, §§ 1
`
`et seq.
`2.
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`Plaintiffs seek a declaration that they do not infringe the patents-in-suit
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`and that the patents-in-suit are invalid.
`3.
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`An actual and justiciable controversy exists between Plaintiffs and
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`Samba.
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`THE PARTIES
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`4.
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`eXelate is a corporation organized and existing under the laws of the
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`State of Delaware, with its principal place of business at 85 Broad Street, New
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`York, New York, 10004.
`5.
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`Gracenote is a corporation organized and existing under the laws of the
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`state of Delaware, with its principal place of business at 2000 Powell Street, Suite
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`1500, Emeryville, California, 94608.
`6.
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`On information and belief, Samba is a corporation organized and
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`existing under the laws of the State of Delaware, with a principal place of business
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`at 528 Folsom Street, San Francisco, California, 94105.
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`JURISDICTION AND VENUE
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`7.
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`This action arises under the Declaratory Judgment Act, 28 U.S.C. §§
`
`2201 and 2202, and the patent laws of the United States, 35 U.S.C. §§ 1 et seq. An
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`COMPLAINT FOR DECLARATORY JUDGMENT OF PATENT NONINFRINGEMENT AND INVALIDITY
`CASE NO. ________
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`Case 4:19-cv-03409-JSW Document 1 Filed 06/14/19 Page 3 of 19
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`actual and justiciable controversy exists between Plaintiffs and Samba that requires
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`a declaration by this Court.
`8.
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`This Court has subject matter jurisdiction over this action under 28
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`U.S.C. §§ 1331, 1338(a) and 2201(a).
`9.
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`This Court has personal jurisdiction over Samba because, among other
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`things, Samba has continuous and systematic contacts with the State of California,
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`including maintaining its headquarters at 528 Folsom Street, San Francisco,
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`California, 94105. Samba has purposefully availed itself of the privileges and
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`protections of the State of California in general, and this District in particular, by
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`engaging in business here.
`10. Samba has previously and voluntarily submitted to jurisdiction and
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`venue in this District. See, e.g., Free Stream Media Corp. v. Alphonso Inc., Case
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`No. 3:17-cv-02107-RS (N.D. Cal.).
`11. Venue in this District is proper under 28 U.S.C. §§ 1391(b) and (c).
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`Samba is subject to personal jurisdiction in this District and resides in this District.
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`INTRADISTRICT ASSIGNMENT
`12. Pursuant to Civil L.R. 3-2(c) and 3-5(b), this is an Intellectual Property
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`Rights action subject to assignment on a district-wide basis.
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`PATENTS-IN-SUIT
`13. The '772 patent, entitled "Relevancy improvement through targeting of
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`information based on data gathered from a networked device associated with a
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`security sandbox of a client device," states on its face that it issued on December 13,
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`2016. A copy of the '772 patent is attached as Exhibit A.
`14. The '377 patent, entitled "Relevancy improvement through targeting of
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`information based on data gathered from a networked device associated with a
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`security sandbox of a client device," states on its face that it issued on November 27,
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`2018. A copy of the '377 patent is attached as Exhibit B.
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`COMPLAINT FOR DECLARATORY JUDGMENT OF PATENT NONINFRINGEMENT AND INVALIDITY
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`Case 4:19-cv-03409-JSW Document 1 Filed 06/14/19 Page 4 of 19
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`15. The '356 patent, entitled "Targeting with television audience data
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`across multiple screens," states on its face that it issued on July 5, 2016. A copy of
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`the '356 patent is attached as Exhibit C.
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`FACTUAL BACKGROUND
`16. On May 21, 2019, Samba sent a letter ("Samba's Letter," attached
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`hereto as Exhibit D) to Gracenote's counsel, stating as follows:
`
`I write on behalf of Free Stream Media Corp. d/b/a
`Samba TV ("Samba") to demand that Nielsen and
`Gracenote (1) stop using Samba's intellectual property,
`and (2) stop encouraging others to use the intellectual
`property. Nielsen and Gracenote's data management
`platform (DMP) and automatic content recognition
`(ACR) client software infringe (either directly or
`indirectly) Samba's patent portfolio, including U.S.
`Patent Nos. 9,519,772; 10,142,377; and 9,386,356.
`Nielsen's Marketing Cloud DMP generates audience
`models for targeted ad campaigns using, among other
`things, data from Gracenote's ACR client software. The
`platform incorporates the claimed features, including by
`using artificial intelligence, a "real-time technology" to
`"automate[] audience model creation and optimization."
