Case 3:12-cv-00731-DMS-WVG Document 51 Filed 09/20/13 Page 1 of 43
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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
`Tel: (858) 720-8080
`Fax: (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
`
`OSBORNE LAW LLC
`John W. Osborne (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
`emw@ewattslaw.com
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`Attorneys for Plaintiff Ameranth, Inc.
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`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
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`AMERANTH, INC.,
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`OPENTABLE, INC.,
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`v.
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`Plaintiff,
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`Defendant.
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`Case No. 3:12-cv-00731-DMS-WVG
`[Consolidated with lead case 3:11-cv-
`01810-DMS-WVG and other related
`cases]
`
`FIRST AMENDED COMPLAINT
`FOR PATENT INFRINGEMENT
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`DEMAND FOR JURY TRIAL
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`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:12-cv-00731-DMS-WVG Document 51 Filed 09/20/13 Page 2 of 43
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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 OpenTable, Inc. (“OpenTable” or “Defendant”), avers as
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`follows:
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`1.
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`PARTIES
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`Plaintiff Ameranth is a Delaware corporation having a principal place
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`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.
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`Defendant OpenTable, Inc. (“OpenTable” or “Defendant”) is, on
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`information and belief, a Delaware corporation having a principal place of
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`business in San Francisco, California. On information and belief, OpenTable
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`makes, uses, offers for sale or license and/or sells or licenses restaurant and
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`foodservice information technology products, software, components and/or
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`systems within this Judicial District, including the OpenTable System as defined
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`herein. As is explained herein, OpenTable’s already widespread infringement of
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`Ameranth's patents has significantly expanded recently -- with new product
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`introductions including its new “Next Generation” system, new mobile payment
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`processing functionality, and integration with Apple's Siri voice recognition
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`features on iPhone, iPod Touch and iPad devices.
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`Case 3:12-cv-00731-DMS-WVG Document 51 Filed 09/20/13 Page 3 of 43
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`JURISDICTION AND VENUE
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`3.
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`This is an action for patent infringement arising under the Patent
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`Laws of the United States, 35 U.S.C. §§ 271, 281-285.
`4.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§
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`1331 and 1338(a).
`5.
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`On information and belief, Defendant engages in (a) the offer for sale
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`or license and sale or license of hospitality, restaurant, food service, reservation,
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`ordering, products and/or components in the United States, including this Judicial
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`District, including services, products, software, and components, comprising
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`wireless and internet POS and/or hospitality aspects; (b) the installation and
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`maintenance of said services, products, software, components and/or systems in
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`hospitality industry, restaurant, food service, and/or entertainment information
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`technology systems in the United States, including this Judicial District; and/or
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`(c) the use of hospitality industry, restaurant, food service, 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.
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`This Court has personal jurisdiction over Defendant because
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`Defendant commits acts of patent infringement in this Judicial District including,
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`inter alia, making, using, offering for sale or license, and/or selling or licensing
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`infringing services, products, software, components and/or systems in this Judicial
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`District. Additionally, Defendant has already appeared in this action and
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`submitted to the jurisdiction of the Court. Defendant has continued to engage in
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`and perform such acts of infringement since the filing of the original complaint in
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`this matter accusing Defendant of infringement of the Ameranth patents at issue
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`herein.
`7.
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`Venue is proper in this Judicial District pursuant to 28 U.S.C. §§
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`1391(b) and (c) and 1400(b).
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`/ / /
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`Case 3:12-cv-00731-DMS-WVG Document 51 Filed 09/20/13 Page 4 of 43
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`BACKGROUND
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`8.
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`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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`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.
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`Ameranth began development of the inventions leading to the patents
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`in this patent family, including the patents-in-suit, in the late Summer of 1998, at
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`a 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.
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`10.
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`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.
`11.
