Case 2:15-cv-03581-ES-JAD Document 1 Filed 05/27/15 Page 1 of 35 PageID: 1
`
`Ronald Abramson
`David G. Liston
`LEWIS BAACH pllc
`The Chrysler Building
`405 Lexington Avenue
`New York, NY 10174
`Tel: (212) 826-7001
`
`Attorneys for Plaintiff
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`
`
`Case No.: 2:15-cv-
`
`
`
`COMPLAINT FOR PATENT
`INFRINGEMENT AND
`DEMAND FOR JURY TRIAL
`
`
`
`WAG ACQUISITION, L.L.C.,
`
` Plaintiff,
`
`v.
`
`WEBPOWER, INC. d/b/a WP
`Associates; and
`
`DOES 1-20,
`
` Defendants.
`
`
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff WAG ACQUISITION, L.L.C., for its complaint against
`
`Defendants, alleges infringement of United States Patent Nos. 8,122,141,
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`8,327,011, 8,185,611, and 8,364,839 (the “Patents-in-Suit”). Defendants provide
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`live, interactive adult “webcam” programming on the Internet. Plaintiff alleges that
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`Defendants, operating without authority or license, have used Plaintiff’s patented
`
`streaming technology to conduct this business, thereby infringing Plaintiff’s
`
`patents. Plaintiff seeks appropriate compensation for Defendants’ infringement.
`
`
`
`Ronald Abramson
`David G. Liston
`LEWIS BAACH pllc
`The Chrysler Building
`405 Lexington Avenue
`New York, NY 10174
`Tel: (212) 826-7001
`
`Attorneys for Plaintiff
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`
`
`Case No.: 2:15-cv-
`
`
`
`COMPLAINT FOR PATENT
`INFRINGEMENT AND
`DEMAND FOR JURY TRIAL
`
`
`
`WAG ACQUISITION, L.L.C.,
`
` Plaintiff,
`
`v.
`
`WEBPOWER, INC. d/b/a WP
`Associates; and
`
`DOES 1-20,
`
` Defendants.
`
`
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff WAG ACQUISITION, L.L.C., for its complaint against
`
`Defendants, alleges infringement of United States Patent Nos. 8,122,141,
`
`8,327,011, 8,185,611, and 8,364,839 (the “Patents-in-Suit”). Defendants provide
`
`live, interactive adult “webcam” programming on the Internet. Plaintiff alleges that
`
`Defendants, operating without authority or license, have used Plaintiff’s patented
`
`streaming technology to conduct this business, thereby infringing Plaintiff’s
`
`patents. Plaintiff seeks appropriate compensation for Defendants’ infringement.
`
`
`
`Case 2:15-cv-03581-ES-JAD Document 1 Filed 05/27/15 Page 2 of 35 PageID: 2
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`
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`THE PARTIES
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`1.
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`Plaintiff WAG Acquisition, L.L.C. is a New Jersey limited liability
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`company with its principal place of business at 3 Gold Mine Road, Suite 104,
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`Flanders, New Jersey 07836. Plaintiff operates an Internet broadcasting business
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`based in New Jersey, under the trade name SurferNETWORK.
`
`2.
`
`On information and belief, Defendant WEBPOWER, INC.
`
`(“Webpower”) is a Florida corporation with its principal address at 7121 Fairway
`
`Drive, Suite 400, Palm Beach Gardens, Florida 33418; and a registered agent at
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`Corporation Service Company, 1201 Hays Street, Tallahassee, Florida 33201-
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`2525. On information and belief, Webpower sometimes operates under the name
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`WP Associates.
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`3.
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`On information and belief, Defendants DOE 1 – DOE 20 (the “Doe
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`Defendants”) are individuals or entities whose precise identities are unknown to
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`Plaintiff at this time, which operate in concert with and/or under the direction and
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`control of Defendant Webpower in connection with the conduct complained of
`
`herein.
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`JURISDICTION AND VENUE
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`4.
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`The Court has subject matter jurisdiction pursuant to 28 U.S.C.
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`§§ 1331 and 1338(a) because this action arises under the patent laws of the United
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`States, 35 U.S.C. §§ 1 et seq.
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`5.
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`Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b)-(c)
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`and 1400(b), in that, inter alia (as hereinafter alleged in detail), a substantial part of
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`the events or omissions giving rise to the claims herein occurred in New Jersey,
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`and in any case each Defendant is subject to the personal jurisdiction of this Court
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`with respect to the matters in dispute in this action.
