throbber
IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`KOM SOFTWARE INC.,
`
`Plaintiff,
`
`
`v.
`
`NETAPP, INC., APACHE CORPORATION,
`and ON SEMICONDUCTOR, LLC,
`
`
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`
`
`
`CIVIL ACTION NO. ______
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`ORIGINAL COMPLAINT
`
`Plaintiff KOM Software Inc. (“Plaintiff” or “KOM”), by and through its attorneys, for its
`
`Original Complaint against NetApp, Inc., (“NetApp”), Apache Corporation (“Apache”), and ON
`
`Semiconductor, LLC (“ON Semiconductor”) (together, “Defendants”) and demanding trial by
`
`jury, hereby alleges as follows:
`
`I. NATURE OF THE ACTION
`
`
`
`This is an action for patent infringement arising under the patent laws of the
`
`United States, 35 U.S.C. §§ 271, et seq., to enjoin and obtain damages resulting from
`
`Defendants’ unauthorized use, sale, and offer to sell in the United States of products, methods,
`
`processes, services and/or systems that infringe KOM’s United States patents, as described
`
`herein.
`
`
`
`NetApp manufactures, provides, uses, sells, offers for sale, imports, and/or
`
`distributes infringing products and services; and encourages others to use its products and
`
`services in an infringing manner, including Apache, ON Semiconductor, and other of its
`
`customers, as set forth herein.
`
`

`

`
`
`KOM seeks past and future damages and prejudgment and post-judgment interest
`
`for NetApp’s past infringement of the Patents-in-Suit, as defined below.
`
`II. PARTIES
`
`
`
`Plaintiff KOM Software Inc. is a corporation organized and existing under the
`
`laws of Canada. Its principal place of business is 150 Katimavik Road, Suite 302, Ottawa,
`
`Ontario K2L 2N2 Canada.
`
`
`
`On information and belief, Defendant NetApp is a corporation organized under
`
`the laws of Delaware. NetApp’s registered agent for service of process in Delaware is
`
`Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware 19808.
`
`
`
`On information and belief, Defendant Apache is a corporation organized under
`
`the laws of Delaware. Apache’s registered agent for service of process in Delaware is The
`
`Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington,
`
`Delaware 19801.
`
`
`
`On information and belief, Defendant ON Semiconductor is a corporation
`
`organized under the laws of Delaware. ON Semiconductor’s registered agent for service of
`
`process in Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange
`
`Street, Wilmington, Delaware 19801.
`
`III. JURISDICTION AND VENUE
`
`
`
`This is an action for patent infringement which arises under the patent laws of the
`
`United States, in particular, 35 U.S.C. §§ 271, 281, 283, 284 and 285.
`
`
`
`This Court has exclusive jurisdiction over the subject matter of this action under
`
`28 U.S.C. §§ 1331 and 1338(a).
`
`
`
`On information and belief, venue is proper in this district pursuant to 28 U.S.C.
`
`§§ 1391(b), 1391(c), and 1400(b) because Defendants have incorporated in this State, have
`
`
`-2-
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`

`

`transacted business in this Judicial District, and have committed and/or induced acts of patent
`
`infringement in this Judicial District.
`
`
`
`On information and belief, Defendants are subject to this Court’s specific and
`
`general personal jurisdiction pursuant to due process and/or the Delaware Long Arm Statute, due
`
`at least to its substantial business in this forum, including: (i) at least a portion of the
`
`infringements alleged herein; and (ii) 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 Delaware and in this Judicial District.
`
`FACTUAL ALLEGATIONS
`
`BACKGROUND
`
`
`
`Founded in 1969, KOM Software provides secure data archiving and storage
`
`management software and solutions globally. KOM Software is a world-leading developer of
`
`secure data software to safeguard, secure, protect and preserve information. For over three
`
`decades, KOM has set industry standards for securing data that other companies aspire to
`
`emulate and follow. KOM develops next-generation secure data software solutions that work on
`
`any infrastructure to deliver cloud-like economics and agility, with the security and reliability of
`
`on-premise solutions.
`
`
`
`KOM delivers affordable, easy-to-use and highly-scalable long-term secure data
`
`storage software solutions that safeguard and protect information to meet individual customer
`
`needs across the most highly regulated industries and that support critical third-party applications
`
`such as E-mail archiving, Enterprise Content Management (ECM) and Document Management
`
`Systems (DMS).
`
`
`
`KOM also offers KOMpliance, an enterprise-class industry leading software
`
`solution enforcing data security, privacy and protection against security
`
`threats and
`
`
`-3-
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`

