Case 2:22-md-03034-TGB ECF No. 109, PageID.8646 Filed 12/16/22 Page 1 of 44
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHICAN
`SOUTHERN DIVISION
`
`IN RE NEO WIRELESS, LLC,
`
`PATENT LITIG.
`
`NEO WIRELESS, LLC,
`
`Plaintiff,
`
`v.
`
`TOYOTA MOTOR CORPORATION,
`TOYOTA MOTOR NORTH AMERICA,
`INC., TOYOTA MOTOR SALES, U.S.A.,
`INC., & TOYOTA MOTOR ENGINEERING
`& MANUFACTURING NORTH
`AMERICA, INC., & TOYOTA MOTOR
`CREDIT CORPORATION
`
`Defendants.
`
`NO. 2:22-MD-03034-TGB
`
`HON. TERRENCE G. BERG
`
`NO. 2:22-CV-11406-TGB
`
`HON. TERRENCE G. BERG
`
`JURY TRIAL DEMANDED
`
`DEFENDANTS’ FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO
`PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Defendants Toyota Motor Corporation (“TMC”), Toyota Motor North America, Inc.
`
`(“TMNA”), Toyota Motor Sales, U.S.A., Inc. (“TMS”), Toyota Motor Engineering &
`
`Manufacturing North America, Inc. (“TEMA”), and Toyota Motor Credit Corporation (“TMCC”)
`
`(collectively, “Toyota”) hereby submit this First Amended Answer and assert defenses to the First
`
`Amended Complaint for Patent Infringement (“First Amended Complaint”) filed by Plaintiff Neo
`
`Wireless, LLC on June 24, 2022.
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`1
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`THE PARTIES
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`1.
`
`Toyota lacks sufficient knowledge and information to admit or deny the allegations
`
`in Paragraph 1 of the First Amended Complaint and therefore denies them.
`
`2.
`
`Toyota Motor Corporation admits that it is a corporation organized and existing
`
`under the laws of Japan, with a place of business at 1 Toyota-Cho, Toyota City, Aichi Prefecture,
`
`471-8571, Japan. Toyota denies the remaining allegations of Paragraph 2 of the First Amended
`
`Complaint.
`
`3.
`
`Toyota Motor North America, Inc. admits that it is a corporation organized and
`
`existing under the laws of California with its principal place of business at 6565 Headquarters
`
`Drive, Plano, Texas, 75024. TMNA admits that its registered agent is CT Corporation System, at
`
`1999 Bryan Street, Suite 900, Dallas, Texas, 75201. Toyota denies the remaining allegations of
`
`Paragraph 3 of the First Amended Complaint.
`
`4.
`
`Toyota Motor Sales, U.S.A., Inc. admits that it is a corporation organized under the
`
`laws of California with its principal place of business at 6565 Headquarters Drive, Plano, Texas
`
`75024. TMS admits that its registered agent is CT Corporation System, at 1999 Bryan Street, Suite
`
`900, Dallas, Texas, 75201. Toyota denies the remaining allegations of Paragraph 4 of the First
`
`Amended Complaint.
`
`5.
`
`Toyota Motor Engineering & Manufacturing North America, Inc. admits that it is
`
`a corporation organized and existing under the laws of the State of Kentucky with its principal
`
`place of business at 6565 Headquarters Drive, Plano, Texas 75024. TEMA admits that its
`
`registered agent is CT Corporation System, at 1999 Bryan Street, Suite 900, Dallas, Texas, 75201.
`
`Toyota denies the remaining allegations of Paragraph 5 of the First Amended Complaint.
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`6.
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`Toyota Motor Credit Corporation admits that it is a corporation organized and
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`existing under the laws of the State of California with its principal place of business at 6565
`
`Headquarters Drive, Plano, Texas 75024. TMCC admits that its registered agent is CT Corporation
`
`System, at 1999 Bryan Street, Suite 900, Dallas, Texas, 75201. Toyota denies the remaining
`
`allegations of Paragraph 6 of the First Amended Complaint.
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`JURISDICTION AND VENUE
`
`7.
`
`8.
`
`9.
`
`Admitted.
`
`Admitted.
`
`Paragraph 9 contains legal conclusions to which no response is required. To the
`
`extent a response is required, for the purposes of this action only, Toyota does not dispute that
`
`venue is proper in this District. Toyota denies all remaining allegations in Paragraph 9.
`
`10.