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`PLAINTIFF’S BUSINESS AND DEVELOPMENTS
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`6.
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`Plaintiff, operating under the trade name SurferNETWORK, is in the
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`business of providing Internet broadcasting services for live and on-demand audio
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`and video program material. Plaintiff began this business in 1998 and has been one
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`of the leading providers of such services to the terrestrial radio stations and other
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`content providers that comprise its customer base.
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`7.
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`Early in developing its business, two of Plaintiff’s principals, William
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`A. Grywalski, (“Grywalski”) and Harry Emerson (“Emerson”), recognized a need
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`that existed in the field of Internet delivery of broadcast media due to the
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`shortcomings in then-current Internet streaming technologies. They observed that
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`long startup delays due to “buffering” and frequent program interruptions
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`(sometimes referred to as “jitter”) made the experience of trying to listen to or
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`view streaming Internet content frustrating to the end user, and therefore
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`impractical as a content delivery mechanism. They were interested in making the
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`Internet streaming experience more like radio or television, including the
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`immediacy of having the programming appear to start instantly on demand (e.g.,
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`turning on a radio or flipping channels), and continue playing once started without
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`random interruptions.
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`8.
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`Plaintiff engaged the assistance of a software design engineer, Harold
`
`Price (“Price”), to develop solutions for the shortcomings that Grywalski and
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`Emerson saw in the current technology, with respect to streaming media playback
`
`performance, as well as other technological issues concerning Internet delivery of
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`broadcast media. Price worked on several aspects of this matter for Plaintiff over
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`the period 1999-2001.
`
`9.
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`Price was aware of the then-current approach to streaming, which
`
`attempted to overcome streaming transmission delays and jitter by a variety of
`
`techniques, including, for example, establishing a content buffer of 20-seconds or
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`so in duration, on the receiving (user or “client”) end of the communication, within
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`the client’s media player or media player browser plugin. After the user selected
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`(e.g., clicked on) a stream, the player would start filling this buffer at the playback
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`rate and then start playing when the buffer was full. While this method did provide
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`some protection against interruptions for the duration of whatever content was
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`initially buffered, it entailed an undesirable startup delay for “buffering” and
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`provided no means for graceful recovery once the 20 seconds worth of content in
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`the buffer was consumed.
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`10. Price conceived of solutions to these problems. He built a prototype
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`that implemented one embodiment of those solutions, and he demonstrated that a
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`system according to his new design could overcome the problems put to him by
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`Grywalski and Emerson.
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`11. Plaintiff and its predecessors in interest filed a number of U.S. patent
`
`applications on these solutions, as enumerated below. To date, these applications
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`have resulted in a number of issued U.S. patents, including the Patents-in-Suit. All
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`of these patent applications were assigned to Plaintiff, or to a predecessor-in-
`
`interest of Plaintiff and reassigned to Plaintiff.
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`12. Plaintiff has been conducting an active, operating business ever since
`
`the developments described above and has actively practiced under the technology
`
`taught in the Patents-in-Suit from then to the present. Plaintiff has developed
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`commercial arrangements under which it streams content for numerous terrestrial
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`radio stations and content providers in New Jersey, regionally, nationally, and
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`internationally. It also provides a One-Click Royalty ReporterTM for radio stations
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`to report streaming media performance royalty information to SoundExchange (a
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`performing rights organization that collects royalties on the behalf of sound
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`recording copyright owners), among other services.
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`DEFENDANTS’ BUSINESS ACTIVITIES
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`13. The time period relevant to the patent infringement alleged herein (the
`
`“Period”) runs from at least as early as February 2, 2012, the date that the first of
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`the Patents-in-Suit issued from the United States Patent & Trademark Office, to the
`
`present. (Plaintiff further reserves the right to allege infringement of its earlier
`
`patents, and to allege infringement of its provisional patent rights under 35 U.S.C.
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`§ 154(d), as information developed in discovery in this case may warrant.) Thus,
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`all conduct of the Defendants during the Period is relevant to determining their
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`liability and financial responsibility for infringing the Patents-in-Suit. The
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`allegations of Defendants’ conduct herein should accordingly be understood
`
`generally to refer to conduct and courses of conduct occurring, continued, and/or
`
`repeated in whole or in part within the Period.