`

`vulnerabilities - like ransomware, and accidental or malicious acts. KOMpliance sets the mark
`
`for cost-effective, easy-to-implement and maintain, long-term secure data integrated solutions for
`
`secure data storage. KOMpliance represents a next generation of software technologies following
`
`historical KOM product offerings including OptiFile, a VMS based storage management
`
`software enabling direct-write to Write-Once-Read-Many “WORM” optical disk for data archive
`
`and compliance; OptiServer, a UNIX based storage management software for archiving, access,
`
`and protection of mission critical data on optical media and jukeboxes; and KOMworx, a
`
`Windows-based storage management software solution that provides compliance, archiving,
`
`fixed content hard disk archiving, dynamic capacity management, and information lifecycle
`
`management.
`
`
`
`KOM patented software-based
`
`immutable WORM and encryption
`
`for
`
`unconditionally enforcing retention, privacy and secure erasure to meet strict compliance
`
`regulations, mitigate risks, and eliminate errors avoiding punitive fines and penalties without
`
`having to deploy proprietary hardware. KOM’s unique approach to data security allows
`
`organizations to take on advances in storage and server technology without having to resort to
`
`proprietary vendor locked hardware solutions to protect their data.
`
`PATENTS-IN-SUIT
`
`
`
`KOM is the owner of all right, title and interest in and to U.S. Patent No.
`
`6,438,642 (the “’642 Patent”), entitled “File-based virtual storage file system, method and
`
`computer program product for automated file management on multiple file system storage
`
`devices,” issued on August 20, 2002. A copy of the ’642 Patent is attached as Exhibit A.
`
`
`
`KOM is the owner of all right, title and interest in and to U.S. Patent No.
`
`7,392,234 (the “’234 Patent”), entitled “Method and system for electronic file lifecycle
`
`management,” issued on June 24, 2008. A copy of the `234 Patent is attached as Exhibit B.
`
`
`-4-
`
`

`

`
`
`KOM is the owner of all right, title and interest in and to U.S. Patent No.
`
`6,654,864 (the “’864 Patent”), entitled “Method and system for providing restricted access to a
`
`storage medium,” issued on November 25, 2003. A copy of the `864 Patent is attached as
`
`Exhibit C.
`
`
`
`KOM is the owner of all right, title and interest in and to U.S. Patent No.
`
`7,076,624 (the “’624 Patent”), entitled “Method and system for providing restricted access to a
`
`storage medium,” issued on July 11, 2006. A copy of the `624 Patent is attached as Exhibit D.
`
`
`
`KOM is the owner of all right, title and interest in and to U.S. Patent No.
`
`7,536,524 (the “’524 Patent”), entitled “Method and system for providing restricted access to a
`
`storage medium,” issued on May 19, 2009. A copy of the `524 Patent is attached as Exhibit E.
`
`
`
`KOM is the owner of all right, title and interest in and to U.S. Patent No.
`
`8,234,477 (the “’477 Patent”), entitled “Method and system for providing restricted access to a
`
`storage medium,” issued on July 31, 2012. A copy of the `477 Patent is attached as Exhibit F.
`
`
`
`KOM is the owner of all right, title and interest in and to U.S. Patent No.
`
`9,361,243 (the “’243 Patent”), entitled “Method and system for providing restricted access to a
`
`storage medium,” issued on June 7, 2016. A copy of the `243 Patent is attached as Exhibit G.
`
`
`
`The ’642 Patent and ’234 Patent derive from a common specification, and are
`
`referred to herein as “Family 1.”
`
`
`
`The ’864 Patent, ’624 Patent, ’524 Patent, ’477 Patent and ’243 Patent derive
`
`from a common specification, and are referred to herein as “Family 2.”
`
`
`
`Together, the foregoing patents are referred to herein as the “Patents-in-Suit.”
`
`KOM is the assignee of the Patents-in-Suit, and has all substantial rights to sue for infringement
`
`and collect past and future damages for the infringement thereof.
`
`
`-5-
`
`

