Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 1 of 21
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`CALDARELLI HEJMANOWSKI & PAGE LLP
`William J. Caldarelli (SBN #149573)
`Ben West (SBN #251018)
`12340 El Camino Real, Suite 430
`San Diego, CA 92130
`Telephone: (858) 720-8080
`Facsimile: (858) 720-6680
`wjc@chplawfirm.com
`dbw@chplawfirm.com
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`FABIANO LAW FIRM, P.C.
`Michael D. Fabiano (SBN #167058)
`12526 High Bluff Drive, Suite 300
`San Diego, CA 92130
`Telephone: (619) 742-9631
`mdfabiano@fabianolawfirm.com
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`OSBORNE LAW LLC
`John W. Osborne (Appointed Pro Hac Vice)
`33 Habitat Lane
`Cortlandt Manor, NY 10567
`Telephone: (914) 714-5936
`josborne@osborneipl.com
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`WATTS LAW OFFICES
`Ethan M. Watts (SBN #234441)
`12340 El Camino Real, Suite 430
`San Diego, CA 92130
`Telephone: (858) 509-0808
`Facsimile: (619) 878-5784
`emw@ewattslaw.com
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`Attorneys for Plaintiff Ameranth, Inc.
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`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 2 of 21
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`UNITED STATES DISTRICT COURT
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`AMERANTH, INC.,
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`ORBITZ, LLC,
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`Plaintiff,
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`v.
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`SOUTHERN DISTRICT OF CALIFORNIA
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`Civil Action No. 12-cv-1644 DMS-WVG
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`Consolidated with
`11-cv-01810-DMS-WVG
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`FIRST AMENDED COMPLAINT FOR
`PATENT INFRINGEMENT AGAINST
`ORBITZ, LLC
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`DEMAND FOR JURY TRIAL
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`Defendant.
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`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 3 of 21
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`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff Ameranth, Inc. (“Ameranth”), for its First Amended Complaint
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`against defendant Orbitz, LLC (“Orbitz”), avers as follows:
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`PARTIES
`1. Plaintiff Ameranth, Inc. is a Delaware corporation having a principal
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`place of business at 5820 Oberlin Drive, Suite 202, San Diego, California 92121.
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`Ameranth develops, manufactures and sells, inter alia, hospitality industry,
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`entertainment, restaurant and food service information technology solutions
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`under the trademarks 21st Century Communications™, and 21st Century
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`Restaurant™, among others, comprising the synchronization and integration of
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`hospitality information and hospitality software applications between fixed,
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`wireless and/or internet applications, including but not limited to computer
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`servers, web servers, databases, affinity/social networking systems, desktop
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`computers, laptops, “smart” phones and other wireless handheld computing
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`devices.
`2. Defendant Orbitz is, on information and belief, a Delaware limited
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`liability corporation having a principal place of business and headquarters in
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`Chicago, Illinois. On information and belief, Orbitz makes, uses, offers for sale
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`or license and/or sells or licenses hotel and lodging, property management system
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`(PMS) and other hospitality
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`information-technology products, software,
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`components and/or systems within this Judicial District, including the Orbitz
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`Reservation System as defined herein.
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`JURISDICTION AND VENUE
`3. This is an action for patent infringement arising under the Patent Laws of
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`the United States, 35 U.S.C. §§ 271, 281-285.
`4. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331
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`and 1338(a).
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`1
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 4 of 21
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`5. On information and belief, Defendant engages in (a) the offer for sale or
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`license and sale or license of hospitality, reservations, ordering, products and/or
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`components in the United States, including this Judicial District, including
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`services, products, software, and components, comprising wireless and internet
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`POS and/or hospitality aspects; (b) the installation and maintenance of said
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`services, products, software, components and/or systems in hospitality industry,
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`hotel and lodging, reservations, and/or entertainment information technology
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`systems in the United States, including this Judicial District; and/or (c) the use of
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`hospitality industry, hotel and lodging, reservation, and/or entertainment
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`information technology systems comprising said services, products, software,
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`components and/or systems in the United States, including this Judicial District.