`
`Paragraph 10 contains legal conclusions to which no response is required. To the
`
`extent a response is required, for the purposes of this action only, Toyota does not dispute that
`
`venue is proper in this District. Toyota denies all remaining allegations in Paragraph 10.
`
`11.
`
`Paragraph 11 contains legal conclusions to which no response is required. To the
`
`extent a response is required, for the purposes of this action only, Toyota does not contest personal
`
`jurisdiction. Toyota denies all remaining allegations in Paragraph 11.
`
`12.
`
`Paragraph 12 contains legal conclusions to which no response is required. To the
`
`extent a response is required, for the purposes of this action only, Toyota does not contest personal
`
`jurisdiction. Toyota denies all remaining allegations in Paragraph 12.
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`13.
`
`Paragraph 13 contains legal conclusions to which no response is required. To the
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`extent a response is required, for the purposes of this action only, Toyota does not contest personal
`
`jurisdiction. Toyota denies all remaining allegations in Paragraph 13.
`
`14.
`
`Paragraph 14 contains legal conclusions to which no response is required. To the
`
`extent a response is required, for the purposes of this action only, Toyota does not contest personal
`
`jurisdiction. Toyota denies all remaining allegations in Paragraph 14.
`
`15.
`
`Paragraph 15 contains legal conclusions to which no response is required. To the
`
`extent a response is required, for the purposes of this action only, Toyota does not contest personal
`
`jurisdiction. Toyota denies all remaining allegations in Paragraph 15.
`
`16.
`
`Paragraph 16 contains legal conclusions to which no response is required. To the
`
`extent a response is required, for the purposes of this action only, Toyota does not contest personal
`
`jurisdiction. Toyota denies all remaining allegations in Paragraph 16.
`
`17.
`
`Paragraph 17 contains legal conclusions to which no response is required. To the
`
`extent a response is required, for the purposes of this action only, Toyota does not contest personal
`
`jurisdiction. Toyota denies all remaining allegations in Paragraph 17.
`
`18.
`
`Paragraph 18 contains legal conclusions to which no response is required. To the
`
`extent a response is required, for the purposes of this action only, Toyota does not contest personal
`
`jurisdiction. Toyota denies all remaining allegations in Paragraph 18.
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`THE ASSERTED PATENTS
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`The ’366 Patent
`
`19.
`
`Toyota admits that U.S. Patent No. 8,467,366 (“the ’366 patent”) was issued on
`
`June 18, 2013 and is titled “Methods and Apparatus for Random Access in Multi-Carrier
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`Communication Systems.” Toyota admits that Exhibit 1 to the First Amended Complaint appears
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`to be a copy of the ’366 patent. Toyota denies all remaining allegations in Paragraph 19.
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`20.
`
`Toyota lacks sufficient knowledge and information to admit or deny the allegations
`
`in Paragraph 20 of the First Amended Complaint and therefore denies them.
`
`21.
`
`Denied.
`
`The ’908 Patent
`
`22.
`
`Toyota admits that U.S. Patent No. 10,833,908 (“the ’908 patent”) was issued on
`
`April 17, 2018 and is titled “Channel Probing Signal for a Broadband Communication System.”
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`Toyota admits that Exhibit 2 to the First Amended Complaint appears to be a copy of the ’908
`
`patent. Toyota denies all remaining allegations in Paragraph 22.
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`23.
`
`Toyota lacks sufficient knowledge and information to admit or deny the allegations
`
`in Paragraph 23 of the First Amended Complaint and therefore denies them.
`
`24.
`
`Denied.
`
`The ’941 Patent
`
`25.
`
`Toyota admits that U.S. Patent No. 10,075,941 (“the ’941 patent”) was issued on
`
`September 11, 2018 and is titled “Methods and Apparatus for Multi-Carrier Communication
`
`Systems with Adaptive Transmission and Feedback.” Toyota admits that Exhibit 3 to the First
`
`Amended Complaint appears to be a copy of the ’941 patent. Toyota denies all remaining
`
`allegations in Paragraph 25.
`
`26.
`
`Toyota lacks sufficient knowledge and information to admit or deny the allegations
`
`in Paragraph 26 of the First Amended Complaint and therefore denies them.
`
`27.
`
`Denied.
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`The ’450 Patent
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`28.
