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`Case 1:15-cv-00319-AT Document 1 Filed 01/30/15 Page 1 of 18Case 1:16-cv-02690-AT Document 10-3 Filed 12/10/15 Page 2 of 19
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`
`
`
`
`EMERSON ELECTRIC CO., FISHER-
`ROSEMOUNT SYSTEMS, INC., and
`ROSEMOUNT INC.,
`
`Plaintiffs,
`
`
`
`
`
`
`
`v.
`
`SIPCO LLC, and
`IP CO., LLC (d/b/a INTUS IQ)
`
`
`
`
`
`Defendants.
`
`Civil Action No. ______________
`
`Declaratory Judgment
`Patent
`
`COMPLAINT FOR DECLARATORY JUDGMENT OF
`PATENT NON-INFRINGEMENT AND INVALIDITY
`
`1.
`
`Plaintiffs Emerson Electric Co., Fisher-Rosemount Systems, Inc., and
`
`Rosemount Inc. (collectively, “Emerson” or “Plaintiffs”) bring this action against
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`Defendants SIPCO LLC (“SIPCO”) and IP CO., LLC d/b/a Intus IQ (“IPCO”)
`
`(collectively “Defendants”) seeking a declaratory judgment that the claims
`
`identified below from United States Patent Nos. 7,103,511 (“the ‘511 Patent”)
`
`(“the SIPCO Patent”); and 6,044,062 (“the ‘062 Patent”) (“the IPCO Patent”) are
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`invalid and not infringed by Emerson.
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`6406736.1
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`Case 1:15-cv-00319-AT Document 1 Filed 01/30/15 Page 2 of 18Case 1:16-cv-02690-AT Document 10-3 Filed 12/10/15 Page 3 of 19
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`PARTIES
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`2.
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`Plaintiff Emerson Electric Co. is a corporation organized and existing
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`under the laws of the State of Missouri, having its principal place of business at
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`8000 W. Florissant Ave., St. Louis, Missouri 63136.
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`3.
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`Plaintiff Fisher-Rosemount Systems, Inc. is an indirect, wholly-owned
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`subsidiary of Emerson Electric Co. and is a corporation incorporated under the
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`laws of the State of Delaware, having its principal place of business at 1100 W.
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`Louis Henna Blvd., Bldg. 1, Round Rock, Texas 78681.
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`4.
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`Plaintiff Rosemount Inc. is an indirect, wholly-owned subsidiary of
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`Emerson Electric Co. and is a corporation organized and existing under the laws of
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`the State of Minnesota, having its principal place of business at 8200 Market Blvd.,
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`Chanhassen, Minnesota 55317.
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`5.
`
`Upon information and belief, Defendant SIPCO is a limited liability
`
`company organized and existing under the laws of the State of Georgia, having its
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`principal office at 8215 Roswell Road, Building 900, Suite 950, Atlanta, Georgia
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`30350.
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`6.
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`Upon information and belief, Defendant IPCO is a limited liability
`
`company organized and existing under the laws of the State of Georgia, having its
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`principal office at 8215 Roswell Road, Building 900, Suite 950, Atlanta, Georgia
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`30350.
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`JURISDICTION AND VENUE
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`7.
`
`The claims asserted in this Complaint arise under the Patent Laws of
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`the United States, 35 U.S.C. § 100, et seq., and under the Declaratory Judgment
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`Act, 28 U.S.C. §§ 2201 and 2202, and are brought for a declaration by this Court
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`that the claims identified below from the SIPCO Patent and the IPCO Patent
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`(collectively “the Patents-in-Suit”) are invalid and not infringed by Emerson.
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`8.
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`This Court has jurisdiction over the claims asserted in this Complaint
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`under 28 U.S.C. §§ 1331, 1338(a), 2201 and 2202. An actual and justiciable
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`controversy exists between Emerson and Defendants concerning the alleged
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`infringement and validity of the Patents-in-Suit.
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`9.