`Nielsen and Gracenote induce others to make use of this
`platform and infringe Samba's patents – for example,
`through the integration of Gracenote's ACR client
`software into millions of TVs. Nielsen's unauthorized
`use of Samba's technology – which enables Nielsen to
`offer a platform that it claims to be "smarter and faster
`at responding to changes in consumer behavior" – must
`stop.
`
`17. The Nielsen Marketing Cloud DMP ("NMC") referenced in Samba's
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`Letter is a suite of services offered by eXelate. "DMP" stands for "data
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`management platform," and eXelate provides the output of the Nielsen Marketing
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`Cloud DMP as a data-as-a-service offering to customers.
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`Case 4:19-cv-03409-JSW Document 1 Filed 06/14/19 Page 5 of 19
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`18. As shown above, Samba's Letter accuses Gracenote's automatic content
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`recognition ("ACR") client software and eXelate's NMC (collectively, "the Accused
`
`Products") of infringing the patents-in-suit.
`19. As also shown above, Samba's Letter expressly refers to the Accused
`
`Products as an "unauthorized use of Samba's technology."
`20. As further shown above, Samba's Letter "demands" that eXelate and
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`Gracenote "stop using Samba's intellectual property, and . . . stop encouraging
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`others to use the intellectual property."
`21. Samba's Letter expounds upon its infringement allegations, arguing that
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`eXelate’s NMC "generates audience models for targeted ad campaigns using, among
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`other things, data from Gracenote's ACR client software . . . [and] incorporates the
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`claimed features [of Samba's patents] including by using artificial intelligence, a
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`'real-time technology' to 'automate audience model creation and optimization.'"
`22. Gracenote's ACR system receives from televisions the IP addresses of
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`the televisions, and Gracenote then generates viewership data about programs being
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`displayed on those televisions. Gracenote licenses this viewership data to its
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`customers. Gracenote does not encourage, direct, or control its customers to take
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`any particular action regarding the viewership data.
`23.
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`eXelate receives a list of IP addresses from Gracenote and creates
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`"segments," which are classifications of the IP addresses in various categories
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`(demographic or otherwise). eXelate licenses these segments to its customers.
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`eXelate does not encourage, direct, or control its customers to take any particular
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`action regarding the segments.
`24.
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`In certain instances, Plaintiffs license both segments and viewership
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`data to their customers. Plaintiffs do not encourage, direct, or control their
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`customers to take any particular action regarding the segments and viewership data.
`25. Despite the fact that Samba's letter specifically calls out "the
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`integration of Gracenote's ACR client software into millions of TVs," Gracenote's
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`COMPLAINT FOR DECLARATORY JUDGMENT OF PATENT NONINFRINGEMENT AND INVALIDITY
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`Case 4:19-cv-03409-JSW Document 1 Filed 06/14/19 Page 6 of 19
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`ACR client software in televisions does not provide content or other data to
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`secondary devices. Nor does Gracenote search for or provide targeted content to
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`secondary devices.
`26.
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`eXelate does not provide content or other data to secondary devices.
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`Nor does eXelate search for or provide targeted content to secondary devices.
`27. Plaintiffs have expended considerable effort and resources to design,
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`develop, test, produce, and license the Accused Products.
`28. The accusations in Samba's Letter create a cloud over Plaintiffs'
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`businesses relating to the Accused Products.
`29. As a result of Samba's allegations, there is an actual, immediate and
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`justiciable controversy between Samba and Plaintiffs regarding the infringement and
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`validity of the claims of the patents-in-suit. Declaratory judgment is necessary and
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`appropriate to determine the rights and obligations of Samba and Plaintiffs.
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`COUNT I
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`(Declaratory Judgment of Noninfringement of the '772 Patent)
`30. Plaintiffs incorporate by reference all of the allegations set forth in each
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`of the preceding paragraphs of this Complaint as if fully set forth herein.
`31. Samba has asserted that it is the owner of the '772 patent.
`32. Samba has asserted that the Accused Products infringe the '772 patent.
`33. The Accused Products do not infringe any valid claim of the '772
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`patent, directly or indirectly, literally or under the doctrine of equivalents.
`34. All claims of the '772 patent require "a relevancy-matching server to
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`match primary data generated from the preliminary data with targeted data based on
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`a relevancy factor and search a storage for targeted data" or "a relevancy-matching
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`server to match primary data generated using a preliminary data with targeted data,
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`based on a relevancy factor, and search a storage for targeted data."