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`The adoption of Ameranth’s technology by industry leaders and the
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`wide acclaim received by Ameranth for its technological innovations are just
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`some of the many confirmations of the breakthrough aspects of Ameranth’s
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`inventions. Ameranth has received twelve different technology awards (three
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`with “end 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 received in 2001 for its breakthrough 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, some
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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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`Case 3:12-cv-00731-DMS-WVG Document 51 Filed 09/20/13 Page 6 of 43
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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. As a result of Ameranth’s technological breakthroughs and
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`successes, business activities, awards, press releases and coverages, participation
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`in industry conferences, licensing and enforcement activities, Ameranth, and its
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`technology and patents, are well-known throughout the hospitality industry,
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`including to the Defendants herein.
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`RELATED CASES PREVIOUSLY FILED
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`12.
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`The Ameranth patents asserted herein are all in Ameranth’s
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`“Information Management and Synchronous Communications” patent family.
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`The first patent in this family is U.S. Patent No. 6,384,850 (the “’850 patent”);
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`the subsequent issued patents in this family are U.S. Patent No. 6,871,325 (the
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`“’325 patent”) (a continuation of the ‘850 patent); U.S. Patent No. 6,982,733 (the
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`“’733 patent”) (a continuation-in-part of the ‘850 patent), and U.S. Patent No.
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`8,146,077 (the “’077 patent”) (a continuation of the ‘733 patent).
`13.
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`Ameranth is also currently asserting some or all of the four patents
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`against OpenTable and some or all of them against other defendants in over 30
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`related cases consolidated under the case entitled Ameranth v. Pizza Hut, Inc. et
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`al., Case No. 3:11-cv-01810-DMS-WVG (the “Lead Case”), that are already
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`pending in this Court (collectively the “Consolidated Cases”). In the Lead Case,
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`which was filed on August 15, 2011, Ameranth asserts claims of the ‘850 and
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`‘325 patents against several defendants, including OpenTable. Ameranth
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`subsequently filed a second lawsuit against OpenTable on March 27, 2012
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`asserting claims of the ‘077 Patent (Case No. 3:12-cv-00731-DMS-WVG). On
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`August 8, 2013, Ameranth filed a third lawsuit against OpenTable asserting
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`claims of the ‘850, ‘325, ‘733 and ‘077 Patents (Case No. 3:13-cv-01840-DMS-
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`WVG) based on OpenTable’s new product introductions, including OpenTable’s
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`new “Next Generation” system, new mobile payment processing functionality and
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`Case 3:12-cv-00731-DMS-WVG Document 51 Filed 09/20/13 Page 7 of 43
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`integration with Apple’s Siri voice recognition features on iPhone, iPod Touch
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`and iPad devices, that also infringe upon Ameranth’s patents including patent
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`claims that had not been previously asserted against OpenTable. All of the above
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`still-pending cases are coordinated for discovery and claim construction purposes.
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`This First Amended Complaint includes Ameranth’s claims against OpenTable
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`from the Lead Case and second and third lawsuits against OpenTable (Case Nos.
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`3:11-cv-01810-DMS-WVG, 3:12-cv-00731-DMS-WVG and 3:13-cv-01840-
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`DMS-WVG, respectively), and is filed pursuant to the Court’s September 13,
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`2013 Order Following Status Conference (ECF Document No. 491 in Case No.
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`3:11-cv-01810-DMS-WVG).
`14.
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`The original complaint in the Lead Case asserting patents in this
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`Ameranth patent family against OpenTable was filed in this Court on August 15,
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`2011, asserting claims under the ‘850 and ‘325 patents, and was served on
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`OpenTable shortly thereafter. In connection with discovery, disclosures and case
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`management activities in that original case, as well, on information and belief,
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`though the independent investigation of OpenTable and its counsel, the existence
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`and content of the other patents in this patent family have been made known to
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`OpenTable. Thus, at least since the time of the filing of the original complaint in
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`this action, or shortly thereafter, OpenTable has had direct knowledge of
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`Ameranth’s patents and that OpenTable’s reservations system infringes those
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`patents as alleged therein. Nonetheless, OpenTable has continued, and is
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`continuing, to make, use, offer for sale or license and/or sell or license infringing
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`systems, products, and/or services in the United States without authority or
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`license from Ameranth and to engage in acts of infringement as set forth herein.