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`This Court has personal jurisdiction over the Defendants. Defendant
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`SIPCO, a Georgia company, maintains a principal place of business in this judicial
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`district, conducts business licensing and enforcing its patent portfolio from such
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`place of business, and has purposefully directed activities related to the
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`enforcement and defense of the SIPCO Patent in this judicial district. SIPCO has
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`previously asserted the ‘511 Patent, and other related patents, including U.S. Patent
`
`No. 6,437,692 (“the ‘692 Patent”), and U.S. Patent No. 7,697,492 (“the ‘492
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`Patent”)), in this judicial district. SIPCO has continuous and systematic contacts
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`with Georgia and this judicial district. Defendant SIPCO may be served with
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`process on its registered agent, Michael Coleman, 3560 Lenox Road, Suite 1600,
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`Atlanta, Georgia 30326.
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`10. Defendant IPCO, a Georgia company, maintains a principal place of
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`business in this judicial district, conducts business licensing and enforcing its
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`patent portfolio from such place of business, and has purposefully directed
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`activities related to the enforcement and defense of the IPCO Patent in this judicial
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`district. IPCO has previously asserted the ‘062 Patent, and a related patent (U.S.
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`Patent No. 6,249,516 (“the ‘516 Patent”)), in this judicial district. IPCO has
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`continuous and systematic contacts with Georgia and this judicial district.
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`Defendant IPCO may be served with process on its registered agent, Andrea Marie
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`Booher, at 945 East Paces Ferry Road, Suite 2700, Atlanta, Georgia 30326.
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`11. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b),
`
`(c), and (d).
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`BACKGROUND
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`12. The ‘511 Patent, entitled “Wireless communication networks for
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`providing remote monitoring of devices,” issued on September 5, 2006.
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`13. SIPCO has represented that the ‘511 Patent is currently assigned to it.
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`14. The ‘692 Patent, the ‘893 Patent, and the ‘492 Patent are related to
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`each other because they are part of the same patent family.
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`15. The ‘062 Patent, entitled “Wireless network system and method for
`
`providing same,” issued on March 28, 2000.
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`16.
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`IPCO has represented that the ‘062 Patent is currently assigned to it.
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`17. The ‘062 Patent and the ‘516 Patent are related to each other because
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`they are part of the same patent family.
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`18. On or about February 5, 2007, Emerson received a letter dated
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`January 31, 2007, from John C. Herman of Duane Morris, counsel for IPCO, LLC
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`(“the IPCO Letter”).
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`19. Upon information and belief, IPCO is an entity closely related to
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`SIPCO. Both entities share the same principal place of business and largely the
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`same management team, including common founder T. David Petite.
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`20. The IPCO Letter alleges that “Emerson is currently manufacturing,
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`using, selling and/or offering for sale a mesh network system” and encloses four
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`patents, including the ‘516 Patent, the ‘062 Patent, and the ‘511 Patent. The IPCO
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`Letter states that its purpose was “to put your company on notice of IPCO’s
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`intellectual property rights.”
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`21. On or about February 16, 2007, Emerson responded to the IPCO
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`Letter with a letter asking Mr. Herman to specify which of Emerson’s products he
`
`believed required a license and which claims of the patents were relevant.
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`22. Emerson did not receive a response to its February 2007 letter and
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`received no further communication from Mr. Herman or anyone associated with
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`IPCO or SIPCO about any of the Patents-in-Suit for nearly four years.
`
`23.
`
`In January 2011, plaintiff Rosemount became the target of activity
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`related to the ‘511 and ‘492 Patents in SIPCO, LLC v.Control4 Corporation, et al.,
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`N.D. Ga. Case No. 1:11-cv-00612-JEC (“the Control4 case”).
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`24. On or about January 10, 2011, Rosemount received a letter from
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`Siemens AG notifying Rosemount of the Control4 case, in which SIPCO accused
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`certain products of Siemens Industry, Inc. (an indirect subsidiary of Siemens AG)
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`of infringing the ‘511 and ‘492 Patents and one additional patent. The letter
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`alleged that such products are subject to indemnification from Rosemount due to a
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`contractual provision between Rosemount and Siemens AG.