`

`DEFENDANTS’ ACTS
`
`
`
`NetApp provides software and services directed to detection, analysis and
`
`monitoring of data flow in a data network environment.
`
`
`
`For example, NetApp provides Data ONTAP, including the ONTAP 9 Data
`
`Management Software. ONTAP includes the OnCommand management platform, which helps
`
`automate storage processes.
`
`
`
`Using ONTAP, storage processes can be integrated into customers’ data centers
`
`for end-to-end service delivery for private and hybrid cloud services. NetApp ONTAP provides
`
`a software-defined storage infrastructure using flexible storage configurations.
`
`
`
`NetApp also provides NetApp Management Console. The NetApp Management
`
`Console data protection capability provides a policy-based management tool to help unify and
`
`automate backup and mirroring operations.
`
`
`
`The NetApp Management Console provisioning capability helps simplify and
`
`automate the tasks of provisioning and managing storage. It provides policy-based provisioning
`
`and conformance of storage in datasets. This capability also enables adding volumes or qtrees to
`
`a dataset at any time, provides manual controls for space and capacity management of existing
`
`storage and newly provisioned storage, and enables migration of datasets and vFiler units to a
`
`new storage destination.
`
`
`
`For example, ONTAP Select converts a server’s internal disk drives, SSD or
`
`HDD, as well as HCI and external array storage into an agile, flexible storage platform with
`
`many of the same benefits that dedicated storage systems that are based on NetApp ONTAP
`
`offer.
`
`
`
`ONTAP includes SnapLock. SnapLock is used for the storage of read-only
`
`WORM data. Marking an active writable file as read-only on a SnapLock volume commits the
`
`
`-6-
`
`

`

`data to WORM. When a file is committed to WORM, it cannot be altered or deleted by
`
`applications, users, or administrators until the file retention date is reached.
`
`
`
`The data that is committed to the WORM state on a SnapLock volume cannot be
`
`changed or deleted before its retention date. Directories do not behave any differently than they
`
`would on regular volumes, with the exception that they cannot be renamed or moved once
`
`created.
`
`
`
`NetApp also provides StorageGRID Webscale, which stores and manages
`
`unstructured data at scale for secure, durable object storage.
`
`
`
`In StorageGRID, information lifecycle management (ILM) settings determine
`
`how an object’s data is managed and protected from loss over time. These settings are applied
`
`through an active ILM policy, which is made up of ILM rules.
`
`
`
`Every object ingested into the StorageGRID Webscale system is evaluated against
`
`the system’s active ILM policy and then its object data is copied and distributed based on the
`
`active ILM policy’s ILM rules. An object’s metadata is managed by the DDS service and not
`
`through ILM rules.
`
`
`
`NetApp instructs its customers to infringe the Patents-in-Suit, including through
`
`its provision of product documentation and support at https://library.netapp.com/ecmdocs.
`
`
`
`Apache practices the methods and uses the systems claimed in the Patents-in-Suit,
`
`including, without limitation, in connection with its use and deployment of the Clustered Data
`
`ONTAP 8.3. Apache’s use of Clustered Data ONTAP 8.3 is described in a case study that can be
`
`found at https://www.netapp.com/us/media/cs-apache-aff_tcm10-149606.pdf.
`
`
`
`Through its use of NetApp’s Clustered Data ONTAP 8.3, Apache has increased
`
`its ability to manage seismic data modeling, decreased its storage latency to micro seconds, and
`
`
`-7-
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`