`
`A. Defendants’ Business Model
`
`14. Defendants operate and, during the relevant period, have operated, a
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`network of adult live interactive webcam performers and Internet sites, led by their
`
`flagship site, iFriends.net.
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`15. Defendant Webpower holds itself out as the proprietor of the
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`iFriends.net website, claiming ownership of the copyright in the site, ownership of
`
`the “iFriends” trademark, and named as the contracting party on the iFriends.com
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`privacy policy and its webcam model agreement. Defendant Webpower is also
`
`named as the owner of the iFriends.net Internet domain name, and the owner of the
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`Internet Protocol addresses from which the iFriends.net web site serves its content.
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`16. Webpower attracts business to its web sites by providing a “free” user
`
`registration. However, most services on the iFriends.net site, beyond initial
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`noninteractive viewing, are provided on a “pay to play” basis, through credits and
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`tokens purchased via credit card.
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`B. Defendants’ Internet Streaming Operations
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`17. Webpower’s accused web sites have used, and on information and
`
`belief, continue to use, at least one streaming media server situated within the
`
`United States, configured and operated in a manner that infringes one or more of
`
`the Patents-in-Suit, as hereinafter set forth. Webpower has used and continues to
`
`use Plaintiff’s patented technologies to achieve the high streaming performance on
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`mobile platforms required in order to be competitive in the market.
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`18. Defendants’ services on the Internet are provided by computers,
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`referred to as “servers.” Each such server is reachable over the Internet by its
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`“address” on the Internet, referred to as its Internet Protocol (IP) address. Every
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`device publicly accessible on the Internet has its own globally unique (i.e., non-
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`duplicated) IP address.
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`19.
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`Internet domain names and IP addresses are given out, generally in
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`“blocks” of multiple adjacent addresses, by a process that involves registration
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`with accredited registrars.
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`20. A given IP address will be assigned to a registrant at a listed business
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`address; use of the IP address is not tied to the location of the registrant’s business
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`address. The registrant can locate its servers anywhere it wishes, geographically,
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`and use the IP addresses it owns (or rents) to identify those servers on the Internet.
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`IP addresses are represented as a four-part string of numbers, in the format of four
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`numbers, each in the range 0-255, separated by dots – as in, for example,
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`192.22.245.2 – resembling a telephone number. To make the Internet addressing
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`system more user-friendly, the numeric IP addresses are often given names
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`(“domain names”), such as google.com or ebay.com, so that users can reach the
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`desired services by a memorable name, rather than a number (e.g.,
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`www.google.com as opposed to 74.125.228.80). An Internet mechanism called the
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`Domain Name Service (DNS) maps the domain names to the numeric IP addresses
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`of the machines that serve content for the domains, so that the requests directed to
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`domain names (e.g., google.com) will reach the proper numerical IP addresses (in
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`this example, 74.125.228.80), and thereby the proper servers. “Subdomains” may
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`also be assigned within individual domains, for example, www.google.com,
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`mail.google.com, voice.google.com, etc. Each subdomain represents a different
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`server reachable through the main domain (google.com), but mapped to a separate
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`IP address. (That is, the subdomain mail.google.com (aka “gmail”) maps to
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`74.125.228.246, as opposed to the 74.125.228.80 address for main google.com
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`search engine site.)
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`21. The web site www.iFriends.net serves the content for the primary web
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`page at the Webpower’s domain iFriends.net. The IP address associated with
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`www.iFriends.net (and iFriends.net itself) is 65.212.89.161, which is in the IP
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`address block 65.212.89.0-65.212.89.255 registered to WebPower, Inc. The
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`Internet Traceroute utility indicates that this server is physically located in the
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`United States.
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`22. A user of the iFriends.net web site can click on one of the many
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`images of available performers in order to view the selected performer’s live
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`webcam stream. The stream will then be served from one of a number of physical
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`servers operated in the U.S. by iFriends.net, using one of a number of available
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`protocols and streaming methods. Webpower’s selection of the server, protocol,
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`and method to serve the stream will depend on the type of viewing apparatus
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`(“Player”) being used by the user.
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`23. User playback devices for streaming media (“Players”) can include,
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`inter alia, desktop computer Internet browsers, Internet browsers on smartphones
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`and tablets, and dedicated media players and media player facilities on mobile,
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`desktop, and other platforms.
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`24.