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`25. On or about January 27, 2011, SIPCO served a subpoena upon
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`Rosemount in connection with the Control4 case. The subpoena demanded that
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`Rosemount produce documents related to products Rosemount supplied or had
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`supplied to Siemens Industry, Inc.
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`26. The subpoena from SIPCO included broad document requests. For
`
`example, Request No. 1 asked for “[d]ocuments sufficient to identify all Products,
`
`including any ZigBee, WirelessHART, ISA-100, Z-Wave, EnOcean, JenNet,
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`6WLoPAN, 802.15.4, or other wireless communication protocol-enabled devices,
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`that were sold, leased, or in any way provided by Rosemount to Siemens since
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`May 1, 2003, including without limitation Rosemount’s 1420 Gateway.” Request
`
`No. 3 asked for “[a]ll documents that refer, reflect, or relate to any agreement to
`
`indemnify, defend, or hold harmless between Rosemount and Siemens for claims
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`related to any Products identified in response to Request No. 1.” Request No. 4
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`asked for “[a]ll technical documents that refer, reflect, or relate to each Product
`
`responsive to Request No. 1.”
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`27. Rosemount responded to the discovery by producing documents
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`designated as “Confidential” under the Stipulated Protective Order in the Control4
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`case.
`
`28.
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`In or around late February or early March 2013, Emerson received a
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`letter dated February 27, 2013 from Candida Petite, COO of SIPCO, LLC (“the
`
`SIPCO Letter”).
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`29. The SIPCO Letter is “regarding licensing of the Wireless Mesh Patent
`
`Portfolio owned by SIPCO, LLC and IntusIQ (formerly known as IPCO, LLC)”
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`and states “[w]e understand that some of Emerson’s products such as the Emerson
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`Smart Wireless product line may incorporate features that make use of patents in
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`the Wireless Mesh Patent Portfolio License, and therefore, would benefit from
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`such a license.”
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`30. On or about March 18, 2013, Emerson responded to the SIPCO Letter
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`with a letter expressing surprise at receiving the SIPCO Letter and its allegations
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`“given past events,” including Emerson’s February 16, 2007 response to the IPCO
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`Letter from which “[m]ore than six years have passed without Emerson receiving
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`the information it requested or SIPCO ever indicating that it believed that Emerson
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`required a license for wireless products being sold by its Emerson Process
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`Management business units. Thus, these Emerson business units have continued to
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`invest in the development of and grow the market for these wireless products
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`throughout this period.” Emerson’s response further states that “[w]e have no
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`reason to believe that SIPCO’s patents implicate Emerson’s Smart Wireless
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`products…” and asks “if you have information that you would like us to review
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`with respect to any specific Emerson products and SIPCO’s patents, we would be
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`happy to consider it and respond to you promptly when we do.”
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`31. Emerson and Defendants have had further communications, including
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`a July 9, 2013 e-mail from Candida Petite forwarding a purported “standard license
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`agreement”.
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`32. On or about July 14, 2013, Candida Petite provided charts with
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`“illustrative examples” comparing Emerson’s products to claims of the ‘511 Patent
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`and other SIPCO Patents, and to claims of the ‘062 Patent and other IPCO Patents
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`and purportedly showing infringement (“the SIPCO/IPCO Illustrative Claim
`
`Charts”).