`
`Toyota admits that U.S. Patent No. 10,447,450 (“the ’450 patent”) was issued on
`
`October 15, 2019 and is titled “Method and System for Multi-Carrier Communication with
`
`Reduced Overhead.” Toyota admits that Exhibit 4 to the First Amended Complaint appears to be
`
`a copy of the ’450 patent. Toyota denies all remaining allegations in Paragraph 28.
`
`29.
`
`Toyota lacks sufficient knowledge and information to admit or deny the
`
`allegations in Paragraph 29 of the First Amended Complaint and therefore denies them.
`
`30.
`
`Denied.
`
`The ’512 Patent
`
`31.
`
`Toyota admits that U.S. Patent No. 10,965,512 (“the ’512 patent”) was issued on
`
`March 30, 2021 and is titled “Method and Apparatus Using Cell-Specific and Common Pilot
`
`Subcarriers in Multi-Carrier, Multi Cell Wireless Communication Networks.” Toyota admits that
`
`Exhibit 5 to the First Amended Complaint appears to be a copy of the ’512 patent. Toyota denies
`
`all remaining allegations in Paragraph 31.
`
`32.
`
`Toyota lacks sufficient knowledge and information to admit or deny the allegations
`
`in Paragraph 32 of the First Amended Complaint and therefore denies them.
`
`33.
`
`Denied.
`
`The ’302 Patent
`
`34.
`
`Toyota admits that U.S. Patent No. 10,771,302 (“the ’302 patent”) was issued on
`
`September 8, 2020 and is titled “Channel Proving Signal for a Broadband Communication
`
`System.” Toyota admits that Exhibit 6 to the First Amended Complaint appears to be a copy of the
`
`’302 patent. Toyota denies all remaining allegations in Paragraph 34.
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`35.
`
`Toyota lacks sufficient knowledge and information to admit or deny the allegations
`
`in Paragraph 35 of the First Amended Complaint and therefore denies them.
`
`36.
`
`37.
`
`Denied.
`
`Denied.
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`FACTUAL ALLEGATIONS
`
`38.
`
`Toyota lacks sufficient knowledge and information to admit or deny the allegations
`
`in Paragraph 38 of the First Amended Complaint and therefore denies them.
`
`39.
`
`Toyota lacks sufficient knowledge and information to admit or deny the allegations
`
`in Paragraph 39 of the First Amended Complaint and therefore denies them.
`
`40.
`
` Toyota lacks sufficient knowledge and information to admit or deny the allegations
`
`in Paragraph 40 of the First Amended Complaint and therefore denies them.
`
`41.
`
`Toyota lacks sufficient knowledge and information to admit or deny the allegations
`
`in Paragraph 41 of the First Amended Complaint and therefore denies them.
`
`42.
`
`43.
`
`Denied.
`
`Toyota lacks sufficient knowledge and information to admit or deny the allegations
`
`in Paragraph 43 of the First Amended Complaint and therefore denies them.
`
`44.
`
`Toyota lacks sufficient knowledge and information to admit or deny the allegations
`
`in Paragraph 44 of the First Amended Complaint and therefore denies them.
`
`45.
`
`Toyota lacks sufficient knowledge and information to admit or deny the allegations
`
`in Paragraph 45 of the First Amended Complaint and therefore denies them.
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`46.
`
`Toyota admits that certain Toyota-branded and Lexus-branded vehicles have 4G
`
`LTE capabilities. Toyota lacks sufficient knowledge and information to admit or deny the
`
`remaining allegations in Paragraph 46 of the First Amended Complaint and therefore denies them.
`
`47.
`
`Toyota admits that certain Toyota-branded and Lexus-branded vehicles have 4G
`
`LTE connectivity and its Connected Services. Toyota denies the remaining allegations in
`
`Paragraph 47 of the First Amended Complaint.
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`48.
`
`Toyota admits that the Toyota App is compatible with certain Toyota-branded
`
`vehicles and that available features vary by vehicle and subscription type. Toyota denies the
`
`remaining allegations in Paragraph 48 of the First Amended Complaint.
`
`49.
`
`50.
`
`Denied.
`
`Toyota admits that certain Toyota-branded and Lexus-branded vehicles have 4G
`
`LTE connectivity and its Connected Services. Toyota denies the remaining allegations in
`
`Paragraph 50 of the First Amended Complaint.
`
`51.
`
`Toyota admits that certain Toyota-branded and Lexus-branded vehicles have 4G
`
`LTE connectivity and its Connected Services. Toyota denies the remaining allegations in
`
`Paragraph 51 of the First Amended Complaint.
`
`52.