`35. The Accused Products do not contain the claimed relevancy-matching
`
`server, and thus, the Accused Products do not infringe any claim of the '772 patent.
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`COMPLAINT FOR DECLARATORY JUDGMENT OF PATENT NONINFRINGEMENT AND INVALIDITY
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`Case 4:19-cv-03409-JSW Document 1 Filed 06/14/19 Page 7 of 19
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`36. Moreover, the Accused Products do not search for or identify targeted
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`data, nor do they match primary data with targeted data based on a relevancy factor.
`37. All claims of the '772 patent also require "a client device capable of
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`being associated with the networked device to process an embedded object,
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`constrain an executable environment in a security sandbox, and execute a sandboxed
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`application in the executable environment" or "a client device to associate with the
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`networked device, constrain an executable environment in a security sandbox,
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`execute a sandboxed application in the executable environment capable of bypassing
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`at least one access control of the security sandbox, and process in the sandboxed
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`application an embedded object from the relevancy-matching server." The Accused
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`Products do not contain these elements, and thus, the Accused Products do not
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`infringe any claim of the '772 patent. In particular, for example, the Accused
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`Products do not use or incorporate a client device capable of being associated with a
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`networked device. Nor do the Accused Products use a security sandbox or execute
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`sandboxed applications.
`38. All claims of the '772 patent also require "a content identification
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`server to process the preliminary data from the networked device and communicate
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`the primary data from the preliminary data to any of a number of devices with an
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`access to an identification data of at least one of the networked device and an
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`automatic content identification service of the networked device" or "a content
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`identification server to process the preliminary data from at least one of the
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`networked device and the client device, and communicate the primary data from the
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`preliminary data to any of a number of devices with access to an identification data
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`of at least one of the networked device and an automatic content identification
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`service of the networked device." The Accused Products do not contain these
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`elements, and thus, the Accused Products do not infringe any claim of the '772
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`patent. In particular, for example, the Accused Products do not communicate data to
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`COMPLAINT FOR DECLARATORY JUDGMENT OF PATENT NONINFRINGEMENT AND INVALIDITY
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`Case 4:19-cv-03409-JSW Document 1 Filed 06/14/19 Page 8 of 19
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`devices with access to identification data of a networked device or of an automatic
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`content identification service of a networked device.
`39. As a result of Samba's allegations against Plaintiffs, an actual and
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`justiciable case or controversy exits between Samba and Plaintiffs as to
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`noninfringement of the claims of the '772 patent.
`40. Pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.,
`
`and to resolve the legal and factual questions raised by Samba and to afford
`
`Plaintiffs relief from the uncertainty and controversy that Samba's allegations have
`
`precipitated, Plaintiffs are entitled to a declaration that the Accused Products do not
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`infringe any claims of the '772 patent.
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`COUNT II
`
`(Declaratory Judgment of Invalidity of the '772 Patent)
`41. Plaintiffs incorporate by reference all of the allegations set forth in each
`
`of the preceding paragraphs of this Complaint as if fully set forth herein.
`42. On information and belief, Samba contends that all claims of the '772
`
`patent are valid.
`43. Samba has asserted that the Accused Products infringe the '772 patent.
`44. All claims of the '772 patent are invalid for failure to comply with at
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`least 35 U.S.C. §§ 101, 102, 103 and/or 112.
`45. The '772 patent does not claim patent-eligible subject matter under 35
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`U.S.C. § 101. Unlike claims directed to solving particular technological problems,
`
`the '772 patent does not claim any new solution, system or device. The claims of
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`the '772 patent are directed to the abstract idea of "determining what a person is
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`watching on television and, based on that information, delivering other content –
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`such as an advertisement – to a mobile device also being used by that person." See
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`Free Stream Media Corp. v. Alphonso Inc., Case No. 17-cv-02107-RS, (N.D. Cal.),
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`Document 367, Order Granting Motion for Summary Judgment, Dec. 28, 2018. The
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`COMPLAINT FOR DECLARATORY JUDGMENT OF PATENT NONINFRINGEMENT AND INVALIDITY
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`claims do not recite any inventive concept to transform the abstract idea into patent-
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`eligible subject matter.
`46.
`
`If the claims of the '772 patent are interpreted as broadly as Samba
`
`interprets them, they are invalid as anticipated or rendered obvious under 35 U.S.C.
`
`§§ 102 and/or 103 in light of the prior art.
`47.