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`In each case, the electronic request from the Player, to view streaming
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`content, is preceded by a “header” in the communications stream. Webpower’s
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`server infrastructure extracts identification information from these “headers,”
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`which it uses in order to identify the user’s Player, and then selects what it
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`determines is the best server, protocol, and delivery method suited to the identified
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`Player.
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`25. Where Webpower’s servers detects that the users’ Player is an
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`ordinary desktop web browser, the live stream will be served via the “RTMP”
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`protocol (Real Time Messaging Protocol) from an iFriends.net streaming server.
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`For at least some times during the Period, these streams were served in a manner
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`that directly infringed Plaintiff’s ’611 and ’839 patents as alleged in detail in
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`Counts V and VI below.
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`26. Where Webpower’s servers detect certain types of mobile Players
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`(e.g., iOS, Android 4.4 or higher), or certain browsers having corresponding
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`capabilities (e.g., Safari, mobile Chrome browser), the live stream will be served
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`via the “HTTP” protocol (Hypertext Transfer Protocol). These streams have been,
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`during the Period, and are served in a manner that directly infringes (and also
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`induces infringement of) Plaintiff’s ’141 and ’011 patents as alleged in Counts I -
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`IV below.
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`C. Webpower’s Contacts with New Jersey
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`27. The revenue derived by Webpower from its infringing activities
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`includes substantial amounts spent on Webpower web sites by New Jersey
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`residents.
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`28. Webpower has recruited a large number of webcam performers in the
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`U.S., Western and Eastern Europe, Asia, Africa, South America, and elsewhere.
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`Webpower claims to have more than 500,000 such performers.
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`29. Defendants’ worldwide retinue of performers includes numerous New
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`Jersey residents, who perform online over Defendants’ infringing services, from
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`New Jersey, using server facilities provided by Defendants. Browsing the
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`iFriends.net web site reflects the active participation of numerous New Jersey
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`performers on that site, some with “Jersey” within their user names (e.g.,
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`“JERSEY-GIRL” and “MRS-NEW-JERSEY”) and others whose descriptions
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`include New Jersey locations (e.g., “PORNSTAR-69” whose description is
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`“Chilling , Jersey Side” and “AMYYSATIVA” whose description includes the fact
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`that she is a “23 year old born and raised Jersey girl,”). The streams of each of
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`these performers originate from live performances in New Jersey and infringe one
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`or more of the Patents-in-Suit.
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`30. Webpower’s induced infringement as alleged herein also implicates
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`New Jersey, because for every New Jersey user of the infringing streams under
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`those allegations, the underlying direct infringement that Webpower both causes
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`and induces takes place in New Jersey. Every stream sent by Defendants from the
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`servers identified in paragraph 26 represents infringement by Webpower in
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`operating its servers, but in addition, each and every such stream also causes a
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`direct infringement by a consumer who uses an infringing Player and/or Player
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`Software to view the stream. As alleged below, Webpower both causes this
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`infringement directly under 35 U.S.C. § 271(a) and induces this infringement in
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`violation of 35 U.S.C. § 271(b). Because Webpower has a substantial volume of
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`users in New Jersey, and a substantial portion of those users receive their streams
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`from the servers identified in paragraph 26, Webpower accordingly causes a
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`substantial amount of such direct infringement to occur in New Jersey.
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`THE PATENTS-IN-SUIT
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`31. The Patents-in-Suit comprise the following United States Patents,
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`which were duly and legally issued on the dates indicated:
`
`Pat. No.
`
`Issued
`
`Title
`
`8,122,141 Feb. 21, 2012 STREAMING MEDIA
`BUFFERING SYSTEM
`
`Reference
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`’141 patent
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`8,327,011 Dec. 4, 2012 STREAMING MEDIA
`BUFFERING SYSTEM
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`8,185,611 May 22, 2012 STREAMING MEDIA
`DELIVERY SYSTEM
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`8,364,839
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`Jan. 29, 2013 STREAMING MEDIA
`DELIVERY SYSTEM
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`’011 patent
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`’611 patent
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`’839 patent
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`
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`32.
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` The Patents-in-Suit were developed in the course of Plaintiff’s
`
`business and were assigned by Price (the inventor) to Plaintiff’s predecessors in
`
`that business, which reassigned them to Plaintiff, the current operator of the
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`business. Plaintiff owns all rights to recover for past and ongoing infringement of
`
`the Patents-in-Suit.