`

`is able to access its 3D models in near-real-time. Apache is capable of handling more iterations
`
`of data and has experienced boosted productivity by hours each day. Due to its use of clustered
`
`Data ONTAP, Apache has an improved data infrastructure, has constant access to its data, and is
`
`more capable of meeting its challenges in the oil and gas industry.
`
`
`
`ON Semiconductor also practices the methods and uses the systems claimed in the
`
`Patents-in-Suit, including without limitation in connection with its use and deployment of
`
`ONTAP Data Management Software. ON Semiconductor’s use of ONTAP Data Management
`
`Software
`
`is
`
`described
`
`in
`
`a
`
`case
`
`study
`
`that
`
`can
`
`be
`
`found
`
`at
`
`https://www.netapp.com/us/company/customer-stories/on-semiconductor.aspx.
`
`
`
`Through its use of NetApp’s ONTAP Data Management Software, ON
`
`Semiconductor has increased its data availability and disaster recovery for its global
`
`manufacturing operations. ON Semiconductor experienced 26% improvement in recovery time
`
`objectives and 50% improvement in recovery point objectives. Additionally, ON Semiconductor
`
`implemented a standardizing of its infrastructure across 125 global sites and the ONTAP
`
`Software enabled non-disruptive operations during hardware and software updates and enables
`
`ON Semiconductor to scale out its storage as the company adds new sites. As a result, ON
`
`Semiconductor has reduced its costs to operate by 30% and reduced its energy consumption by
`
`40%, leading to an increase in cost savings with an increase in productivity.
`
`
`
`In addition, NetApp provides installation and support services, including NetApp
`
`Services as described on its website, https://www.netapp.com/us/services/index.aspx.
`
`
`
`
`
`
`
`On information of belief, Defendant NetApp also implements contractual
`
`protections in the form of license and use restrictions with its customers to preclude the
`
`unauthorized reproduction, distribution and modification of its software and systems. Moreover,
`
`
`-8-
`
`

`

`on information and belief, Defendant NetApp implements technical precautions to attempt to
`
`prevent customers from circumventing the intended operation of NetApp’s products.
`
`IV. COUNTS OF PATENT INFRINGEMENT
`
`COUNT ONE
`INFRINGEMENT OF U.S. PATENT NO. 6,438,642
`
`
`
`KOM incorporates by reference its allegations in Paragraphs 1-43 as if fully
`
`restated in this paragraph.
`
`
`
`KOM is the assignee and owner of all right, title and interest to the ’642 Patent.
`
`KOM has the legal right to enforce the patent, sue for infringement, and seek equitable relief and
`
`damages.
`
`
`
`On information and belief, Defendants NetApp, Apache, and ON Semiconductor,
`
`without authorization or license from KOM, have been and are presently directly infringing at
`
`least claim 12 of the ’642 Patent, as infringement is defined by 35 U.S.C. § 271(a), including
`
`through making, using (including for testing purposes), selling and offering for sale methods and
`
`articles infringing one or more claims of the ’642 Patent. Defendants NetApp, Apache, and ON
`
`Semiconductor are thus liable for direct infringement of the ’642 Patent pursuant to 35 U.S.C. §
`
`271(a). Exemplary infringing instrumentalities include ONTAP 9 Data Management Software
`
`and all associated interfaces, hardware, software, and digital content.
`
`
`
`On information and belief, at least since being served with the Original
`
`Complaint, Defendant NetApp, without authorization or license from KOM, has been and is
`
`presently indirectly infringing at least claim 1 of the ’642 Patent, including actively inducing
`
`infringement of the ’642 Patent under 35 U.S.C. § 271(b). Such inducements include without
`
`limitation, with specific intent to encourage the infringement, knowingly inducing customers to
`
`use infringing articles and methods that NetApp knows or should know infringe one or more
`
`
`-9-
`
`