`
`In the chain of applications upon which priority is based on the face of
`
`the '772 patent, U.S. Patent Application No. 13/904,015, filed on May 28, 2013, is
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`the earliest application that can be argued to disclose a "relevancy-matching server"
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`or any similar function. For at least the reason that all claims of the '772 patent
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`require a relevancy-matching server, May 28, 2013 is the earliest possible priority
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`date to which the claims of the '772 patent are entitled.
`48. The claims of the '772 patent are anticipated under 35 U.S.C. § 102 by
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`U.S. Patent Application Publication No. US 2010/0205628 A1 to Davis and
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`Rodriguez (including all references incorporated by reference therein) ("Davis").
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`Davis was published on August 12, 2010 and is therefore prior art to all claims of
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`the '772 patent. Claim charts demonstrating how Davis anticipates the '772 patent
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`are attached hereto as Exhibit E.
`49.
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`In the alternative, the claims of the '772 patent are rendered obvious
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`under 35 U.S.C. § 103 by the combination of Davis with any or all of: (a) the
`
`November 14, 2011 Oracle web page
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`https://docs.oracle.com/javase/tutorial/java/javaOO/objects.html; (b) Understanding
`
`the Keys to Java security – the sandbox and authentication, JavaWorld, May 1,
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`1997 (https://www.javaworld.com/article/2076945/understanding-the-keys-to-java-
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`security----the-sandbox-authentication.html); and (c) the 2002 Oracle web page
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`https://docs.oracle.com/javase/7/docs/technotes/guides/security/spec/security-
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`specTOC.fm.html and its hyperlinked web pages. The claim charts in Exhibit E
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`demonstrate how these references render the '772 patent obvious.
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`COMPLAINT FOR DECLARATORY JUDGMENT OF PATENT NONINFRINGEMENT AND INVALIDITY
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`50. As a result of Samba's allegations against Plaintiffs, an actual and
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`justiciable case or controversy exists between Plaintiffs and Samba as to the validity
`
`of the claims of the '772 patent.
`51. Pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.,
`
`and to resolve the legal and factual questions raised by Samba and to afford
`
`Plaintiffs relief from the uncertainty and controversy that Samba's allegations have
`
`precipitated, Plaintiffs are entitled to a declaration that the claims of the '772 patent
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`are invalid under one or more provisions of 35 U.S.C. §§ 101, 102, 103 and 112, or
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`other judicially created bases for invalidity. Such a declaration is necessary and
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`appropriate at this time to determine the rights and obligations of the parties.
`
`COUNT III
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`(Declaratory Judgment of Noninfringement of the '377 Patent)
`52. Plaintiffs incorporate by reference all of the allegations set forth in each
`
`of the preceding paragraphs of this Complaint as if fully set forth herein.
`53. Samba has asserted that it is the owner of the '377 patent.
`54. Samba has asserted that the Accused Products infringe the '377 patent.
`55. The Accused Products do not infringe any valid claim of the '377
`
`patent, directly or indirectly, literally or under the doctrine of equivalents.
`56. All claims of the '377 patent require "a relevancy-matching server to
`
`receive primary data generated from fingerprint data of each of the plurality of
`
`networked devices, match the primary data with targeted data based on a relevancy
`
`factor, search a storage for the targeted data, and cause rendering of the targeted data
`
`through the embedded object processed through the sandboxed application of the
`
`client device, wherein the primary data is any one of a content identification data
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`and a content identification history"; "through a relevancy-matching server,
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`receiving primary data generated from fingerprint data of each of the plurality of
`
`networked devices, matching the primary data with targeted data based on a
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`relevancy factor, searching a storage for the targeted data, and causing rendering of
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`the targeted data through the embedded object processed through the sandboxed
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`application of the client device, wherein the primary data is any one of a content
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`identification data and a content identification history"; or "through the relevancy-
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`matching server, receive primary data generated from fingerprint data of each of the
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`plurality of networked devices, match the primary data with targeted data based on a
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`relevancy factor, search a storage for the targeted data, and cause rendering of the
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`targeted data through the embedded object processed through the sandboxed
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`application of the client device, wherein the primary data is any one of a content
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`identification data and a content identification history."
`57. The Accused Products do not contain the claimed relevancy-matching
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`server, and thus, the Accused Products do not infringe any claim of the '377 patent.
`58. Moreover, the Accused Products do not search for or identify targeted
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`data, nor do they match primary data with targeted data. Nor do those products
`
`match primary data with targeted data based on a relevancy factor. Additionally, the
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`Accused Products do not render targeted data, through a sandboxed application or
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`otherwise.