`6. This Court has personal jurisdiction over Defendant because Defendant
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`commits acts of patent infringement in this Judicial District including, inter alia,
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`making, using, offering for sale or license, and/or selling or licensing infringing
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`services, products, software, components and/or systems in this Judicial District.
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`Additionally, Orbitz has already appeared in this action and submitted to the
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`jurisdiction of the Court. Orbitz has continued to engage in and perform such
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`acts of infringement since the filing of the original complaint in this matter
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`accusing Orbitz of infringement of the Ameranth patents at issue herein.
`7. Venue is proper in this Judicial District pursuant to 28 U.S.C. §§ 1391(b)
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`and (c) and 1400(b).
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`BACKGROUND
`8. Ameranth was established in 1996 to develop and provide its 21st
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`Century Communications™ innovative information technology solutions for the
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`hospitality industry (inclusive of, e.g., restaurants, hotels, casinos, nightclubs,
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`cruise ships and other entertainment and sports venues). Ameranth has been
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`widely recognized as a technology leader in the provision of wireless and
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`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 5 of 21
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`internet-based systems and services to, inter alia, restaurants, hotels, casinos,
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`cruise ships and entertainment and sports venues. Ameranth’s award winning
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`inventions enable, in relevant part, generation and synchronization of menus,
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`including but not limited to restaurant menus, event tickets, reservations and
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`other products across fixed, wireless and/or internet platforms as well as
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`synchronization of hospitality information and hospitality software applications
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`across fixed, wireless and internet platforms, including but not limited to,
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`computer servers, web servers, databases, affinity/social networking systems,
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`desktop computers, laptops, “smart” phones and other wireless handheld
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`computing devices.
`9. Ameranth began development of the inventions leading to the patents in
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`this patent family, including the patents-in-suit, in the late Summer of 1998, at a
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`time when the then-available wireless and internet hospitality offerings were
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`extremely limited in functionality, were not synchronized and did not provide an
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`integrated system-wide solution to the pervasive ordering, reservations, affinity
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`program and information management needs of the hospitality industry.
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`Ameranth uniquely recognized the actual problems that needed to be resolved in
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`order to meet those needs, and thereafter conceived and developed its
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`breakthrough inventions and products to provide systemic and comprehensive
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`solutions directed to optimally meeting these industry needs. Ameranth has
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`expended considerable effort and resources in inventing, developing and
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`marketing its inventions and protecting its rights therein.
`10. Ameranth’s pioneering inventions have been widely adopted and are
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`thus now essential to the modern wireless hospitality enterprise of the 21st
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`Century. Ameranth’s solutions have been adopted, licensed and/or deployed by
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`numerous entities across the hospitality industry.
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`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 6 of 21
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`11. The adoption of Ameranth’s technology by industry leaders and the wide
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`acclaim received by Ameranth for its technological innovations are just some of
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`the many confirmations of the breakthrough aspects of Ameranth’s inventions.
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`Ameranth has received twelve different technology awards (three with “end
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`customer” partners) and has been widely recognized as a hospitality
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`wireless/internet technology leader by almost all major national and hospitality
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`print publications, e.g., The Wall Street Journal, New York Times, USA Today
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`and many others. Ameranth was personally nominated by Bill Gates, the
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`Founder of Microsoft, for the prestigious Computerworld Honors Award that
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`Ameranth
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`received
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`in
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`2001
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`for
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`its
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`breakthrough
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`synchronized
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`reservations/ticketing system with the Improv Comedy Theatres. In his
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`nomination, Mr. Gates described Ameranth as “one of the leading pioneers of
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`information technology for the betterment of mankind.” This prestigious award
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`was based on Ameranth’s innovative synchronization of wireless/web/fixed
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`hospitality software technology. Subsequently, the United States Patent and
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`Trademark Office granted Ameranth a number of currently-issued patents, two of
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`which are the basis for this lawsuit. Ameranth has issued press releases
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`announcing these patent grants on business wires, on its web sites and at
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`numerous trade shows since the first of the presently-asserted patents issued in
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`2002. A number of companies have licensed patents and technology from
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`Ameranth, recognizing and confirming the value of Ameranth’s innovations. At
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`all relevant times, Ameranth marked its own products with the numbers of the
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`Ameranth patents then issued, thereby providing companies, competitors and
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`participants in the hospitality industry with notice of Ameranth’s patents.