`

`claims of the ’642 Patent. NetApp instructs its customers, including Apache and ON
`
`Semiconductor, to make and use the patented inventions of the ’642 Patent by operating
`
`NetApp’s products in accordance with NetApp’s specifications. NetApp specifically intends its
`
`customers, including Apache and ON Semiconductor to infringe by implementing ONTAP 9
`
`Data Management Software software-defined storage infrastructure to implement policy
`
`management.
`
`
`
`As a result of NetApp’s, Apache’s, and ON Semiconductor’s infringement of the
`
`’642 Patent, KOM has suffered monetary damages, and is entitled to an award of damages
`
`adequate to compensate it for such infringement under 35 U.S.C. § 284, including lost profits but
`
`in no event less than a reasonable royalty.
`
`COUNT TWO
`INFRINGEMENT OF U.S. PATENT NO. 7,392,234
`
`KOM incorporates by reference its allegations in Paragraphs 1-48 as if fully
`
`
`
`restated in this paragraph.
`
`
`
`KOM is the assignee and owner of all right, title and interest to the ’234 Patent.
`
`KOM has the legal right to enforce the patent, sue for infringement, and seek equitable relief and
`
`damages.
`
`
`
`On information and belief, Defendants NetApp, Apache, and ON Semiconductor,
`
`without authorization or license from KOM, has been and is presently directly infringing at least
`
`claim 1 of the ’234 Patent, as infringement is defined by 35 U.S.C. § 271(a), including through
`
`making, using (including for testing purposes), selling and offering for sale methods and articles
`
`infringing one or more claims of the ’234 Patent. Defendants NetApp, Apache, and ON
`
`Semiconductor are thus liable for direct infringement of the ’234 Patent pursuant to 35 U.S.C. §
`
`
`-10-
`
`

`

`271(a). Exemplary infringing instrumentalities include ONTAP 9 Data Management Software
`
`and all associated interfaces, hardware, software, and digital content.
`
`
`
`On information and belief, at least since being served with the Original
`
`Complaint, Defendant NetApp, without authorization or license from KOM, has been and is
`
`presently indirectly infringing at least claim 1 of the ’234 Patent, including actively inducing
`
`infringement of the ’234 Patent under 35 U.S.C. § 271(b). Such inducements include without
`
`limitation, with specific intent to encourage the infringement, knowingly inducing customers to
`
`use infringing articles and methods that NetApp knows or should know infringe one or more
`
`claims of the ’234 Patent. NetApp instructs its customers, including Apache and ON
`
`Semiconductor, to make and use the patented inventions of the ’234 Patent by operating
`
`NetApp’s products in accordance with NetApp’s specifications. NetApp instructs its customers
`
`to make and use the patented inventions of the ’234 Patent by operating NetApp’s products in
`
`accordance with NetApp’s specifications. NetApp specifically intends its customers, including
`
`Apache and ON Semiconductor, to infringe by implementing ONTAP 9 Data Management
`
`Software software-defined storage infrastructure to implement policy management.
`
`
`
`As a result of NetApp’s, Apache’s, and ON Semiconductor’s infringement of the
`
`’234 Patent, KOM has suffered monetary damages, and is entitled to an award of damages
`
`adequate to compensate it for such infringement under 35 U.S.C. § 284, including lost profits but
`
`in no event less than a reasonable royalty.
`
`COUNT THREE
`INFRINGEMENT OF U.S. PATENT NO. 6,654,864
`
`KOM incorporates by reference its allegations in Paragraphs 1-53 as if fully
`
`
`
`restated in this paragraph.
`
`
`-11-
`
`

