Case 1:18-cv-00160-RGA Document 11 Filed 03/23/18 Page 1 of 22 PageID #: 203
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`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.
`
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`C.A. No. 18-160-GMS
`
`
`JURY TRIAL DEMANDED
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`
`
`
`
`FIRST AMENDED COMPLAINT
`
`Plaintiff KOM Software Inc. (“Plaintiff” or “KOM”), by and through its attorneys, for its
`
`First Amended Complaint against NetApp, Inc., (“NetApp”), Apache Corporation (“Apache”),
`
`and ON Semiconductor, LLC (“ON Semiconductor”) (together, “Defendants”) and demanding
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`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’
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`unauthorized use, sale, and offer to sell in the United States of products, methods, processes,
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`services and/or systems that infringe KOM’s United States patents, as described herein.
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`
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`NetApp manufactures, provides, uses, sells, offers for sale, imports, and/or
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`distributes infringing products and services; and encourages others to use its products and services
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`in an infringing manner, including Apache, ON Semiconductor and other of its customers, as set
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`forth herein.
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`
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`KOM seeks past and future damages and prejudgment and post-judgment interest
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`for NetApp’s past infringement of the Patents-in-Suit, as defined below.
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`

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`Case 1:18-cv-00160-RGA Document 11 Filed 03/23/18 Page 2 of 22 PageID #: 204
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`II. PARTIES
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`
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`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
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`2N2 Canada.
`
`
`
`On information and belief, Defendant NetApp is a corporation organized under the
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`laws of Delaware. NetApp’s registered agent for service of process in Delaware is Corporation
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`Service Company, 251 Little Falls Drive, Wilmington, Delaware 19808.
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`
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`On information and belief, Defendant Apache is a corporation organized under the
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`laws of Delaware. Apache’s registered agent for service of process in Delaware is The Corporation
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`Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
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`
`
`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
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`in Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
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`Wilmington, Delaware 19801.
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`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
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`U.S.C. §§ 1331 and 1338(a).
`
`
`
`On information and belief, venue is proper in this district pursuant to 28 U.S.C.
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`§§ 1391(b), 1391(c), and 1400(b) because Defendants have incorporated in this State, have
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`transacted business in this Judicial District, and have committed and/or induced acts of patent
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`infringement in this Judicial District.
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`-2-
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`

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`Case 1:18-cv-00160-RGA Document 11 Filed 03/23/18 Page 3 of 22 PageID #: 205
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`
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`On information and belief, Defendants are subject to this Court’s specific and
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`general personal jurisdiction pursuant to due process and/or the Delaware Long Arm Statute, due
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`at least to its substantial business in this forum, including: (i) at least a portion of the infringements
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`alleged herein; and (ii) regularly doing or soliciting business, engaging in other persistent courses
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`of conduct, and/or deriving substantial revenue from goods and services provided to individuals
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`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
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`secure data software to safeguard, secure, protect and preserve information. For over three
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`decades, KOM has set industry standards for securing data that other companies aspire to emulate
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`and follow. KOM develops next-generation secure data software solutions that work on any
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`infrastructure to deliver cloud-like economics and agility, with the security and reliability of on-
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`premise solutions.
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`
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`KOM delivers affordable, easy-to-use and highly-scalable long-term secure data
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`storage software solutions that safeguard and protect information to meet individual customer
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`needs across the most highly regulated industries and that support critical third-party applications
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`such as E-mail archiving, Enterprise Content Management (ECM) and Document Management
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`Systems (DMS).
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`
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`KOM also offers KOMpliance, an enterprise-class industry leading software
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`solution enforcing data security, privacy and protection against security threats and vulnerabilities
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`- like ransomware, and accidental or malicious acts. KOMpliance sets the mark for cost-effective,
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`easy-to-implement and maintain, long-term secure data integrated solutions for secure data
`
`-3-
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`

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`Case 1:18-cv-00160-RGA Document 11 Filed 03/23/18 Page 4 of 22 PageID #: 206
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`storage. KOMpliance represents a next generation of software technologies following historical
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`KOM product offerings including OptiFile, a VMS based storage management software enabling
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`direct-write to Write-Once-Read-Many “WORM” optical disk for data archive and compliance;
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`OptiServer, a UNIX based storage management software for archiving, access, and protection of
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`mission critical data on optical media and jukeboxes; and KOMworx, a Windows-based storage
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`management software solution that provides compliance, archiving, fixed content hard disk
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`archiving, dynamic capacity management, and information lifecycle management.
`
`
`
`KOM patented software-based
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`immutable WORM and encryption
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`for
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`unconditionally enforcing retention, privacy and secure erasure to meet strict compliance
`
`regulations, mitigate risks, and eliminate errors avoiding punitive fines and penalties without
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`having to deploy proprietary hardware. KOM’s unique approach to data security allows
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`organizations to take on advances in storage and server technology without having to resort to
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`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.
`
`
`
`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.
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`-4-
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`