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`Furthermore, companies that license Ameranth’s products have marked their
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`products with Ameranth’s patent numbers, thereby also providing notice of
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`Ameranth’s patents.
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`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 7 of 21
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`RELATED CASES PREVIOUSLY FILED
`12. The Ameranth patents asserted herein, U.S. Patent No. 6,384,850 (the
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`“’850 patent”), U.S. Patent No. 6,871,325 (the “’325 patent”), and U.S. Patent
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`No. 8,146,077 (the “’077 patent”), are all patents in Ameranth’s “Information
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`Management and Synchronous Communications” patent family.
`13. Ameranth is also currently asserting claims of these same patents in
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`separate lawsuits, against other defendants, that are already pending in this Court.
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`The first-filed lawsuit asserts claims of the ‘850 and ‘325 patents and is entitled
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`Ameranth v. Pizza Hut, Inc. et al., Case No. 3:11-cv-01810-BEN-WVG.
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`Lawsuits subsequently filed by Ameranth in this Court, asserting claims of the
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`‘077 patent, include Case Nos. 3:12-cv-00729-BEN-WVG; 3:12-cv-00731-BEN-
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`WVG; 3:12-cv-00732-BEN-WVG; 3:12-cv-00733-BEN-WVG; 3:12-cv-00737-
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`BEN-WVG; 3:12-cv-00738-JLS-NLS (settled); 3:12-cv-00739-BEN-WVG and
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`3:12-cv-00742-BEN-WVG. Other lawsuits filed by Ameranth in this Court
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`asserting claims of the ‘850, ‘325, and ‘077 patents are Case No. 3:12-cv-00858-
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`BEN-WVG; 3:12-cv-1201-JLS-NLS (settled): 3:12-cv-01651-BEN-WVG; 3:12-
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`cv-01629-BEN-WVG; 3:12-cv-01630-BEN-WVG; 3:12-cv-01631-BEN-WVG;
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`3:12-cv-01634-BEN-WVG; 3:12-cv-01654-BEN-WVG; 3:12-cv-01636-BEN-
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`WVG; 3:12-cv-01653-BEN-WVG; 3:12-cv-01642-BEN-WVG; 3:12-cv-01643-
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`BEN-WVG; 3:12-cv-01646-BEN-WVG 3:12-cv-01647-JLS-NLS (settled); 3:12-
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`cv-01648-BEN-WVG; 3:12-cv-01640-BEN-WVG; 3:12-cv-01650-BEN-WVG;
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`3:12-cv-1649-BEN-WVG; 3:12-cv-01652-BEN-WVG; 3:12-cv-01633-BEN-
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`WVG; 3:12-cv-01627-BEN-WVG; 3:12-cv-01655-BEN-WVG; 3:12-cv-01656-
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`BEN-WVG; 3:12-cv-01659-BEN-WVG (settled); 3:13-cv-00350-BEN-WVG;
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`3:13-cv-00352-BEN-WVG; 3:13-cv-00353-BEN-WVG; 3:13-cv-0836-BEN-
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`WVG (settled) and 3:13-cv-01072-BEN-WVG. All of the above still-pending
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`cases have been consolidated for pre-trial through claim construction except for
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`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 8 of 21
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`3:13-cv-00350-BEN-WVG; 3:13-cv-00352-BEN-WVG; 3:13-cv-00353-BEN-
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`WVG; and 3:13-cv-01072-BEN-WVG. These include lawsuits against business
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`partners of Defendant, such as hotel companies with whom Defendant does
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`business.