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`33. The text of the claims of each of the Patents-in-Suit is incorporated
`
`herein by reference. Any descriptive matter contained herein that references said
`
`claims is provided for purposes of explanation and notice and does not limit the
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`scope of the claims.
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`Notice of the Patents-In-Suit and Infringement Thereof
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`34. Webpower was sent a letter on April 3, 2015 identifying the Patents-
`
`in-Suit and describing how Webpower’s system infringed certain claims of the
`
`Patents-in-Suit. Webpower was aware of the Patents-in-Suit and of their
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`infringement thereof at least as early as receipt of this letter.
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`35. On information and belief it has been widely known in the online
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`adult video industry since March 2014 that WAG has filed suits against online
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`adult video companies, and on that basis Webpower would have been aware of
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`WAG’s patents and Webpower’s infringement thereof prior to receipt of WAG’s
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`April 3, 2015 letter.
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`36. Further, all Defendants herein have notice of the ’611, ’839, ’141 and
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`’011 patents, and of their manner of infringement thereof, by reason of the filing of
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`this Complaint on May 15, 2015.
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`37. The earliest date by which Defendants had notice of the Patents-in-
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`Suit and of their infringement thereof is herein referred to (separately as to each
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`Defendant and each patent, to the extent if any that different Defendants may have
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`received such notice on different dates, or notice with respect to different patents
`
`on different dates) as the “Notice Date.”
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`COUNT I: DIRECT INFRINGEMENT OF THE ’141 PATENT
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`38. Plaintiff repeats and realleges the allegations of paragraphs 1- 37
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`above as if fully set forth at length herein.
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`39.
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`35 U.S.C. § 271(a) provides in pertinent part as follows:
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`“(a) . . . whoever without authority makes, uses, offers to sell, or sells
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`any patented invention, within the United States or imports into the
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`United States any patented invention during the term of the patent
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`therefor, infringes the patent.”
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`40. Defendants, acting individually as well as in their respective roles as
`
`alleged above, have directly infringed and are still directly infringing at least
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`claims 1-8 and 28, 10-17, 19 and 21-23, and 24-27 of the ’141 patent by making,
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`selling, offering to sell, performing, and using apparatus and methods that embody
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`one or more of said claims, by conduct including without limitation the acts
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`alleged in the paragraphs that follow.
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`41. The patent claims that Defendants are accused of directly infringing in
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`this Count I and in Counts III, V, and VI are each of a nature that, in each case,
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`may be infringed by the acts of a single actor. Plaintiff alleges that one or more of
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`the Defendants commit such direct infringement as a result of their operating one
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`or more of the servers referenced in paragraphs 25 and 26. The alleged direct
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`infringement is carried out in some circumstances by one or more Defendants
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`acting completely on their own, and in other circumstances in whole or in part as a
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`result of one or more Defendants directing and controlling (and thereby causing)
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`the infringing conduct of others. These circumstances include (i) where one or
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`more Defendants (or employees, agents, or contractors under their direction and
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`control) performs all method steps or makes or uses apparatus (i.e., a server) or an
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`article of manufacture (i.e., recorded software) covered by a patent claim, or (ii)
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`where one or more Defendants exercises direction and control causing another
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`person (e.g., a user) to use apparatus (i.e., a Player) or an article of manufacture
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`(i.e., recorded Player Software) covered by a patent claim. In either scenario, the
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`entire direct infringement is attributable to the acts of one single Defendant (or at
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`most one group of related Defendants acting under control of a “mastermind,” i.e.,
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`Webpower), responsible for operating the relevant server
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`42. As alleged above, Defendants provide their services through a large
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`Internet server infrastructure, at least a material portion of which is located in the
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`United States. Defendants’ direct infringement of the ’141 patent results from the
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`operation of the servers, referenced in paragraph 26 above, which serve the content
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`for Defendants’ accused infringing web sites. Such infringement results because,
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`inter alia, claims 10-17, 19, and 21-23 of the ’141 patent read on those servers and
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`their software, and Defendants make and use those servers and their software.
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`43. More particularly, Defendants’ servers referenced in paragraph 26
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`include servers that use the same “divide and conquer” approach described in the
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`’141 patent to deliver streaming data. Defendants’ servers, inter alia, assign serial
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`identifiers to sequential media data elements comprising the stream. The servers
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`receive, from a user system, requests for these elements specifying the identifiers.