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`Case 1:18-cv-00160-RGA Document 11 Filed 03/23/18 Page 5 of 22 PageID #: 207
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`
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`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
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`a common specification, and are referred to herein as “Family 2.”
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`
`
`Together, the foregoing patents are referred to herein as the “Patents-in-Suit.”
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`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.
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`DEFENDANTS’ ACTS
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`
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`NetApp provides software and services directed to detection, analysis and
`
`monitoring of data flow in a data network environment.
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`-5-
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`

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`
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`For example, NetApp provides Data ONTAP, including the ONTAP 9 Data
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`Management Software. ONTAP includes the OnCommand management platform, which helps
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`automate storage processes.
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`
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`Using ONTAP, storage processes can be integrated into customers’ data centers for
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`end-to-end service delivery for private and hybrid cloud services. NetApp ONTAP provides a
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`software-defined storage infrastructure using flexible storage configurations.
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`
`
`NetApp also provides NetApp Management Console. The NetApp Management
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`Console data protection capability provides a policy-based management tool to help unify and
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`automate backup and mirroring operations.
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`
`
`The NetApp Management Console provisioning capability helps simplify and
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`automate the tasks of provisioning and managing storage. It provides policy-based provisioning
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`and conformance of storage in datasets. This capability also enables adding volumes or qtrees to a
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`dataset at any time, provides manual controls for space and capacity management of existing
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`storage and newly provisioned storage, and enables migration of datasets and vFiler units to a new
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`storage destination.
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`
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`For example, ONTAP Select converts a server’s internal disk drives, SSD or HDD,
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`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 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.
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`-6-
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`

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`Case 1:18-cv-00160-RGA Document 11 Filed 03/23/18 Page 7 of 22 PageID #: 209
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`
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`The data that is committed to the WORM state on a SnapLock volume cannot be
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`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.
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`
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`NetApp also provides StorageGRID Webscale, which stores and manages
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`unstructured data at scale for secure, durable object storage.
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`
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`In StorageGRID, information lifecycle management (ILM) settings determine how
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`an object’s data is managed and protected from loss over time. These settings are applied through
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`an active ILM policy, which is made up of ILM rules.
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`
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`Every object ingested into the StorageGRID Webscale system is evaluated against
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`the system’s active ILM policy and then its object data is copied and distributed based on the active
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`ILM policy’s ILM rules. An object’s metadata is managed by the DDS service and not through
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`ILM rules.
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`
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`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.
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`
`
`Apache practices the methods and uses the systems claimed in the Patents-in-Suit,
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`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.
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`
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`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 is
`
`able to access its 3D models in near-real-time. Apache is capable of handling more iterations of
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`data and has experienced boosted productivity by hours each day. Due to its use of clustered Data
`
`-7-
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`

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`ONTAP, Apache has an improved data infrastructure, has constant access to its data, and is more
`
`capable 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.
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`
`
`Through its use of NetApp’s ONTAP Data Management Software, ON
`
`Semiconductor has increased its data availability and disaster recovery for its global manufacturing
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`operations. ON Semiconductor experienced 26% improvement in recovery time objectives and
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`50% improvement in recovery point objectives. Additionally, ON Semiconductor implemented a
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`standardizing of its infrastructure across 125 global sites and the ONTAP Software enabled non-
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`disruptive operations during hardware and software updates and enables ON Semiconductor to
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`scale out its storage as the company adds new sites. As a result, ON Semiconductor has reduced
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`its costs to operate by 30% and reduced its energy consumption by 40%, leading to an increase in
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`cost savings with an increase in productivity.
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`
`
`In addition, NetApp provides installation and support services, including NetApp
`
`Services as described on its website, https://www.netapp.com/us/services/index.aspx.
`
`
`
`
`
`
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`On information of belief, Defendant NetApp also implements contractual
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`protections in the form of license and use restrictions with its customers to preclude the
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`unauthorized reproduction, distribution and modification of its software and systems. Moreover,
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`on information and belief, Defendant NetApp implements technical precautions to attempt to
`
`prevent customers from circumventing the intended operation of NetApp’s products.
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`-8-
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`

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`Case 1:18-cv-00160-RGA Document 11 Filed 03/23/18 Page 9 of 22 PageID #: 211
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`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. KOM specifically accuses
`
`NetApps’ Data ONTAP 8, and ONTAP 9 software. KOM further accuses the NetApp devices this
`
`software operates, including ONTAP Select, ONTAP Cloud, Data ONTAP Edge, NetApp FAS
`
`Series devices, and NetApp AAF A-Series devices. Furthermore, KOM accuses NetApp’s
`
`StorageGRID software, and the StorageGRID Webscale Appliance. Defendants NetApp, Apache,
`
`and ON Semiconductor are accused of direct infringement through making, using selling and
`
`offering for sale of infringing NetApp products, including the ONTAP Data Management
`
`Software.
`
`-9-
`
`