`
`33. The SIPCO/IPCO Illustrative Claim Charts assert infringement of
`
`claim 18 of U.S. Patent No. 6,437,692 (“the ’692 Patent”) by specific models of
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`Emerson’s products (“the ‘692 Accused Products”); claim 1 of the ’893 Patent by
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`specific models of Emerson’s products (“the ‘893 Accused Products”); claim 1 of
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`the ’511 Patent by specific models of Emerson’s products (“the ‘511 Accused
`
`Products”); claim 14 of the ‘492 Patent by specific models of Emerson’s products
`
`(“the ‘492 Accused Products”); claim 13 of U.S. Patent No. 8,013,732 (“the ‘732
`
`Patent”) by specific models of Emerson’s products (“the ‘732 Accused Products”);
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`claim 2 of the ‘062 Patent by specific models of Emerson’s products and by
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`“Emerson’s Wireless Field Data Backhaul Network” (collectively, “the ‘062
`
`Accused Products”); claim 1 of the ‘516 Patent by specific models of Emerson’s
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`products (“the ‘516 Accused Products”); and claim 10 of U.S. Patent No.
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`8,000,314 (“the ‘314 Patent”) by specific models of Emerson’s products (“the ‘314
`
`Accused Products”).
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`34. SIPCO and IPCO have brought numerous lawsuits against more than
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`50 defendants alleging infringement of the Patents-in-Suit and other patents
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`belonging to the same patent families as the Patents-in-Suit, both in this judicial
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`district and in others. These lawsuits include:
`
`a.
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`IPCO, LLC v. Elster Electricity, LLC, Northern District of
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`Georgia, Atlanta Division (1:05-cv-01182-CC) (asserting the ‘516 Patent);
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`b.
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`IP Co., LLC v. Cellnet Technology, Inc., Northern District of
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`Georgia, Atlanta Division (1:05-cv-02658-CC) (asserting the ‘516 and ‘062
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`Patent);
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`c.
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`IP Co., LLC, et al. v. Cellnet Technology, Inc. and Tropos
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`Networks, Inc., Northern District of Georgia, Atlanta Division (1:06-cv-03048-
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`JEC) (asserting the ‘511 Patent);
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`d.
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`SIPCO, LLC v. Amazon.com, Inc., Cooper Industries, Ltd.,
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`Cooper Wiring Devices, Inc., Crestron Electronics, Inc., Eaton Corporation,
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`Hawking Technologies, Inc., Homeseer Technologies, Inc., Intermatic, Inc.,
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`Leviton Manufacturing Co., Inc., Smart Home Systems, Inc., Wayne-Dalton Corp.,
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`and X10 Wireless Technology, Inc., Eastern District of Texas, Marshall Division
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`(2:08-cv-00359-DF) (asserting the ‘511 Patent);
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`e.
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`SIPCO, LLC and Advanced Sensor Technology, Inc. v. The
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`Toro Company, Eastern District of Pennsylvania (2:08-cv-00505-TJS) (asserting
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`the ‘511 Patent);
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`f.
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`SIPCO LLC v. Datamatic, Ltd., EKA Systems, Inc., Johnson
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`Controls, Inc., Sensus USA Inc., and Trilliant Networks, Inc., Eastern District of
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`Texas, Tyler Division (6:09-cv-00532-LED-JDL) (asserting the ‘511 Patent and
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`one other patent);
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`g.
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`SIPCO LLC v. Control4 Corporation, Digi International Inc.,
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`Home Automation Inc., Schneider Electric Buildings Americas, Inc., Schneider
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`Electric USA, Inc., and Siemens Industry, Inc., Northern District of Georgia,
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`Atlanta Division (1:11-cv-00612-JEC) (asserting the ‘511 and the ‘492 Patent and
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`one other patent);
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`h.
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`SIPCO, LLC v. Energate Inc., Ecobee Inc., Rainforest
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`Automation, Inc., Smartsynch, Inc., AMX Corporation, Simplehomenet, Inc., and
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`Centralite Systems, Inc., Eastern District of Texas, Tyler Division (6:10-cv-00533-
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`LED) (asserting the ‘511 and ‘492 Patents);
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`i.