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`As is explained herein, OpenTable’s already widespread infringement of
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`Ameranth's patents has significantly expanded recently - with new product
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`introductions including OpenTable’s new “Next Generation” system, new mobile
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`payment processing functionality, and integration with Apple's Siri voice
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`recognition features on iPhone, iPod Touch and iPad devices (thereby also
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`infringing upon Ameranth's `733 patent.)
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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)
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`15.
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`Plaintiff reiterates and incorporates the allegations set forth in
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`paragraphs 1-14 above as if fully set forth herein.
`16.
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`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 copy of which is attached hereto as
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`Exhibit A) was duly and legally issued by the United States Patent & Trademark
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`Office (“USPTO”). The ‘850 patent meets all patentability requirements of 35
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`U.S.C. §§101, 102, 103 and 112, including patent eligible subject matter,
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`enablement, definiteness, novelty and non-obviousness, as evidenced by the
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`USPTO’s thorough review of the disclosure and claims of the ‘850 patent and
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`allowance of the claims based on said review in light of all applicable law and
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`USPTO rules and guidelines respecting patentability under Title 35.
`17.
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`Plaintiff Ameranth is the lawful owner by assignment of all right,
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`title and interest in and to the ‘850 patent.
`18.
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`On information and belief, Defendant directly infringes and continues
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`to directly infringe one or more valid and enforceable claims of the ‘850 patent,
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`in 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 “OpenTable System,” OpenTable’s online and mobile restaurant
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`reservations system, which, as used herein, means and includes the current and all
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`previous “versions” (and regardless of whether alleged by OpenTable to be
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`revisions, different versions, or different systems) of the OpenTable
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`system/products/services, including, inter alia, OpenTable’s new “Next
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`Generation” system, (which is both deployed “live” by numerous customers and
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`also offered for sale (see references in paragraph 20)), its website, mobile
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`website, iPhone, Android, Windows Phone, BlackBerry and other mobile apps,
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`mobile payments through OpenTable’s mobile apps (which is both deployed
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`“live” and also offered for sale (see references in paragraph 20)), integration with
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`point-of sale systems including MICROS and others, wireless and internet
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`restaurant-reservation, table-management, and guest-management integration,
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`online and mobile restaurant reservations via, for example, OpenTable’s website
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`and mobile website and mobile apps, integration with e-mail and affinity
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`programs and social media applications such as Facebook, Twitter, Groupon, and
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`YouTube, and/or other third-party web-based and/or mobile-device based
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`applications and other hospitality aspects including integration with, inter alia,
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`Locu, Yelp, Siri, Zagat, Venga, Evernote Food, Foursquare, Google Maps, and
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`mobile-phone calendar functions. Ameranth has served OpenTable with
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`infringement contentions in previously filed actions further describing
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`OpenTable’s infringement of Ameranth’s patents. A true and correct copy of the
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`most recently-served infringement contentions is attached hereto as Exhibit E
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`and incorporated herein by reference.
`19.