`
`Toyota admits that certain Toyota-branded and Lexus-branded vehicles have 4G
`
`LTE connectivity and its Connected Services. Toyota denies the remaining allegations in
`
`Paragraph 52 of the First Amended Complaint.
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`53.
`
`Toyota lacks sufficient knowledge and information to admit or deny the allegations
`
`in Paragraph 53 of the First Amended Complaint and therefore denies them.
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`Case 2:22-md-03034-TGB ECF No. 109, PageID.8654 Filed 12/16/22 Page 9 of 44
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`54.
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`Toyota denies that Neo Wireless provided Toyota with actual notice of Neo
`
`Wireless’s allegation of Toyota’s infringement prior to the filing of this lawsuit. Toyota lacks
`
`sufficient knowledge and information to admit or deny the remaining allegations in Paragraph 54
`
`of the First Amended Complaint and therefore denies them.
`
`55.
`
`Denied.
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`TOYOTA’S [ALLEGED] ACTS OF PATENT INFRINGEMENT
`
`56.
`
`Toyota incorporates its responses to Paragraphs 1 through 55 by reference as if fully
`
`set forth herein.
`
`57.
`
`58.
`
`59.
`
`60.
`
`61.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
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`Toyota admits that TMC owns and operates the Toyota Motor Corporation Official
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`Global Website Toyota denies the remaining allegations in Paragraph 61 of the First Amended
`
`Complaint.
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`62.
`
`Toyota admits that in 2017 it created the “One Toyota” initiative. Toyota denies the
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`remaining allegations in Paragraph 62 of the First Amended Complaint.
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`63.
`
`Toyota admits that in 2017 it created the “One Toyota” initiative. Toyota denies the
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`remaining allegations in Paragraph 63 of the First Amended Complaint.
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`64.
`
`65.
`
`66.
`
`Denied.
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`Denied.
`
`Denied.
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`67.
`
`68.
`
`69.
`
`70.
`
`Denied.
`
`Denied.
`
`Denied.
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`On information and belief, Toyota admits that TMNA received a letter addressed
`
`to Mr. Fujimoto with an attached table of patents from Neo Wireless on or about December 1,
`
`2021. Toyota denies the remaining allegations in Paragraph 70 of the First Amended Complaint.
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`71.
`
`Toyota admits that TMS was served with the Complaint in this action and that
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`TMCC waived service of the Amended Complaint. Toyota denies that any entity other than
`
`TMNA can be deemed to have received the November 2021 letter “by virtue of the One Toyota
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`initiative.” Toyota denies the remaining allegations in Paragraph 71 of the First Amended
`
`Complaint.
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`72.
`
`73.
`
`74.
`
`Denied.
`
`Denied.
`
`Denied.
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`COUNT ONE: [ALLEGED] INFRINGEMENT OF THE ’366 PATENT
`
`75.
`
`Toyota incorporates its responses to the allegations of all of the foregoing
`
`paragraphs as if fully set forth herein.
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`76.
`
`77.
`
`Denied.
`
`Toyota admits that certain Toyota-branded and Lexus-branded vehicles have 4G
`
`LTE connectivity and its Connected Services. Toyota denies the remaining allegations in
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`Paragraph 77 of the First Amended Complaint.
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`78.
`
`Denied.
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`Case 2:22-md-03034-TGB ECF No. 109, PageID.8656 Filed 12/16/22 Page 11 of 44
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`79.
`
`80.
`
`81.
`
`Denied.
`
`Denied.
`
`Denied.
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`COUNT TWO: [ALLEGED] INFRINGEMENT OF THE ’908 PATENT
`
`82.
`
`Toyota incorporates its responses to the allegations of all of the foregoing
`
`paragraphs as if fully set forth herein.
`
`83.
`
`84.
`
`Denied.
`
`Toyota admits that certain Toyota-branded and Lexus-branded vehicles have 4G
`
`LTE connectivity and its Connected Services. Toyota denies the remaining allegations in
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`Paragraph 84 of the First Amended Complaint.
`
`85.
`
`86.
`
`87.
`
`88.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
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`COUNT THREE: [ALLEGED] INFRINGEMENT OF THE ’941 PATENT
`
`89.
`
`Toyota incorporates its responses to the allegations of all of the foregoing
`
`paragraphs as if fully set forth herein.
`
`90.
`
`91.
`
`Denied.