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`The servers then serve the elements responsive to the requests, at a rate more rapid
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`than the rate at which said streaming media is played back by a user. This
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`mechanism provides for a fast start of streaming playback, and at the same time
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`allows the Player to moderate media flow by “pulling” data as needed, based on its
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`own rate of consuming content. Defendants’ servers meet each and every
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`limitation of claims 10-17 of the ’141 patent and are therefore infringing. By
`
`operating such servers, Defendants, by their actions alone, directly infringe claims
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`10-17 of the ’141 patent.
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`44. Claims 19 and 21-23 of the ’141 patent concern recorded computer
`
`software that runs servers such as Defendants’ servers described in paragraph 26.
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`Case 2:15-cv-03581-ES-JAD Document 1 Filed 05/27/15 Page 16 of 35 PageID: 16
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`The software that operates Defendants’ servers meets each and every limitation set
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`forth in claims 19 and 21-23 of the ’141 patent and is therefore infringing. By
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`operating said servers, and thereby using such computer programs, Defendants, by
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`their actions alone, directly infringe claims 19 and 21-23 of the ’141 patent. On
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`information and belief, Defendants also “make” such software and directly infringe
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`for that reason also.
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`45. Claims 1-8 and 28 of the ’141 patent concern (i) providing a server
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`essentially as described in paragraph 26, as well as (ii) providing software (“Player
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`Software”) to implement specified functionality of a Player. Defendants provide
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`servers that meet the first set of requirements recited in these claims. Through such
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`servers, in response to requests identified by the server as having come from
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`certain types of Players, Defendants direct and control the Players (as further
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`alleged below) to provide Player Software in accordance with the second set of
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`requirements recited in these claims. The combination of Defendants’ actions in
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`operating the servers and in Defendants’ directing and controlling Players to
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`provide Player Software make Defendants responsible for all claimed method steps
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`and therefore for directly infringing claims 1-8 and 28 of the ’141 patent.
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`46. More particularly, Defendants, through their servers, direct and
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`control users’ Players as alleged in paragraph 45 by, including without limitation,
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`the following acts. Defendants’ servers read encoded information in network
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`packets received from Players and identify the type of Player that sent the packet.
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`When Defendants identify a Player as compatible with Defendants’ video stream,
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`Case 2:15-cv-03581-ES-JAD Document 1 Filed 05/27/15 Page 17 of 35 PageID: 17
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`Defendants’ servers send such Players electronic instructions that cause the
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`Players, without any user intervention, to load and execute the Player Software
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`(thereby putting the Players and Player Software into service), so that the Player
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`may then request and receive the serialized streaming transmissions from
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`Defendants’ servers. Defendants’ servers also send electronic data to the Players
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`containing the serial identifiers used by the Players to request streaming media
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`elements, thereby further controlling the operation of the Players.
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`47. Further in the alternative, and without limiting any of the foregoing
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`allegations, Defendants also directly infringe claims 1-8 and 28 of the ’141 patent
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`under 35 U.S.C. § 271(a) by Defendants’ acts combined with those of their users,
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`with knowledge that each step of said patented methods will be performed through
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`the combined action of Defendants and the user.
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`48. Claims 24-27 of the ’141 patent concern Player Software. Defendants
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`directly infringe claims 24-27 of the ’141 patent by (i) using (as alleged below) the
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`Player Software claimed in said claims, which Plaintiff alleges meets each and
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`every limitation set forth in said claims and is infringing, and (ii) by directing and
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`controlling (as further alleged below) users’ use of such infringing Player
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`Software.
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`49. Defendants use infringing Player Software and thereby directly
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`infringe claims 24-27 of the ’141 patent by putting the Player Software into service
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`by the acts alleged in paragraph 45 and making beneficial use of the Player
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`Software by using the Player Software as part of a delivery mechanism whereby
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`- 17 -
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`Case 2:15-cv-03581-ES-JAD Document 1 Filed 05/27/15 Page 18 of 35 PageID: 18
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`Defendants deliver their streaming video content to end users through the users’
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`Players.
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`50.
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`In the alternative, and without limiting the foregoing, Defendants also
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`directly infringe claims 24-27 of the ’141 patent by directing and controlling users’
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`Players to use infringing Player Software in the manner alleged in paragraph 45.