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`On information and belief, the OpenTable System, as
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`deployed and/or used at or from one or more locations by OpenTable, its
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`agents, distributors, partners, affiliates, licensees, restaurant owners/operators,
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`and/or their customers, infringes one or more valid and enforceable claims of the
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`‘850 patent, by, inter alia, doing or providing the capability for doing at least one
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`of the following: (a) Generating and transmitting menus regarding, for example,
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`restaurant reservations information, in a system including a central processing
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`unit, a data storage device, a computer operating system containing a graphical
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`user interface, one or more displayable main menus, modifier menus, and sub-
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`modifier menus, and application software for generating a second menu and
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`transmitting it to a wireless handheld computing device or a Web page; and/or (b)
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`Enabling reservations and other hospitality functions via iPhone, Android, and
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`other internet-enabled wireless handheld computing devices as well as via Web
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`pages, storing hospitality information and data on at least one central database, on
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`at least one wireless handheld computing device, and on at least one Web server
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`and Web page, and synchronizing applications and data, including but not limited
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`to applications and data relating to reservations, between at least one central
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`database, wireless handheld computing devices, and at least one Web server and
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`Web page; utilizing an interface that provides a single point of entry that allows
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`the synchronization of at least one wireless handheld computing device and at
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`least one Web page with at least one central database; allowing information to be
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`entered via Web pages, transmitted over the internet, and automatically
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`communicated to at least one central database and to wireless handheld
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`computing devices; allowing information to be entered via wireless handheld
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`computing devices, transmitted over the internet, and automatically
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`communicated to at least one central database and to Web pages.
`20.
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`On information and belief, OpenTable 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, including restaurant
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`owners and operators and customers of such restaurants, by making, using,
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`offering for sale or license and/or selling or licensing infringing systems, products,
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`and/or services in the United States without authority or license from Ameranth,
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`including but not limited to the OpenTable System as defined herein, in a manner
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`understood and intended to infringe Ameranth’s patents. For example, OpenTable
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`regularly advertises, promotes, and encourages the use of OpenTable’s integrated
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`system to restaurant owners/operators, and OpenTable’s website, mobile website,
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`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
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`12-cv-00731 DMS-WVG
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`Case 3:12-cv-00731-DMS-WVG Document 51 Filed 09/20/13 Page 11 of 43
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`and mobile apps, which include, among other things, integration with Apple’s IOS
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`7 and iPhone 5S/5C devices and direct integration with Facebook via application
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`programming interface, to, for example, restaurant owners/operators and
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`consumers in a manner understood and intended to infringe Ameranth’s patents.
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`See, e.g., http://www.opentable.com/opentable-restaurant-management-
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`system#/increase_bookings ; http://www.opentable.com/info/diningrewards.aspx;
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`http://www.opentable.com/mobile/; http://seekingalpha.com/article/1597462-
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`opentable-management-discusses-q2-2013-results-earnings-call-
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`transcript?source=email_rt_article_title ;
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`http://bits.blogs.nytimes.com/2013/07/30/opentable-begins-testing-mobile-
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`payments/? ; http://blog.opentable.com/;
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`http://rsmindex.com/blog/2013/8/13/facebook-to-partner-with-opentable-to-make-
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`restaurant-reservations-available-on-mobile. Such statements of inducement
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`appear on OpenTable’s website, its advertising, its blog, user videos, industry
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`articles, mobile “app stores,” etc.
`21.
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`On information and belief, OpenTable infringes by its own actions
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`and through, or in concert with, agents of OpenTable who are under the direction
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`and control of OpenTable by virtue of contractual agreements between
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`OpenTable and such parties including, for example, restaurant owners/operators
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`who benefit from reservations, mobile payments, and other uses of the
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`OpenTable System.
`22.
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`On information and belief, defendant OpenTable has indirectly
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`infringed and continues to indirectly infringe one or more valid and enforceable
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`claims of the ‘850 patent, in violation of 35 U.S.C. § 271(b), by actively,
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`knowingly, and intentionally inducing direct infringement by other persons.
`23.
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`On information and belief, customers of OpenTable, including
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`consumers, restaurant owners/operators, and others, use the OpenTable System in
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`a manner that infringes upon one or more valid and enforceable claims of the ‘850
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`Case 3:12-cv-00731-DMS-WVG Document 51 Filed 09/20/13 Page 12 of 43
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`patent. For example, the OpenTable System provides generated menus for
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`selection of locations, restaurants, reservation times, and making restaurant
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`reservations as encompassed by claims of the ‘850 patent, and synchronizes
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`restaurant-reservation information between wireless handheld mobile devices
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`including smartphones using OpenTable mobile apps and/or accessing
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`OpenTable’s website, desktop and laptop computers accessing OpenTable’s
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`website, and “back-office” databases and associated servers. OpenTable provides
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`instruction and direction regarding the use of the OpenTable System and
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`advertises, promotes, and encourages the use of same to restaurant
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`owners/operators and consumers in a manner understood and intended to infringe
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`Ameranth’s patents. See, e.g., the references set forth in paragraph 20 herein.