`
`Toyota admits that certain Toyota-branded and Lexus-branded vehicles have 4G
`
`LTE connectivity and its Connected Services. Toyota denies the remaining allegations in
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`Paragraph 91 of the First Amended Complaint.
`
`92.
`
`Denied.
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`93.
`
`94.
`
`95.
`
`Denied.
`
`Denied.
`
`Denied.
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`COUNT FOUR: [ALLEGED] INFRINGEMENT OF THE ’450 PATENT
`
`96.
`
`Toyota incorporates its responses to the allegations of all of the foregoing
`
`paragraphs as if fully set forth herein.
`
`97.
`
`98.
`
`Denied.
`
`Toyota admits that certain Toyota-branded and Lexus-branded vehicles have 4G
`
`LTE connectivity and its Connected Services. Toyota denies the remaining allegations in
`
`Paragraph 98 of the First Amended Complaint.
`
`99.
`
`Denied.
`
`100. Denied.
`
`101. Denied.
`
`102. Denied.
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`COUNT FIVE: [ALLEGED] INFRINGEMENT OF THE ’512 PATENT
`
`103.
`
`Toyota incorporates its responses to the allegations of all of the foregoing
`
`paragraphs as if fully set forth herein.
`
`104. Denied.
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`105.
`
`Toyota admits that certain Toyota-branded and Lexus-branded vehicles have 4G
`
`LTE connectivity and its Connected Services. Toyota denies the remaining allegations in
`
`Paragraph 105 of the First Amended Complaint.
`
`106. Denied.
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`107. Denied.
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`108. Denied.
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`109. Denied.
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`COUNT SIX: [ALLEGED] INFRINGEMENT OF THE ’302 PATENT
`
`110.
`
`Toyota incorporates its responses to the allegations of all of the foregoing
`
`paragraphs as if fully set forth herein.
`
`111. Denied.
`
`112.
`
`Toyota admits that certain Toyota-branded and Lexus-branded vehicles have 4G
`
`LTE connectivity and its Connected Services. Toyota denies the remaining allegations in
`
`Paragraph 112 of the First Amended Complaint.
`
`113. Denied.
`
`114. Denied.
`
`115. Denied.
`
`116. Denied.
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`RESPONSE TO PLAINTIFF’S PRAYER FOR RELIEF
`
`Toyota denies the allegations contained in Plaintiff’s Prayer for Relief and further denies
`
`that Plaintiff is entitled to any relief whatsoever, including any of the relief sought in paragraphs
`
`a-g of Plaintiff’s Prayer for Relief. Plaintiff’s Prayer for Relief should, therefore, be denied in its
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`entirety and with prejudice, and Plaintiff should take nothing.
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`TOYOTA’S DEFENSES
`
`1.
`
`Toyota incorporates by reference its responses to Plaintiff’s allegations supra at
`
`Paragraphs 1 through 116 in the foregoing factual background.
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`2.
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`Upon information and belief, and subject to its responses above, Toyota asserts
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`the following defenses in response to the allegations of the First Amended Complaint, without
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`admitting or acknowledging that Toyota bears the burden of proof as to any of them or that any
`
`must be pleaded as defenses. Regardless of how such defenses are listed herein, Toyota
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`undertakes the burden of proof only as to those defenses that are deemed affirmative defenses as
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`a matter of law. Toyota expressly reserves the right to amend or raise additional defenses
`
`pursuant to any docket control order or additional information becomes available through further
`
`investigation and discovery.
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`FACTUAL BACKGROUND FOR DEFENSES
`
`I.
`
`The Named Inventors
`
`3.
`
`Upon information and belief, the named inventors of the Patents-In-Suit (Xiaodong
`
`Li, Titus Lo, Ruifeng Wang, Kemin Li, and Haiming Huang) were formerly employed by AT&T
`
`(or a subsidiary of AT&T) and/or Broadstorm Telecommunications, Inc. (“Broadstorm”).
`
`4.
`
`As discussed further below, upon information and belief, one or more of the named
`
`inventors incorporated into the Patents-In-Suit information misappropriated from Project Angel,
`
`AT&T, and/or Broadstorm.
`
`5.
`
`Xiaodong Li (also known as Xiaodong (Alex) Li) is listed as a co-inventor of each
`
`Asserted Patent. Upon information and belief, in 1996, Xiaodong Li was employed by a
`
`subsidiary of AT&T in the Wireless Systems Research Department. See Ex. 1 at 1257.1 As
`
`discussed further below, by 2000, Xiaodong Li was a founding employee of Broadstorm. In
`
`1 Xiaodong Li was employed by Lucent Technologies from 1998 to 2000 in the Wireless Technology Research
`Department. Lucent Technologies was formerly owned by AT&T. See https://www.britannica.com/topic/Bell-
`Laboratories (Nov. 18, 2019).