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`51. Plaintiff is entitled to recover all past, present, and ongoing damages it
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`has sustained as a result of Defendants’ direct infringement of the ’141 patent.
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`52. Pursuant to 35 U.S.C. § 284, Plaintiff is entitled to not less than a
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`reasonable royalty for the use made by the Defendants under the ’141 patent, in an
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`amount subject to proof at trial, together with interest and costs as fixed by the
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`Court.
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`COUNT II: INDUCED INFRINGEMENT OF THE ’141 PATENT
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`53. Plaintiff repeats and realleges the allegations of paragraphs 1-52
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`above as if fully set forth at length herein.
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`54.
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`35 U.S.C. § 271(b) provides:
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`“Whoever actively induces infringement of a patent shall be liable as
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`an infringer.”
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`55.
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`In addition and in the alternative to Plaintiff’s allegations of direct
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`infringement of claims 24-27 of the ’141 patent, and without limiting anything
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`alleged in connection therewith, Plaintiff alleges that Defendants, by conduct more
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`particularly alleged in the paragraphs that follow, also actively induce
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`infringement, by users, of claims 24-27 of the ’141 patent.
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`Case 2:15-cv-03581-ES-JAD Document 1 Filed 05/27/15 Page 19 of 35 PageID: 19
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`56. The relevant “direct infringement” for purposes of this Count II and
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`Count IV is direct infringement by consumers (users), who infringe by using
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`Player Software (Count II) and/or Players (Count IV). Plaintiff further alleges that
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`it requires only one user to “use” the Player Software, and to “use” Players, as the
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`same are claimed in the corresponding claims of the Patents-in-Suit (i.e., claims
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`24-27 of the ’141 patent and claims 1-4 of the ’011 patent).
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`57. Defendants’ induced infringement as alleged in this Count II and in
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`Counts IV results from numerous different actions by one or more Defendants that
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`each induce users to directly infringe. The basis for liability of the respective
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`Defendants herein for such indirect infringement is substantially as alleged in
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`paragraph 41. Further, because knowledge of Plaintiff’s patents and intent to
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`induce infringement results, inter alia, from matters that have been brought to each
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`Defendant’s attention by the various forms of notice alleged in paragraphs 34-37,
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`Plaintiff alleges that each Defendant is equally chargeable with such knowledge
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`and intent.
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`58. The Player Software meets each and every limitation of claims 24-27
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`of the ’141 patent, and is therefore infringing. When users use the infringing Player
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`Software, each such user, considering only his or her acts alone, puts the Player
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`Software, as claimed, into service, and obtains its beneficial use, thereby directly
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`infringing claims 24-27 of the ’141 patent.
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`59. Defendants actively induce such direct infringement by users in a
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`number of ways, including without limitation the following acts. Defendants,
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`- 19 -
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`Case 2:15-cv-03581-ES-JAD Document 1 Filed 05/27/15 Page 20 of 35 PageID: 20
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`through their servers, as aforesaid, provide to users video streams that are specially
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`adapted to be viewed on Players running compatible Player Software, thereby
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`inducing users to use such Players and such software. Defendants’ servers provide
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`such streams when they identify that the user is using compatible Player Software.
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`These streams provide a superior viewing experience that further induces the user
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`to use Players running such Player Software when they use Defendants’ service.
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`Defendants’ servers send electronic instructions causing the Players to load and
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`execute compatible Player Software, and electronic data containing the serial
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`identifiers for the Players to use to request sequential media data elements.
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`60. Defendants, through their servers, also provide a “mobile site” at
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`mobile.ifriends.net, to further induce users to use infringing Players and Player
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`Software. Defendants’ web pages served by their servers for ifrends.net contain
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`links and text encouraging users with compatible Players to use the iFriends
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`Mobile Site.
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`61. The users of compatible Players are thereby induced by Defendants to
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`directly infringe claims 24-27 of the ’141 patent (e.g., by using Player Software
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`within the scope of said claims, whereby said users directly infringe such claims as
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`aforesaid).
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`62. The ’141 patent is presumed valid pursuant to 35 U.S.C. § 282, and
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`therefore presumed to contain an enabling disclosure of the matter claimed therein
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`(pursuant to 35 U.S.C. § 112), understandable to any person of ordinary skill in the
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`art. On information and belief, Defendants have personnel of such a skill level in
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`- 20 -
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