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`SIPCO, LLC v. Abb, Inc., Coulomb Technologies, Inc.,
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`Ecotality, Inc., Electric Transportation Engineering Corporation d/b/a Ecotality
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`North America, Energyhub, Inc., Jetlun Corporation, Ingersoll-Rand Company,
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`Ingersoll-Rand Schlage Lock Holding Company LLC, Schlage Lock Company,
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`Trane, Inc., and Smartlabs, Inc., Eastern District of Texas, Tyler Division (6:11-
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`cv-00048-LED) (asserting the ‘511 and the ‘492 Patent and one other patent);
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`j.
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`SIPCO, LLC v. ADT Security Services, Inc., Southern District
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`of Florida, West Palm Beach Division (9:11-cv-80521-DMM) (asserting the ‘692,
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`‘511, ‘492 and the ‘893 Patents); and
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`k.
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`SIPCO, LLC v. Comcast Corporation and Comcast Broadband
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`Security, LLC, Southern District of Florida, West Palm Beach Division (9:11-cv-
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`80999-DMM) (asserting the ‘511 and the ‘492 Patent and two additional patents).
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`35.
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`It is evident from the lawsuits listed above that SIPCO and IPCO are
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`actively enforcing the Patents-in-Suit and their patent families through litigation.
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`36.
`
`It is further evident from the lawsuits listed above in Paragraphs 34
`
`(a), (b), (c) and/or (g) that SIPCO and IPCO are purposefully directing activities
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`related to the enforcement and defense of some of the Patents-in-Suit and other
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`patents from the same patent families in this judicial district.
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`37. The events described in the foregoing paragraphs, including the IPCO
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`Letter, the SIPCO Letter, SIPCO’s and IPCO’s proffered “standard license
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`agreement,” the SIPCO/IPCO Illustrative Claim Charts, and the additional
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`communications demonstrate the existence of a substantial controversy between
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`SIPCO and IPCO on the one hand and Emerson, parties having adverse legal
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`interests with respect to the validity and alleged infringement of the identified
`
`claims of the Patents-in-Suit. This controversy is of sufficient immediacy and
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`reality to warrant the issuance of a Declaratory Judgment.
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`38. Therefore, an actual and justiciable controversy exists between
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`Emerson and Defendants as to the infringement and the validity of identified
`
`claims of the Patents-in-Suit, and Emerson has no adequate remedy at law if the
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`Court does not issue a Declaratory Judgment and enjoin Defendants from asserting
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`its infringement claims.
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`COUNT I
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`(Invalidity of the ‘511 Patent – Claim 1)
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`39. Emerson repeats and re-alleges the allegations of paragraphs 1 - 38 as
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`if fully set forth herein.
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`40. Upon information and belief, claim 1 of the ‘511 Patent is invalid for
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`failure to comply with one or more of the requirements of Title 35, United States
`
`Code, including without limitation, Sections 101, 102, 103 and/or 112 thereof.
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`41. To resolve the legal and factual questions raised by Emerson and to
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`afford relief from the uncertainty and controversy which Defendants’ accusations
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`have precipitated, Emerson seeks a declaration from this Court that claim 1 of the
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`‘511 Patent is invalid.
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`COUNT II
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`(Invalidity of the ‘062 Patent – Claim 2)
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`42. Emerson repeats and re-alleges the allegations of paragraphs 1 - 38 as
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`if fully set forth herein.
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`43. Upon information and belief, claim 2 of the ‘062 Patent is invalid for
`
`failure to comply with one or more of the requirements of Title 35, United States
`
`Code, including without limitation, Sections 101, 102, 103 and/or 112 thereof.
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`44. To resolve the legal and factual questions raised by Emerson and to
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`afford relief from the uncertainty and controversy which Defendants’ accusations
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`have precipitated, Emerson seeks a declaration from this Court that claim 2 of the
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`‘062 Patent is invalid.
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`COUNT III
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`(Non-Infringement of the ‘511 Patent – Claim 1)
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`45. Emerson repeats and re-alleges the allegations of paragraphs 1 - 38 as
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`if fully set forth herein.