`59. All the claims of the '377 patent also require "a client device capable of
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`being associated with a plurality of networked devices through a computer network
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`to process an embedded object, constrain an executable environment in a security
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`sandbox, and execute a sandboxed application in the executable environment, the
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`embedded object being processed through the sandboxed application"; "associating
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`a client device with a plurality of networked devices through a computer network;
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`processing an embedded object through the client device; constraining an executable
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`environment in a security sandbox of the client device; executing a sandboxed
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`application in the executable environment of the client device, the embedded object
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`being processed through the sandboxed application"; or "associate the client device
`
`with a plurality of networked devices through a computer network; process an
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`embedded object through the client device; constrain an executable environment in a
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`COMPLAINT FOR DECLARATORY JUDGMENT OF PATENT NONINFRINGEMENT AND INVALIDITY
`CASE NO. ________
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`Case 4:19-cv-03409-JSW Document 1 Filed 06/14/19 Page 12 of 19
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`security sandbox of the client device; execute a sandboxed application in the
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`executable environment of the client device, the embedded object being processed
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`through the sandboxed application." The Accused Products do not contain these
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`elements, and thus, the Accused Products do not infringe any claim of the '377
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`patent. In particular, for example, the Accused Products do not employ a client
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`device that is associated with, or that is capable of being associated with, a plurality
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`of networked devices. Nor do the Accused Products employ sandboxed applications
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`of client devices.
`60. As a result of Samba's allegations against Plaintiffs, an actual and
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`justiciable case or controversy exits between Samba and Plaintiffs as to
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`noninfringement of the claims of the '377 patent.
`61. Pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.,
`
`and to resolve the legal and factual questions raised by Samba and to afford
`
`Plaintiffs relief from the uncertainty and controversy that Samba's allegations have
`
`precipitated, Plaintiffs are entitled to a declaration that the Accused Products do not
`
`infringe any claims of the '377 patent.
`
`COUNT IV
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`(Declaratory Judgment of Invalidity of the '377 Patent)
`62. Plaintiffs incorporate by reference all of the allegations set forth in each
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`of the preceding paragraphs of this Complaint as if fully set forth herein.
`63. On information and belief, Samba contends that all claims of the '377
`
`patent are valid.
`64. Samba has asserted that the Accused Products infringe the '377 patent.
`65. All claims of the '377 patent are invalid for failure to comply with at
`
`least 35 U.S.C. §§ 101, 102, 103 and/or 112.
`66. The '377 patent does not claim patent-eligible subject matter under 35
`
`U.S.C. § 101. Unlike claims directed to solving particular technological problems,
`
`the '377 patent does not claim any new solution, system or device. The claims of
`
`COMPLAINT FOR DECLARATORY JUDGMENT OF PATENT NONINFRINGEMENT AND INVALIDITY
`CASE NO. ________
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`Case 4:19-cv-03409-JSW Document 1 Filed 06/14/19 Page 13 of 19
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`the '377 patent are directed to the abstract idea of "determining what a person is
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`watching on television and, based on that information, delivering other content –
`
`such as an advertisement – to a mobile device also being used by that person." See
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`Free Stream Media Corp. v. Alphonso Inc., Case No. 17-cv-02107-RS, (N.D. Cal.),
`
`Document 367, Order Granting Motion for Summary Judgment, Dec. 28, 2018. The
`
`claims do not recite any inventive concept to transform the abstract idea into patent-
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`eligible subject matter.
`67.
`
`If the claims of the '377 patent are interpreted as broadly as Samba
`
`interprets them, they are invalid as anticipated or rendered obvious under 35 U.S.C.
`
`§§ 102 and/or 103 in light of the prior art.
`68.
`
`In the chain of applications upon which priority is based on the face of
`
`the '377 patent, U.S. Patent Application No. 13/904,015, filed on May 28, 2013, is
`
`the earliest application that can be argued to disclose a "relevancy-matching server"
`
`or any similar function. For at least the reason that all claims of the '377 patent
`
`require a relevancy-matching server, May 28, 2013 is the earliest possible priority
`
`date to which the claims of the '377 patent are entitled.
`69. The claims of the '377 patent are anticipated under 35 U.S.C. § 102 by
`
`Davis. Davis was published on August 12, 2010 and is therefore prior art to all
`
`claims of the '377 patent. Claim charts demonstrating how Davis anticipates the
`
`'377 patent are attached hereto as Exhibit E.
`70.