`

`
`
`KOM is the assignee and owner of all right, title and interest to the ’864 Patent.
`
`KOM has the legal right to enforce the patent, sue for infringement, and seek equitable relief and
`
`damages.
`
`
`
`On information and belief, Defendants, NetApp, Apache, and ON Semiconductor,
`
`without authorization or license from KOM, have been and are presently directly infringing at
`
`least claim 1 of the ’864 Patent, as infringement is defined by 35 U.S.C. § 271(a), including
`
`through making, using (including for testing purposes), selling and offering for sale methods and
`
`articles infringing one or more claims of the ’864 Patent. Defendants are thus liable for direct
`
`infringement of the ’864 Patent pursuant to 35 U.S.C. § 271(a). Exemplary infringing products
`
`include ONTAP and SnapLock.
`
`
`
`On information and belief, at least since the receipt of written notice and the filing
`
`of the Original Complaint, Defendant NetApp, without authorization or license from KOM, has
`
`been and is presently indirectly infringing at least claim 1 of the ’864 Patent, including actively
`
`inducing infringement of the ’864 Patent under 35 U.S.C. § 271(b). Such inducements include
`
`without limitation, with specific intent to encourage the infringement, knowingly inducing
`
`customers to use infringing articles and methods that NetApp knows or should know infringe one
`
`or more claims of the ’864 Patent. NetApp instructs its customers, including Apache and ON
`
`Semiconductor, to make and use the patented inventions of the ’864 Patent by operating
`
`NetApp’s products in accordance with NetApp’s specifications. NetApp specifically intends its
`
`customers, including Apache and ON Semiconductor, to infringe by implementing ONTAP with
`
`SnapLock for the storage of read-only WORM data. Marking an active writable file as read-only
`
`on a SnapLock volume commits the data to WORM. When a file is committed to WORM, it
`
`
`-12-
`
`

`

`cannot be altered or deleted by applications, users, or administrators until the file retention date
`
`is reached.
`
`
`
`As a result of NetApp’s infringement of the ’864 Patent, KOM has suffered
`
`monetary damages, and is entitled to an award of damages adequate to compensate it for such
`
`infringement under 35 U.S.C. § 284, including lost profits but in no event less than a reasonable
`
`royalty.
`
`COUNT FOUR
`INFRINGEMENT OF U.S. PATENT NO. 7,076,624
`
`KOM incorporates by reference its allegations in Paragraphs 1-58 as if fully
`
`
`
`restated in this paragraph.
`
`
`
`KOM is the assignee and owner of all right, title and interest to the ’624 Patent.
`
`KOM has the legal right to enforce the patent, sue for infringement, and seek equitable relief and
`
`damages.
`
`
`
`On information and belief, Defendants NetApp, Apache, and ON Semiconductor,
`
`without authorization or license from KOM, have been and are presently directly infringing at
`
`least claim 12 of the ’624 Patent, as infringement is defined by 35 U.S.C. § 271(a), including
`
`through making, using (including for testing purposes), selling and offering for sale methods and
`
`articles infringing one or more claims of the ’624 Patent. Defendants are thus liable for direct
`
`infringement of the ’624 Patent pursuant to 35 U.S.C. § 271(a). Exemplary infringing products
`
`include ONTAP and SnapLock.
`
`
`
`On information and belief, at least since the receipt of written notice and the filing
`
`of the Original Complaint, Defendant NetApp, without authorization or license from KOM, has
`
`been and is presently indirectly infringing at least claim 1 of the ’624 Patent, including actively
`
`inducing infringement of the ’624 Patent under 35 U.S.C. § 271(b). Such inducements include
`
`
`-13-
`
`

`

`without limitation, with specific intent to encourage the infringement, knowingly inducing
`
`customers to use infringing articles and methods that NetApp knows or should know infringe one
`
`or more claims of the ’624 Patent. NetApp instructs its customers, including Apache and ON
`
`Semiconductor, to make and use the patented inventions of the ’624 Patent by operating
`
`NetApp’s products in accordance with NetApp’s specifications. NetApp specifically intends its
`
`customers, including Apache and ON Semiconductor, to infringe by implementing ONTAP with
`
`SnapLock for the storage of read-only WORM data. Marking an active writable file as read-only
`
`on a SnapLock volume commits the data to WORM. When a file is committed to WORM, it
`
`cannot be altered or deleted by applications, users, or administrators until the file retention date
`
`is reached.
`
`
`
`As a result of NetApp’s, Apache’s, and ON Semiconductor’s infringement of the
`
`’624 Patent, KOM has suffered monetary damages, and is entitled to an award of damages
`
`adequate to compensate it for such infringement under 35 U.S.C. § 284, including lost profits but
`
`in no event less than a reasonable royalty.
`
`COUNT FIVE
`INFRINGEMENT OF U.S. PATENT NO. 7,536,524
`
`KOM incorporates by reference its allegations in Paragraphs 1-63 as if fully
`
`
`
`restated in this paragraph.
`
`
`
`KOM is the assignee and owner of all right, title and interest to the ’524 Patent.
`
`KOM has the legal right to enforce the patent, sue for infringement, and seek equitable relief and
`
`damages.
`
`
`
`On information and belief, Defendants NetApp, Apache, and ON Semiconductor,
`
`without authorization or license from KOM, have been and are presently directly infringing at
`
`least claim 29 of the ’524 Patent, as infringement is defined by 35 U.S.C. § 271(a), including
`
`
`-14-
`
`