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`
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`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 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. For example, ONTAP 9 Data
`
`Management Software utilizes Infinite Volumes as a means for storing data at locations within
`
`said virtual file-based non-volatile storage device as described by the ‘642 Patent. See the ONTAP
`
`9 Infinite Volumes Management Guide,
`
` https://library.netapp.com/ecm/ecm_download_file/ECMLP2494088.
`
`
`
`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.
`
`-10-
`
`

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`Case 1:18-cv-00160-RGA Document 11 Filed 03/23/18 Page 11 of 22 PageID #: 213
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`
`
`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. §
`
`271(a). Exemplary infringing instrumentalities include ONTAP 9 Data Management Software and
`
`all associated interfaces, hardware, software, and digital content. KOM specifically accuses
`
`NetApps’ Data ONTAP 8 and ONTAP 9 software of direct infringement. KOM further accuses
`
`the NetApp devices this software operates, including ONTAP Select, ONTAP Cloud, Data
`
`ONTAP Edge, NetApp FAS Series devices, and NetApp AAF A-Series devices, of direct
`
`infringement. Furthermore, KOM accuses NetApp’s StorageGRID software, and the StorageGRID
`
`Webscale Appliance. Defendants NetApp, Apache, and ON Semiconductor are accused of direct
`
`infringement through making and using infringing NetApp products, including the ONTAP Data
`
`Management Software.
`
`
`
`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
`
`-11-
`
`

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`Case 1:18-cv-00160-RGA Document 11 Filed 03/23/18 Page 12 of 22 PageID #: 214
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`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. For example, the StorageGRID webscale system employs
`
`lifecycle management (ILM) rules to automatically move files after a period of time. Further, for
`
`example, the ONTAP Data Management Software supports automated data tiering using the Flash
`
`Cache, Flash Pool, and FabricPool features.
`
`
`
`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.
`
`
`
`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
`
`-12-
`
`

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`Case 1:18-cv-00160-RGA Document 11 Filed 03/23/18 Page 13 of 22 PageID #: 215
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`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 instrumentalities include
`
`ONTAP 9 Data Management Software and all associated interfaces, hardware, software, and
`
`digital content. KOM specifically accuses NetApps’ Data ONTAP 8, and ONTAP 9 software.
`
`KOM further accuses the NetApp devices this software operates, including ONTAP Select,
`
`ONTAP Cloud, Data ONTAP Edge, NetApp FAS Series devices, and NetApp AAF A-Series
`
`devices. Defendants NetApp, Apache, and ON Semiconductor are accused of direct infringement
`
`through making, using selling and offering for sale of infringing NetApp products, including the
`
`ONTAP Data Management Software.
`
`
`
`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
`
`-13-
`
`

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`Case 1:18-cv-00160-RGA Document 11 Filed 03/23/18 Page 14 of 22 PageID #: 216
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`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 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 instrumentalities include
`
`ONTAP 9 Data Management Software and all associated interfaces, hardware, software, and
`
`digital content. KOM specifically accuses NetApps’ Data ONTAP 8, and ONTAP 9 software.
`
`KOM further accuses the NetApp devices this software operates, including ONTAP Select,
`
`ONTAP Cloud, Data ONTAP Edge, NetApp FAS Series devices, and NetApp AAF A-Series
`
`devices. Defendants NetApp, Apache, and ON Semiconductor are accused of direct infringement
`
`-14-
`
`

`

`Case 1:18-cv-00160-RGA Document 11 Filed 03/23/18 Page 15 of 22 PageID #: 217
`
`through making, using selling and offering for sale of infringing NetApp products, including the
`
`ONTAP Data Management Software.
`
`
`
`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
`
`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.
`
`-15-
`
`

`

`Case 1:18-cv-00160-RGA Document 11 Filed 03/23/18 Page 16 of 22 PageID #: 218
`
`
`
`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 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 instrumentalities include
`
`ONTAP 9 Data Management Software and all associated interfaces, hardware, software, and
`
`digital content. KOM specifically accuses NetApps’ Data ONTAP 8, and ONTAP 9 software.
`
`KOM further accuses the NetApp devices this software operates, including ONTAP Select,
`
`ONTAP Cloud, Data ONTAP Edge, NetApp FAS Series devices, and NetApp AAF A-Series
`
`devices. Defendants NetApp, Apache, and ON Semiconductor are accused of direct infringement
`
`through making, using selling and offering for sale of infringing NetApp products, including the
`
`ONTAP Data Management Software.
`
`
`
`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
`
`-16-
`
`

`

`Case 1:18-cv-00160-RGA Document 11 Filed 03/23/18 Page 17 of 22 PageID #: 219
`
`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.
`
`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 infringin