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`46. The ‘511 Accused Products do not infringe and have not infringed
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`claim 1 of the ‘511 Patent, either directly, by active inducement, or by contributing
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`to infringement by others.
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`47. To resolve the legal and factual questions raised by Emerson and to
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`afford relief from the uncertainty and controversy which Defendants’ accusations
`
`have precipitated, Emerson seeks a declaration from this Court that the ‘511
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`Accused Products do not infringe claim 1 of the ‘511 Patent.
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`COUNT IV
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`(Non-Infringement of the ‘062 Patent – Claim 2)
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`48. Emerson repeats and re-alleges the allegations of paragraphs 1 - 38 as
`
`if fully set forth herein.
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`49. The ‘062 Accused Products do not infringe and have not infringed
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`claim 2 of the ‘062 Patent, either directly, by active inducement, or by contributing
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`to infringement by others.
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`50. To resolve the legal and factual questions raised by Emerson and to
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`afford relief from the uncertainty and controversy which Defendants’ accusations
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`have precipitated, Emerson seeks a declaration from this Court that the ‘062
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`Accused Products do not infringe claim 2 of the ‘062 Patent.
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`DEMAND FOR JURY TRIAL
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`51. Emerson respectfully requests a trial by jury on all issues so triable.
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`PRAYER FOR RELIEF
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`WHEREFORE, Emerson requests entry of judgment in their favor and
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`against Defendants:
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`a.
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`Declaring that each of the identified claims of the Patents-in-
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`Suit is invalid under 35 U.S.C. § 101 et seq.;
`
`b.
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`Declaring that the ‘511 Accused Products, and the ‘062
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`Accused Products have not infringed, and will not infringe, any of the identified
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`claims of the Patents-in-Suit, either directly, by active inducement, or by
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`contributing to infringement by others;
`
`c.
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`Enjoining the Defendants and/or any affiliates, agents,
`
`successors and attorneys, and all persons in active concert or participation with any
`
`of them, from directly or indirectly asserting infringement against, or instituting
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`any further action for infringement of the identified claims of the Patents-in-Suit
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`against Plaintiffs, or any of their customers, affiliates, successors, assigns,
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`representatives, agents, subsidiaries, and vendors;
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`d.
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`Finding that this is an exceptional case under 35 U.S.C. § 285
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`and awarding Emerson the costs and expenses of this litigation, including
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`reasonable attorneys’ fees and disbursements; and
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`e.
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`Awarding to Emerson such other and further relief as the Court
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`may deem just and proper under the circumstances.
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`Dated: January 30, 2015
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`By: /s/ Damon J. Whitaker
` William V. Custer
`Georgia Bar No. 202910
`bill.custer@bryancave.com
`Damon J. Whitaker
`Georgia Bar No. 752722
`damon.whitaker@bryancave.com
`BRYAN CAVE, LLP
`One Atlantic Center, Fourteenth Floor
`1201 W. Peachtree St., N.W.
`Atlanta, Georgia 30309
`Tel: 404-572-6828
`Fax: 404-420-0828
`
`-Of Counsel-
`Donald L. Jackson
`James D. Berquist
`J. Scott Davidson
`DAVIDSON BERQUIST JACKSON &
`GOWDEY, LLP
`4300 Wilson Blvd., Suite 700
`Arlington, Virginia 22203
`Telephone: (703) 894-6400
`Facsimile: (703) 894-6430
`djackson@dbjg.com
`jberquist@dbjg.com
`
`- 17 -
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`
`
`
`Case 1:15-cv-00319-AT Document 1 Filed 01/30/15 Page 18 of 18Case 1:16-cv-02690-AT Document 10-3 Filed 12/10/15 Page 19 of 19
`
`sdavidson@dbjg.com
`
`Attorneys for Plaintiffs
`EMERSON ELECTRIC CO., FISHER-
`ROSEMOUNT SYSTEMS, INC. and
`ROSEMOUNT, INC.
`
`
`
`
`
`
`- 18 -
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`
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