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`2002-2003, while employed by Broadstorm, or shortly thereafter, Xiaodong Li and another
`
`named inventor, Titus Lo, founded Walbell Technologies, Inc. (“Walbell”), a predecessor-in-
`
`interest to Neo Wireless.
`
`6.
`
`Titus Lo (also known as Titus Kwok-Yeung Lo) is listed as a co-inventor of each
`
`Asserted Patent. Upon information and belief, Titus Lo was employed by an AT&T subsidiary
`
`from 1997 to 2001 “developing OFDMA wireless system.”2 In 2002-2003, Titus Lo co-founded
`
`Walbell, a predecessor-in-interest to Neo Wireless along with Xiaodong Li.
`
`7.
`
`Ruifeng Wang is listed as a co-inventor of the ’450 patent. Ruifeng Wang was
`
`employed by an AT&T subsidiary from at least July 2000 to January 2003, working on “[s]ystem
`
`design and technology innovation for broadband wireless systems (AT&T Angel Project).” See
`
`Ex. 2 (Ruifeng Wang LinkedIn Profile). Upon information and belief, Ruifeng Wang worked at a
`
`predecessor-in-interest to Neo Wireless from at least June 2004 to August 2008.
`
`8.
`
`Kemin Li is listed as a co-inventor of the asserted ’941 patent, ’302 patent, ’908
`
`patent, ’512 patent, and the ’366 patent (five of the six Patents-In-Suit). Kemin Li worked as a
`
`system engineer at Broadstorm from at least August 2000 to June 2003 and then a predecessor-in-
`
`interest to Neo Wireless from January 2004 to July 2005. See Ex. 3 (Kemin Li LinkedIn Profile).
`
`Haiming Huang is listed as a co-inventor of each Asserted Patent. Upon information and belief,
`
`Haiming Huang worked at Broadstorm from at least December 2000 to June 2003 and began
`
`working for a predecessor-in-interest to Neo Wireless in 2003.
`
`II.
`
`AT&T’s Project Angel
`
`9.
`
`Upon information and belief, McCaw Cellular Communications, Inc. (“McCaw”)
`
`2 See “Seattle Communications (COM-19) Society Chapter,” https://labs.ece.uw.edu/ieee-
`comm/event_sep_30_2010.htm (last accessed Dec. 13, 2022).
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`Case 2:22-md-03034-TGB ECF No. 109, PageID.8661 Filed 12/16/22 Page 16 of 44
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`began developing a wireless system project called “Project Angel” in the 1990s.3 AT&T purchased
`
`McCaw in 1994, including Project Angel. In the mid to late 1990s, AT&T further developed
`
`Project Angel—a wireless system incorporating orthogonal frequency-division multiple access
`
`(“OFDMA”) technology that used a base station and remote units to communicate data through
`
`the wireless system.4
`
`10.
`
`During AT&T’s work on Project Angel, AT&T created a number of confidential
`
`documents, data, and source code related to Project Angel and OFDMA wireless communication
`
`systems.5 AT&T took measures to ensure the confidentiality of Project Angel and to prevent its
`
`disclosure, including, upon information and belief, marking related documents, data, and source
`
`code “proprietary” and/or “confidential,” covering windows in buildings with metalized film to
`
`prevent non-authorized personnel from electronically eavesdropping on AT&T personnel
`
`associated with Project Angel, requiring employees working on Project Angel to sign a non-
`
`disclosure agreement (“NDA”).6 AT&T also applied for and obtained several patents related to
`
`Project Angel and OFDMA technology.7 AT&T offered Project Angel for sale as early as August
`
`1999.8
`
`11.
`
`Upon information and belief, several named inventors of the Patents-In-Suit,
`
`including at least Xiaodong Li, Titus Lo, and Ruifeng Wang, were employed by AT&T or one of
`
`its subsidiaries, worked on Project Angel, and/or had access to AT&T’s wireless technology
`
`3 See https://www.rcrwireless.com/19970303/carriers/mccaws-project-angel-given-life-by-at-t-wireless-services
`(last accessed August 15, 2022).