`

`through making, using (including for testing purposes), selling and offering for sale methods and
`
`articles infringing one or more claims of the ’524 Patent. Defendants are thus liable for direct
`
`infringement of the ’524 Patent pursuant to 35 U.S.C. § 271(a). Exemplary infringing products
`
`include ONTAP and SnapLock.
`
`
`
`On information and belief, at least the filing of the Original Complaint, Defendant
`
`NetApp, without authorization or license from KOM, has been and is presently indirectly
`
`infringing at least claim 1 of the ’524 Patent, including actively inducing infringement of the
`
`’524 Patent under 35 U.S.C. § 271(b). Such inducements include without limitation, with
`
`specific intent to encourage the infringement, knowingly inducing customers to use infringing
`
`articles and methods that NetApp knows or should know infringe one or more claims of the ’524
`
`Patent. NetApp instructs its customers, including Apache and ON Semiconductor, to make and
`
`use the patented inventions of the ’524 Patent by operating NetApp’s products in accordance
`
`with NetApp’s specifications. NetApp specifically intends its customers, including Apache and
`
`ON Semiconductor, to infringe by implementing ONTAP with SnapLock for the storage of read-
`
`only WORM data. Marking an active writable file as read-only on a SnapLock volume commits
`
`the data to WORM. When a file is committed to WORM, it cannot be altered or deleted by
`
`applications, users, or administrators until the file retention date is reached.
`
`
`
`As a result of NetApp’s, Apache’s, and ON Semiconductor’s infringement of the
`
`’524 Patent, KOM has suffered monetary damages, and is entitled to an award of damages
`
`adequate to compensate it for such infringement under 35 U.S.C. § 284, including lost profits but
`
`in no event less than a reasonable royalty.
`
`
`-15-
`
`

`

`COUNT SIX
`INFRINGEMENT OF U.S. PATENT NO. 8,234,477
`
`KOM incorporates by reference its allegations in Paragraphs 1-68 as if fully
`
`
`
`restated in this paragraph.
`
`
`
`KOM is the assignee and owner of all right, title and interest to the ’477 Patent.
`
`KOM has the legal right to enforce the patent, sue for infringement, and seek equitable relief and
`
`damages.
`
`
`
`On information and belief, Defendants NetApp, Apache, and ON Semiconductor,
`
`without authorization or license from KOM, has been and is presently directly infringing at least
`
`claim 1 of the ’477 Patent, as infringement is defined by 35 U.S.C. § 271(a), including through
`
`making, using (including for testing purposes), selling and offering for sale methods and articles
`
`infringing one or more claims of the ’477 Patent. Defendants are thus liable for direct
`
`infringement of the ’477 Patent pursuant to 35 U.S.C. § 271(a). Exemplary infringing products
`
`include ONTAP and SnapLock.
`
`
`
`On information and belief, at least since the filing of the Original Complaint,
`
`Defendant NetApp, without authorization or license from KOM, has been and is presently
`
`indirectly infringing at least claim 1 of the ’477 Patent, including actively inducing infringement
`
`of the ’477 Patent under 35 U.S.C. § 271(b). Such inducements include without limitation, with
`
`specific intent to encourage the infringement, knowingly inducing customers to use infringing
`
`articles and methods that NetApp knows or should know infringe one or more claims of the ’477
`
`Patent. NetApp instructs its customers, including Apache and ON Semiconductor, to make and
`
`use the patented inventions of the ’477 Patent by operating NetApp’s products in accordance
`
`with NetApp’s specifications. NetApp specifically intends its customers, including Apache and
`
`ON Semiconductor, to infringe by implementing ONTAP with SnapLock for the storage of read-
`
`
`-16-
`
`

