Case 1:20-cv-00518-JLH Document 40-2 Filed 07/22/22 Page 1 of 6 PageID #: 880
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`IN THE UNITED STATES DISTRICT COURT
`FOR DISTRICT OF DELAWARE
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`AMERANTH, INC.
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`Plaintiff,
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`v.
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`OLO INC.
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`Defendant.
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`) Civil Action No. 1:20-cv-518-VAC
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`DECLARATION OF KEITH R. McNALLY
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`I, Keith R. McNally, pursuant to 28 U.S.C. § 1746, declare as follows:
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`1.
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`I am over 21 years of age and competent to testify. I have personal knowledge of
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`all of the facts below related to the history of Ameranth, Inc. ("Ameranth") and my inventing the
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`invention claimed in the '651 patent and Ameranth's enforcement action against OLO.. If called
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`upon to testify, I would and could do so competently as set forth herein.
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`2.
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`I was the original Founder and President of Ameranth in June 1996. I have been
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`responsible for the conceptualization of most of Ameranth's inventions and patents, including the
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`'651 patent and I am still the President of Ameranth.
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`3.
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`I provide this declaration to confirm that Ameranth never was, is not now – and
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`will never be – the kind of unscrupulous company, that without evidence, OLO falsely alleged that
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`Ameranth is in its exceptional case motion; arguing that Ameranth needed to be "deterred" from
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`pursuing improper conduct with respect to its patents; conduct that never occurred. In fact, it is
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`just the opposite, as is confirmed/explained below. There is no fact from OLO that Ameranth has
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`actually pursued such nefarious activity and it is simply indisputable that Ameranth neither
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`threatened OLO nor offered or demanded a settlement of any kind. While it is true that Ameranth
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`filed suit against approximately 30 infringing defendants (nearly a decade ago), having a patent
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`1
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`Case 1:20-cv-00518-JLH Document 40-2 Filed 07/22/22 Page 2 of 6 PageID #: 881
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`that is widely infringed is not representative of bad conduct or bad motives. Rather, as is confirmed
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`below, including the fact that 48 different companies have licensed Ameranth's patents, the breadth
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`of Ameranth's patents merely confirms that Ameranth's inventions were breakthrough innovations
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`in a very large market. Further, all of those earlier complaints, were filed prior to the 2014 change
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`in U.S. Patent Law as to § 101 eligibility, via the US Supreme Court Alice ruling. Since the 2014
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`Alice ruling, and despite the vast Hospitality Market, Ameranth has and only after very careful
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`confirmation of infringement, filed only one new infringement suit, this one against OLO as to the
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`'651 patent, which issued after the Alice opinion. Further, I, as the lead inventor, firmly and
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`sincerely believed that the claims of the '651 patent were eligible and valid and directed to a
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`different invention based on the new material I included in my new continuation-in-part patent
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`application in July 2005. Thus there was and is no pattern of bad conduct needing to be deterred.
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`4.
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`While Ameranth is a small company, it is just the kind of company that the U.S.
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`patent system was designed to protect, i.e., a recognized innovator and one that develops and
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`patents its innovations to protect its own actual products/systems - designed for, brought into a
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`market (the Hospitality Market) and then widely and successfully deployed in thousands of
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`locations, i.e., in restaurants, hotels, and venues within that market, yet later unfairly copied by
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`unscrupulous competitors. Thus, Ameranth did not buy its patents for some kind of vexatious
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`litigation program rather; it patented its own technology in connection with and in support of the
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`development of its innovative and award-winning products.
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`5.
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`Ameranth is not a patent enforcement entity that threatens small entities and seeks
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`nuisance value settlements below the cost of litigation, akin to the plaintiffs that OLO unfairly and
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`inaptly compares Ameranth.
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`Case 1:20-cv-00518-JLH Document 40-2 Filed 07/22/22 Page 3 of 6 PageID #: 882
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`6.
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`When first introduced, Ameranth's inventions for mobile-wireless ordering and
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`payment processing in restaurants were hailed as almost like science fiction and "poised to become
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`the industry standard." Rita Gunther McGrath and Ian C. MacMillan, Market Busters: 40 Strategic
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`Moves that Drive Exceptional Business Growth, Harvard Bus. School Press 34-35 (2004). See
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`Wireless Finds a Welcome
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`in Hospitality, Bloomberg Businessweek (Feb. 8, 2004),
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`https://www.bloomberg.com/news/articles/2004-02-08/wireless-finds-a-welcome-in-hospitality
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`("not quite Star Trek"). Key luminaries in the field recognized Ameranth's scientific achievements.