`4 See “First Amended Answer, Defenses & Counterclaims of Cellco Partnership d/b/a Verizon Wireless,” Adaptix,
`Inc. v. Apple, Inc., Civ. No. 5:13-cv-01776-PSG, Docket No. 229-2 at 5-6 (N.D. Cal. Jun. 4, 2014).
`5 Id. at 6.
`6 Id.
`7 Id.
`8 See “Defendants’ Opposition to Adaptix, Inc.’s Motion for Partial Summary Judgment Under 35 U.S.C. § 102(f),”
`Adaptix, Inc. v. Apple, Inc., Civ. No. 5:13-cv-01776-PSG, Docket No. 394 at 10 (N.D. Cal. Dec. 5, 2014).
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`Case 2:22-md-03034-TGB ECF No. 109, PageID.8662 Filed 12/16/22 Page 17 of 44
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`research and documentation.
`
`III.
`
`Broadstorm
`
`12.
`
`Upon information and belief, named inventor Xiaodong Li was employed by or
`
`interned with AT&T, and worked on Project Angel and/or OFDMA wireless communication
`
`systems. In the early 2000s, Xiaodong Li co-founded Broadstorm and later formed Walbell, a
`
`predecessor-in-interest to Neo Wireless, in 2002-2003.
`
`13.
`
`Upon information and belief, Xiaodong Li “proposed to strategically hire key
`
`Project Angel engineers from AT&T.” See Order Denying Summary Judgment, Adaptix, Inc. v.
`
`Apple, Inc. et al, Civ. No. 5:13-cv-01776-PSG, Dkt. No. 404 at 4 (N.D. Cal. Jan. 15, 2015).
`
`14.
`
`Other patents listing Xiaodong Li as a co-inventor have been litigated in federal
`
`cases. Fact discovery in these cases established a record that Broadstorm had “pretty much . . .
`
`everything . . . on [AT&T’s] engineering side” and “several AT&T technical documents related to
`
`Project Angel.” Id.
`
`15.
`
`Upon information and belief, several named inventors of the Patents-In-Suit,
`
`including at least Xiaodong Li and two additional named inventors (Kemin Li and Haiming
`
`Huang), were employed by Broadstorm and had access to or knowledge of AT&T’s wireless
`
`technology research and documentation, including Project Angel.
`
`IV. Neo Wireless
`
`16.
`
`Upon information and belief, Plaintiff Neo Wireless has previously operated under
`
`several names and/or identifiers, including without limitation Walbell Technologies, Inc.
`
`(“Walbell”), Waltical Solutions, Inc. (“Waltical”), CFIP NCF Holdings LLC (“CFIP), and
`
`Neocific, Inc. (“Neocific”).
`
`17.
`
`Upon information and belief, named inventors Xiaodong Li and Titus Lo founded
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`Case 2:22-md-03034-TGB ECF No. 109, PageID.8663 Filed 12/16/22 Page 18 of 44
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`Walbell in 2002-2003. Upon information and belief, Xiaodong Li, Kemin Li, and Haiming Huang
`
`possessed and continued to use AT&T documentation, information, and research that Broadstorm
`
`improperly obtained from former AT&T employees.
`
`18.
`
`Upon information and belief, Titus Lo and Ruifeng Wang possessed and continued
`
`to use AT&T documentation, information, and research from their former employment at AT&T.
`
`19.
`
`Upon information and belief, one or more of the named inventors incorporated into
`
`the Patents-In-Suit misappropriated information from AT&T’s wireless technology research,
`
`including Project Angel.
`
`V. Failure to Disclose
`
`20.
`
`Upon information and belief, the claimed inventions of the Patents-In-Suit were
`
`developed fully or in part while one or more of the named inventors was employed by AT&T
`
`and/or were developed using information illegally gained from former AT&T employees.
`
`21.
`
`Upon information and belief, Neo Wireless and/or its predecessors-in-interest did
`
`not identify AT&T, as an owner-in-interest, or Project Angel in connection with prosecution of
`
`the Patents-In-Suit.
`
`22.
`
`Upon information and belief, each named inventor failed to disclose AT&T, as an
`
`owner-in-interest, Project Angel, and other related wireless research they misappropriated from
`
`AT&T and Project Angel to the United States Patent and Trademark Office (“USPTO”) while
`
`prosecuting the Patents-In-Suit.
`
`23.