`14. The original complaint in this matter against Defendant was filed in this
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`Court on July 2, 2012, and subsequently served upon Orbitz. At least since that
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`time, Orbitz has had direct knowledge of Ameranth’s patents and that Orbitz’s
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`online and mobile reservations system infringes those patents as alleged therein.
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`Nonetheless, Defendant has continued, and is continuing, to make, use, offer for
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`sale or license and/or sell or license infringing systems, products, and/or services
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`in the United States without authority or license from Ameranth and to engage in
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`acts of infringement as set forth herein.
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`COUNT I
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`Patent Infringement (U.S. Pat. No. 6,384,850)
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`(35 U.S.C. § 271)
`15. Plaintiff reiterates and incorporates the allegations set forth in paragraphs
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`1-14 above as if fully set forth herein.
`16. On May 7, 2002, United States Patent No. 6,384,850 entitled
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`“Information Management and Synchronous Communications System with Menu
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`Generation” (“the ‘850 patent”) (a true and correct copy of which is attached
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`hereto as Exhibit A) was duly and legally issued by the United States Patent &
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`Trademark Office.
`17. Plaintiff Ameranth is the lawful owner by assignment of all right, title
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`and interest in and to the ‘850 patent.
`18. On information and belief, Defendant directly infringes and continues to
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`directly infringe one or more valid and enforceable claims of the ‘850 patent, in
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`violation of 35 U.S.C. § 271(a), by making, using, offering for sale or license
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`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 9 of 21
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`and/or selling or licensing infringing systems, products, and/or services in the
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`United States without authority or license from Ameranth, including but not
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`limited to the Orbitz Reservation system/product/service, which includes, inter
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`alia, hotel/lodging-reservation and property management system
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`(PMS)
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`integration, online and mobile hotel/lodging reservations, integration with e-mail
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`and affinity programs and social media applications such as Facebook, Twitter,
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`Groupon, and YouTube, and/or other third-party web-based applications, and
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`other hospitality aspects (“Orbitz Reservation System”).
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` Ameranth has
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`previously served Orbitz with infringement contentions in this action further
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`describing the details of Orbitz’s infringement of Ameranth’s patents. Those
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`infringement contentions are attached hereto as Exhibit D and incorporated
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`herein by reference.
`19. On
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`information and belief,
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`the Orbitz Reservation System, as
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`deployed and/or used at or from one or more locations by Orbitz, its
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`agents, distributors, partners, affiliates,
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`licensees, and/or
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`their customers,
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`infringes one or more valid and enforceable claims of the ‘850 patent, by, inter
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`alia, doing at least one of the following: (a) Generating and transmitting menus in
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`a system including a central processing unit, a data storage device, a computer
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`operating system containing a graphical user interface, one or more displayable
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`main menus, modifier menus, and sub-modifier menus, and application software
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`for generating a second menu and transmitting it to a wireless handheld
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`computing device or a Web page; and/or (b) Enabling reservations and other
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`hospitality functions via iPhone, Android, and other internet-enabled wireless
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`handheld computing devices as well as via Web pages, storing hospitality
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`information and data on at least one central database, on at least one wireless
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`handheld computing device, and on at least one Web server and Web page, and
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`synchronizing applications and data, including but not limited to applications and
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`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 10 of 21
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`data relating to ordering, between at least one central database, wireless handheld
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`computing devices, and at least one Web server and Web page; utilizing an
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`interface that provides a single point of entry that allows the synchronization of at
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`least one wireless handheld computing device and at least one Web page with at
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`least one central database; allowing information to be entered via Web pages,
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`transmitted over the internet, and automatically communicated to at least one
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`central database and to wireless handheld computing devices; allowing
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`information to be entered via wireless handheld computing devices, transmitted
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`over the internet, and automatically communicated to at least one central database
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`and to Web pages.