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`In nominating Ameranth for one on the many honors it was awarded, Bill Gates put it succinctly:
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`"Ameranth is one of the leading pioneers of the information technology age for the betterment of
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`mankind." CISION PR Newswire.
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`7.
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`Most of Ameranth's products were linked to Ameranth's patents and many won
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`multiple technology awards thus further confirming that they were innovative and breakthroughs
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`and that Ameranth is not the type of unscrupulous mere patent assertion entity OLO sought to
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`unfairly associate Ameranth with. For example, Ameranth's 21st Century RestaurantTM won the
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`most innovative product of the year at the European Hospitality Convention in October 1999.
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`Ameranth also won the Moby Award for its Improv Comedy Theatres Ticketing And Food
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`Ordering system in November 2000, and it was nominated by Bill Gates, Microsoft's co-founder,
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`for an award from ComputerWorld in 2001, which it won, and Ameranth also won the prestigious
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`Microsoft Retail Application Developer (RAD) Awarding 2003 for its Hostalert restaurant seating
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`and table management system that was deployed with Red Lobster. Further confirming the
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`breakthrough nature of Ameranth's technology, Microsoft, which it very rarely does, then
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`partnered with and made a $2.5 million strategic investment into Ameranth, clearly indicative of
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`Case 1:20-cv-00518-JLH Document 40-2 Filed 07/22/22 Page 4 of 6 PageID #: 883
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`Ameranth's innovations, and inapposite from the kinds of companies OLO alleged Ameranth is
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`like.
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`8.
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`Ameranth's patents have been very widely licensed throughout the entire hospitality
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`marketplace and the vast majority of these licenses occurred from fair minded, ethical companies
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`approaching Ameranth for a license (i.e., not through litigation), having recognized its innovations
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`and the value of its patents. Further, these dozens of licensees were not only small companies but
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`many of the world's largest restaurant companies including, e.g. Taco Bell, Dunkin Donuts, Burger
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`King and others, as well as the leading technology companies supplying/supporting them.
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`Cardfree, XPIENT and PAR provide technology support for more than 100,000 restaurants, and
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`they are licensees of Ameranth's patented technology.
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`9.
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`Finally, the particular innovations of the '651 patent/claims, which I invented and
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`disclosed in the '651 patent's continuation-in-part application in July 2005 were introduced into
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`the Hospitality Market in November 2005 in support of Ameranth's Magellan Restaurant
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`Reservation System and licensed by and deployed in thousands of Zagat Restaurants, confirming
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`their novelty and widespread success and acceptance, and as was confirmed by the COO of Zagat
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`and as stated in Ameranth's Amended Complaint (D.I. 23-1) at ¶ 24 and Ameranth's original
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`complaint (D.I. 1) at ¶ 23. Many of the numerous beneficial improvements and benefits of the
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`Magellan System are shown in the Magellan Partnership Vision System Diagram below, and this
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`diagram was attached to the complaints at Exhibit E:
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`10.
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`In conclusion, as my declaration and the facts/evidence above confirm, Ameranth
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`filed its '651 patent infringement suit against OLO in good faith and merely as part of its right to
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`protect its intellectual property as is allowed by the U.S. Patent System. Ameranth is not the kind
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`of entity that seeks to unfairly exploit its patents against small companies, nor will it ever do so.
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`Further the exceptional case ruling as in the separate Domino's cases in San Diego, was/is based
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`on an entirely untrue and improper basis, and Ameranth strongly objects and is planning to appeal
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`that unjust ruling.
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`11.
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`Ameranth requests the Court deny OLO's motion for a declaration of exceptional
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`case, which this was not, deny any award of fees against it for merely exercising its right to protect
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`its intellectual property of one patent against one infringing company. If the Court needed any
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`Case 1:20-cv-00518-JLH Document 40-2 Filed 07/22/22 Page 6 of 6 PageID #: 885
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`further confirmation of the sincerity of my belief and Ameranth's belief of the eligibility of its
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`patents, surely, Ameranth's decision to seek appellate review all of the way to the U.S. Supreme
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`Court (an enormous expense for a very small company like Ameranth) confirms that. That action
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`speaks louder than any words I can convey to the Court.
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`I declare under the penalty of perjury that the foregoing is true and correct. Executed on
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`July 22, 2022.
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`Keith McNally
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`6
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