`
`Upon information and belief, one or more of the named inventors, including at least
`
`Xiaodong Li, Titus Lo, and Ruifeng Wang, were aware that Project Angel and AT&T’s wireless
`
`communication research was material to the patentability of the claims of the Patents-In-Suit.
`
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`Case 2:22-md-03034-TGB ECF No. 109, PageID.8664 Filed 12/16/22 Page 19 of 44
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`24.
`
`The ’366 patent. Upon information and belief, Xiaodong Li, Titus Lo, Haiming
`
`Huang, and Kemin Li signed an assignment agreement on April 8, 2005 warranting that “Assignors
`
`own the Rights, and that the Rights are unencumbered” to US05/08169, a related predecessor
`
`application of the ’366 patent.
`
`25.
`
`Upon information and belief, at least Xiaodong Li and Titus Lo knew that materials
`
`filed in the ’366 patent were derived wholly or in part from AT&T’s Project Angel and/or AT&T’s
`
`proprietary and confidential materials without permission and that their ownership and right to
`
`assign such ideas, information, or materials were absent or questionable. Upon information and
`
`belief, Xiaodong Li and Titus Lo were aware of this at the time of the April 8, 2005 assignment
`
`and no later than December 5, 2014.9
`
`26.
`
`Upon information and belief, Neo Wireless and/or one of its predecessors-in-
`
`interest recorded the April 8, 2005 assignment on December 12, 2019 as Reel/Frame 015258/0162.
`
`This document purported to convey ownership to Waltical, who then purported to convey
`
`ownership to Neo Wireless through a series of other assignments. Recordation of this document
`
`was an intentional act. Upon information and belief, this act intended to deceive the public of the
`
`true ownership of the ’366 patent.
`
`27.
`
`The ’941 patent. Upon information and belief, Xiaodong Li, Titus Lo, Haiming
`
`Huang, and Kemin Li signed an assignment agreement on April 8, 2005 warranting that “Assignors
`
`own the Rights, and that the Rights are unencumbered” to US05/04601, a related application of
`
`9 See, e.g., Amended Answer and Counterclaims of ZTE (USA) Inc., Adaptix, Inc. v. ZTE Corporation, Civ. No.
`6:13-cv-00443, Doc. No. 111 at 15 (E.D. Tex. Dec. 5, 2014) (asserting that patents naming Dr. Li as co-inventor
`were substantially derived from AT&T which was not disclosed to the USPTO); see also Order Denying Summary
`Judgment, Adaptix, Inc. v. Apple, Inc. et al, Civ. No. 5:13-cv-01776-PSG, Doc. No. 404 at 4 (N.D. Cal. Jan. 15,
`2015) (“Along with Xiandong Li [sic], another one of Adaptix’s co-founders, Liu proposed to strategically hire key
`Project Angel engineers from AT&T.”) (emphasis added).
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`Case 2:22-md-03034-TGB ECF No. 109, PageID.8665 Filed 12/16/22 Page 20 of 44
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`the ’941 patent.
`
`28.
`
`Upon information and belief, at least Xiaodong Li and Titus Lo knew that materials
`
`filed in the ’941 patent were derived wholly or in part from AT&T’s Project Angel and/or AT&T’s
`
`proprietary and confidential materials without permission and that their ownership and right to
`
`assign such ideas, information, or materials was absent or questionable. Upon information and
`
`belief, Xiaodong Li and Titus Lo were aware of this at the time of the April 8, 2005 assignment
`
`and no later than December 5, 2014.10
`
`29.
`
`Upon information and belief, Neo Wireless and/or one of its predecessors-in-
`
`interest recorded the April 8, 2005 assignment on December 12, 2019 as Reel/Frame 051261/0382.
`
`This document purported to convey ownership to Waltical, who then purported to convey
`
`ownership to Neo Wireless through a series of other assignments. Recordation of this document
`
`was an intentional act. Upon information and belief, this act intended to deceive the public of the
`
`true ownership of the ’941 patent.
`
`30.
`
`The ’450 patent. Upon information and belief, Xiaodong Li, Titus Lo, Haiming
`
`Huang, and Ruifeng Wang signed an assignment agreement on October 2, 2007 warranting that
`
`“Assignors own the Rights, and that the Rights are unencumbered” to PCT/US06/38149, a related
`
`predecessor application of the ’450 patent.
`
`31.
`
`Upon information and belief, at least Xiaodong Li, Titus Lo, and Ruifeng Wang
`
`knew that materials filed in the ’450 patent were derived whol