`20. On information and belief, defendant Orbitz has indirectly infringed and
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`continues to indirectly infringe one or more valid and enforceable claims of the
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`‘850 patent, in violation of 35 U.S.C. § 271(b), by actively, knowingly, and
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`intentionally inducing direct infringement by other persons.
`21. On information and belief, customers of Orbitz, including consumers and
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`hotel operators, use the Orbitz Reservation System in a manner that infringes the
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`Ameranth patents. Orbitz provides instruction and direction regarding the use of
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`the Orbitz Reservation System, and advertises, promotes, and encourages the use
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`of the Orbitz Reservation System in a manner understood and intended by Orbitz
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`to infringe Ameranth’s patents. Defendant provides such instruction, direction
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`and encouragement regarding infringing use of the Orbitz Reservations System
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`on its webpages, in advertising, in user videos, in offerings on mobile “app
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`stores,” in press releases and in statements in industry news articles, as
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`demonstrated in the infringement contentions attached hereto as Exhibit D and in
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`the references cited in the appendix thereto.
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`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 11 of 21
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`22. On information and belief, the Orbitz Reservation System infringes one
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`or more valid and enforceable claims of the ‘850 patent for the reasons set forth
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`hereinabove.
`23. At least since the filing and service of the original complaint against
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`Orbitz in this matter, Orbitz has had knowledge of the ‘850 patent, and knew or
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`should have known that its continued offering and deployment of the Orbitz
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`Reservation System, and its continued support of consumers, hotel operators, and
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`other users of this system/product/service, would induce direct infringement by
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`those users. Additionally, Orbitz intended that its actions would induce direct
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`infringement of Ameranth’s patents by those users.
`24. On information and belief, Defendant has indirectly infringed and
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`continues to indirectly infringe one or more valid and enforceable claims of the
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`‘850 patent, in violation of 35 U.S.C. § 271(c).
`25. By distributing, selling, offering, offering to sell or license and/or selling
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`or licensing the Orbitz Reservation System, which is a specialized software
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`system designed for a specific use that infringes Ameranth’s patents, Orbitz
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`provides non-staple articles of commerce to others, including consumers and
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`hotel operators for use in infringing systems, products, and/or services.
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`Additionally, Orbitz provides instruction and direction regarding the use of the
`
`Orbitz Reservation System, and advertises, promotes, and encourages the use of
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`the Orbitz Reservation System in a manner understood and intended by Orbitz to
`
`infringe Ameranth’s patents, as described above. Users of the Orbitz Reservation
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`System, including but not limited to consumers and hotel operators, directly
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`infringe one or more valid and enforceable claims of the ‘850 patent for the
`
`reasons set forth hereinabove.
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`9
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 12 of 21
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`26. On information and belief, the Orbitz Reservation System infringes one
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`or more valid and enforceable claims of the ‘850 patent, for the reasons set forth
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`hereinabove.
`27. On information and belief, Orbitz has had knowledge of the ‘850 patent
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`at least since the filing and service of the original complaint in this matter against
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`Orbitz, including knowledge that the Orbitz Reservation System, which is a
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`specialized hospitality software system and a non-staple article of commerce, has
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`been used as a material part of the claimed invention of the ‘850 patent, and that
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`there are no substantial non-infringing uses for the Orbitz Reservation System.
`28. The aforesaid infringing activity of defendant Orbitz has directly and
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`proximately caused damage to plaintiff Ameranth, including loss of profits from
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`sales or licensing it would have made but for the infringements. Unless enjoined,
`
`the aforesaid infringing activity will continue and cause irreparable injury to
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`Ameranth for which there is no adequate remedy at law.
`
`COUNT II
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`Patent Infringement (U.S. Pat. No. 6,871,325)
`
`(35 U.S.C. § 271)
`29. Plaintiff reiterates and reincorporates the allegations set forth in
`
`paragraphs 1-28 above as if fully set forth herein.