`

`only WORM data. Marking an active writable file as read-only on a SnapLock volume commits
`
`the data to WORM. When a file is committed to WORM, it cannot be altered or deleted by
`
`applications, users, or administrators until the file retention date is reached.
`
`
`
`As a result of NetApp’s, Apache’s, and ON Semiconductor’s infringement of the
`
`’477 Patent, KOM has suffered monetary damages, and is entitled to an award of damages
`
`adequate to compensate it for such infringement under 35 U.S.C. § 284, including lost profits but
`
`in no event less than a reasonable royalty.
`
`COUNT SEVEN
`INFRINGEMENT OF U.S. PATENT NO. 9,361,243
`
`KOM incorporates by reference its allegations in Paragraphs 1-73 as if fully
`
`
`
`restated in this paragraph.
`
`
`
`KOM is the assignee and owner of all right, title and interest to the ’243 Patent.
`
`KOM has the legal right to enforce the patent, sue for infringement, and seek equitable relief and
`
`damages.
`
`
`
`On information and belief, Defendants NetApp, Apache, and ON Semiconductor,
`
`without authorization or license from KOM, has been and is presently directly infringing at least
`
`claim 1 of the ’243 Patent, as infringement is defined by 35 U.S.C. § 271(a), including through
`
`making, using (including for testing purposes), selling and offering for sale methods and articles
`
`infringing one or more claims of the ’243 Patent. Defendant NetApp is thus liable for direct
`
`infringement of the ’243 Patent pursuant to 35 U.S.C. § 271(a). Exemplary infringing products
`
`include ONTAP and SnapLock.
`
`
`
`On information and belief, at least since the filing of the Original Complaint,
`
`Defendant NetApp, without authorization or license from KOM, has been and is presently
`
`indirectly infringing at least claim 1 of the ’243 Patent, including actively inducing infringement
`
`
`-17-
`
`

`

`of the ’243 Patent under 35 U.S.C. § 271(b). Such inducements include without limitation, with
`
`specific intent to encourage the infringement, knowingly inducing customers to use infringing
`
`articles and methods that NetApp knows or should know infringe one or more claims of the ’243
`
`Patent. NetApp instructs its customers, including Apache and ON Semiconductor, to make and
`
`use the patented inventions of the ’243 Patent by operating NetApp’s products in accordance
`
`with NetApp’s specifications. NetApp specifically intends its customers, including Apache and
`
`ON Semiconductor, to infringe by implementing ONTAP with SnapLock for the storage of read-
`
`only WORM data. Marking an active writable file as read-only on a SnapLock volume commits
`
`the data to WORM. When a file is committed to WORM, it cannot be altered or deleted by
`
`applications, users, or administrators until the file retention date is reached.
`
`
`
`As a result of NetApp’s, Apache’s, and ON Semiconductor’s infringement of the
`
`’243 Patent, KOM has suffered monetary damages, and is entitled to an award of damages
`
`adequate to compensate it for such infringement under 35 U.S.C. § 284, including lost profits but
`
`in no event less than a reasonable royalty.
`
`VI. WILLFUL INFRINGEMENT
`
`
`
`Plaintiff alleges upon information and belief that, in connection with the
`
`knowledge it gained in connection with its own prosecution activities, Defendant and/or its
`
`closely-related affiliates have been made aware of at least the ’864 Patent and ’624 Patent.
`
`
`
`Notwithstanding this knowledge, Defendant NetApp has knowingly or wit

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