`
`In the alternative, the claims of the '377 patent are rendered obvious
`
`under 35 U.S.C. § 103 by the combination of Davis with any or all of: (a) the
`
`November 14, 2011 Oracle web page
`
`https://docs.oracle.com/javase/tutorial/java/javaOO/objects.html; (b) Understanding
`
`the Keys to Java security – the sandbox and authentication, JavaWorld, May 1,
`
`1997 (https://www.javaworld.com/article/2076945/understanding-the-keys-to-java-
`
`security----the-sandbox-authentication.html); and (c) the 2002 Oracle web page
`
`https://docs.oracle.com/javase/7/docs/technotes/guides/security/spec/security-
`
`COMPLAINT FOR DECLARATORY JUDGMENT OF PATENT NONINFRINGEMENT AND INVALIDITY
`CASE NO. ________
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`Case 4:19-cv-03409-JSW Document 1 Filed 06/14/19 Page 14 of 19
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`specTOC.fm.html and its hyperlinked web pages. The claim charts in Exhibit E
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`demonstrate how these references render the '377 patent obvious.
`71. As a result of Samba's allegations against Plaintiffs, an actual and
`
`justiciable case or controversy exists between Samba and Plaintiffs as to the validity
`
`of the claims of the '377 patent.
`72. Pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.,
`
`and to resolve the legal and factual questions raised by Samba and to afford
`
`Plaintiffs relief from the uncertainty and controversy that Samba's allegations have
`
`precipitated, Plaintiffs are entitled to a declaration that the claims of the '377 patent
`
`are invalid under one or more provisions of 35 U.S.C. §§ 101, 102, 103 and 112, or
`
`other judicially created bases for invalidity. Such a declaration is necessary and
`
`appropriate at this time to determine the rights and obligations of the parties.
`
`COUNT V
`
`(Declaratory Judgment of Noninfringement of the '356 Patent)
`73. Plaintiffs incorporate by reference all of the allegations set forth in each
`
`of the preceding paragraphs of this Complaint as if fully set forth herein.
`74. Samba has asserted that it is the owner of the '356 patent.
`75. Samba has asserted that the Accused Products infringe the '356 patent.
`76. The Accused Products do not infringe any valid claim of the '356
`
`patent, directly or indirectly, literally or under the doctrine of equivalents.
`77. All claims of the '356 patent require "a relevancy-matching server to
`
`match primary data generated from the fingerprint data with targeted data, based on
`
`a relevancy factor, and search a storage for the targeted data; wherein the primary
`
`data is any one of a content identification data and a content identification history";
`
`"[a] relevancy matching server communicatively coupled with a television and a
`
`mobile device through a network, comprising . . . instructions stored in the memory
`
`and executed using the processor configured to match primary data generated using
`
`a fingerprint data with targeted data, based on a relevancy factor comprising at least
`
`COMPLAINT FOR DECLARATORY JUDGMENT OF PATENT NONINFRINGEMENT AND INVALIDITY
`CASE NO. ________
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`one of a category of the primary data, a behavioral history of a user, a category of a
`
`sandboxed application, and another information associated with the user, search a
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`storage for the targeted data, wherein the primary data is any one of a content
`
`identification data and a content identification history"; or "[a] method of a
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`relevancy-matching server comprising a set of instructions when executed through a
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`machine using a processor and a memory to comprise the operations of matching
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`primary data generated from a fingerprint data with targeted data, based on a
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`relevancy factor and to search a storage for the targeted data using the processor
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`communicatively coupled with the memory; wherein the primary data is any one of
`
`a content identification data and a content identification history." The Accused
`
`Products do not contain these elements, and thus, the Accused Products do not
`
`infringe any claim of the '356 patent. In particular, for example, the Accused
`
`Products do not contain a relevancy-matching server. Moreover, the Accused
`
`Products do not match primary data with targeted data or search for or identify
`
`targeted data. Nor do the Accused Products match primary data with targeted data
`
`based on a relevancy factor.
`78. Claims 1-9 and 18-21 of the '356 patent require "a content
`
`identification server to process the fingerprint data from the television, and
`
`communicate the primary data from the fingerprint data to any of a number of
`
`devices with an access to an identification data of at least one of the television and
`
`an automatic content identification service of the television" or "a content
`
`identification server to process the fingerprint data from at least one of the television
`
`and the mobile device, and communicate the primary data from the fingerprint data
`
`to any of a number of devices with an access to an identification data of at least one
`
`of the television and an automatic content identification service of the television."
`
`The Accused Products do not contain these elements, and thus, the Accused
`
`Product