`30. On March 22, 2005, United States Patent No. 6,871,325 entitled
`
`“Information Management and Synchronous Communications System with Menu
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`Generation” (“the ‘325 patent”) (a true and correct copy of which is attached
`
`hereto as Exhibit B) was duly and legally issued by the United States Patent &
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`Trademark Office.
`31. Plaintiff Ameranth is the lawful owner by assignment of all right, title
`
`and interest in and to the ‘325 patent.
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`10
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 13 of 21
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`32. On information and belief, Defendant directly infringes and continues to
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`directly infringe one or more valid and enforceable claims of the ‘325 patent, in
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`violation of 35 U.S.C. § 271(a), by making, using, offering for sale or license
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`and/or selling or licensing infringing systems, products, and/or services in the
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`United States without authority or license from Ameranth, including but not
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`limited to the Orbitz Reservation System. Ameranth has previously served
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`Orbitz with infringement contentions in this action further describing the details
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`of Orbitz’s infringement of Ameranth’s patents. Those infringement contentions
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`are attached hereto as Exhibit D and incorporated herein by reference.
`33. On
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`information and belief,
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`the Orbitz Reservation System, as
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`deployed and/or used at or from one or more locations by Orbitz, its agents,
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`distributors, partners, affiliates, licensees, and/or their customers, infringes one or
`
`more valid and enforceable claims of the ‘325 patent, by, inter alia, doing at least
`
`one of the following: (a) Generating and transmitting menus in a system
`
`including a central processing unit, a data storage device, a computer operating
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`system containing a graphical user interface, one or more displayable main
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`menus, modifier menus, and sub-modifier menus, and application software for
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`generating a second menu and transmitting it to a wireless handheld computing
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`device or a Web page; and/or (b) Enabling reservations and other hospitality
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`functions via iPhone, Android, and other internet-enabled wireless handheld
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`computing devices as well as via Web pages, storing hospitality information and
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`data on at least one central database, on at least one wireless handheld computing
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`device, and on at least one Web server and Web page, and synchronizing
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`applications and data, including but not limited to applications and data relating
`
`to orders, between at least one central database, wireless handheld computing
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`devices, and at least one Web server and Web page; and sending alerts,
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`11
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 14 of 21
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`confirmations, and other information regarding orders to various wireless mobile
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`devices.
`34. On information and belief, Defendant has indirectly infringed and
`
`continues to indirectly infringe one or more valid and enforceable claims of the
`
`‘325 patent, in violation of 35 U.S.C. § 271(b), by actively, knowingly, and
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`intentionally inducing direct infringement by other persons.
`35. On information and belief, customers of Orbitz, including consumers and
`
`hotel operators, use the Orbitz Reservation System in a manner that infringes
`
`upon one or more valid and enforceable claims of the ‘325 patent. Orbitz
`
`provides instruction and direction regarding the use of the Orbitz Reservation
`
`System and advertises, promotes, and encourages the use of the Orbitz
`
`Reservation System in a manner understood and intended by Orbitz to infringe
`
`Ameranth’s patents.
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` Orbitz provides such
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`instruction, direction and
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`encouragement regarding infringing use of the Orbitz Reservation System on its
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`webpages, in advertising, in user videos, in offerings on mobile “app stores,” in
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`press releases and in statements in industry news articles, as demonstrated in the
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`infringement contentions attached hereto as Exhibit D and in the references cited
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`in the appendix thereto.
`36. On information and belief, Defendant actively induces others to infringe
`
`the ‘325 patent in violation of 35 U.S.C. §271(b), by knowingly encouraging,
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`aiding and abetting customers of Orbitz, including consumers and hotel
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`operators, to use the infringing Orbitz Reservation System in the United States
`
`without authority or license from Ameranth in a manner understood and intended
`
`by Orbitz to infringe Ameranth’s patents.
`37. On information and belief, Defendant contributorily infringes and
`
`continues to contributorily infringe one or more valid and enforceable claims of
`
`the ‘325 patent, in violation of 35 U.S.C. § 271(c), by offering to sell and/or
`12
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 15 of 21
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`selling components of systems on which claims of the ‘325 patent read,
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`constituting a material part of the invention, knowing that the components were
`
`especially adapted for use in systems which infringe claims of the ‘325 patent.
`38. By distributing, selling, offering, offering to sell or license and/or selling
`
`or licensing the Orbitz Reservation System, which is a specialized software
`
`system designed for a particular use that infringes Ameranth’s patents, Defendant
`
`provides non-staple articles of commerce to others for use in infringing systems,
`
`products, and/or services. Additionally, Orbitz provides instruction and direction
`
`regarding the use of the Orbitz Reservation System and advertises, promotes, and
`
`encourages the use of the Orbitz Reservation System in a manner understood and
`
`intended by Defendant to infringe Ameranth’s patents, as described above. Users
`
`of the Orbitz Reservation System, including consumers and hotel operators,
`
`directly infringe one or more valid and enforceable claims of the ‘325 patent, for
`
`the reasons set forth hereinabove.
`39. On information and belief, the Orbitz Reservation System infringes one
`
`or more valid and enforceable claims of the ‘325 patent, for the reasons set forth
`
`hereinabove.
`40. On information and belief, Orbitz has had knowledge of the ‘325 patent
`
`at least since the filing and service of the original complaint in this matter upon
`
`Orbitz, including knowledge that the Orbitz Reservation System, which is a
`
`specialized software system and a non-staple article of commerce, has been used
`
`as a material part of the claimed invention of the ‘325 patent, and that there are
`
`no substantial non-infringing uses for the Orbitz Reservation System.
`41. The aforesaid infringing activity of defendant Orbitz has directly and
`
`proximately caused damage to plaintiff Ameranth, including loss of profits from
`
`sales or licensing it would have made but for the infringements. Unless enjoined,
`
`13
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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`Case 3:12-cv-01644-DMS-WVG Document 37 Filed 09/30/13 Page 16 of 21
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`the aforesaid infringing activity will continue and cause irreparable injury to
`
`Ameranth for which there is no adequate remedy at law.
`
`COUNT III
`
`Patent Infringement (U.S. Pat. No. 8,146,077)
`
`(35 U.S.C. § 271)
`42. Plaintiff reiterates and incorporates the allegations set forth in paragraphs
`
`1-41 above as if fully set forth herein.
`43. On March 27, 2012, United States Patent No. 8,146,077 entitled
`
`“Information Management and Synchronous Communications System with Menu
`
`Generation, and Handwriting and Voice Modification of Orders” (a true and
`
`correct copy of which is attached hereto as Exhibit C and incorporated herein by
`
`reference) was duly and legally issued by the United States Patent & Trademark
`
`Office.
`44. Plaintiff Ameranth is the lawful owner by assignment of all right, title
`
`and interest in and to the ‘077 patent.
`45. On information and belief, Defendant directly infringes and continues to
`
`directly infringe one or more valid and enforceable claims of the ‘077 patent, in
`
`violation of 35 U.S.C. § 271(a), by making, using, offering for sale or license
`
`and/or selling or licensing infringing systems, products, and/or services in the
`
`United States without authority or license from Ameranth, including but not
`
`limited to the Orbitz Reservation System.
`46. On
`
`information and belief,
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`the Orbitz Reservation System, as
`
`deployed and/or used at or from one or more locations by Orbitz,
`
`its
`
`agents, distributors, partners, affiliates,
`
`licensees, and/or
`
`their customers,
`
`infringes one or more valid and enforceable claims of the ‘077 patent, by, inter
`
`alia, doing at least one of the following: (a) Configuring and transmitting menus
`
`in a system including a central processing unit, a data storage device, a computer
`14
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`AGAINST ORBITZ, LLC 12-cv-1644-DMS-WVG
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