`24.
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`On information and belief, OpenTable actively induces others to
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`infringe the ‘850 patent in violation of 35 U.S.C. §271(b) by actively, knowingly
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`and intentionally encouraging, aiding and abetting restaurant owners/operators,
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`customers of OpenTable, and others, including consumers and those businesses
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`and persons identified elsewhere in this First Amended Complaint, to use the
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`infringing OpenTable System in the United States without authority or license
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`from Ameranth in an infringing manner. For example, OpenTable regularly
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`advertises, promotes, and encourages the use of OpenTable’s integrated system to
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`restaurant owners/operators, and OpenTable’s website, mobile website, and
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`mobile apps to restaurant owners/operators and consumers. See, e.g., the
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`references set forth in paragraph 20 herein.
`25.
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`OpenTable has been aware of Ameranth’s patent family which
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`includes this patent well before the instant First Amended Complaint was filed.
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`Two of the patents in this Ameranth patent family (the ‘850 and ‘325 patents)
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`were asserted in a prior action against OpenTable and other defendants filed on
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`August 15, 2011, as noted above. A second action (this lawsuit) was subsequently
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`commenced against OpenTable on March 27, 2012 (originally on the ‘077 patent).
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`In connection with investigation, discovery, disclosures and case management
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`events that transpired in connection with the original lawsuit, and by virtue of
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`Ameranth’s assertion of the patents against other defendants that are involved in
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`the Consolidated Cases and are part of a joint defense group of which OpenTable
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`is a member and, on information and belief, in which information and knowledge
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`about Ameranth’s patents and infringement lawsuits is shared, the existence and
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`content of all four of the patents-in-suit here were previously made known to
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`OpenTable. Ameranth has served OpenTable with infringement contentions in
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`those previously filed actions further describing OpenTable’s infringement of
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`Ameranth’s ‘850, ‘325 and ‘077 patents. A true and correct copy of the most
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`recently-served infringement contentions is attached hereto as Exhibit E and
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`incorporated herein by reference. Further, on information and belief, OpenTable
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`had knowledge of Ameranth’s patent family, including this patent, due to the
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`widespread recognition Ameranth has received for its pioneering inventions as
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`evidenced by the twelve different technology awards Ameranth has received,
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`media recognition in The Wall Street Journal, New York Times, and USA Today,
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`Bill Gates’ nomination of Ameranth for the Computerworld Honors Award, and
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`the numerous press releases Ameranth has issued over the years. OpenTable has
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`thus obtained the level of knowledge required to support a claim for inducement
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`of infringement regarding OpenTable’s actions involving the OpenTable System,
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`as detailed herein.
`26.
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`On information and belief, OpenTable contributorily infringes and
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`continues to contributorily infringe one or more valid and enforceable claims of
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`the ‘850 patent, in violation of 35 U.S.C. § 271(c), by making, using, offering to
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`sell and/or selling components of systems on which claims of the ‘850 patent read,
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`constituting a material part of the invention, knowing that the components were
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`especially adapted for use in systems which infringe claims of the ‘850 patent and
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`therefore have no substantial non-infringing use. These “components” consist of
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`the same elements and features of the OpenTable System described above, as
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`accessed, used or benefited from by third parties—such as restaurant operators
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`and consumers—through computers and wireless handheld computing devices in
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`the possession of such third parties. Although Ameranth alleges, as set forth
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`above, that OpenTable directly infringes its patents, Ameranth alternatively
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`alleges that OpenTable indirectly infringes the patents to the extent that such third
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`parties are determined to be the “users” of the OpenTable System and direct
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`infringers of the patents.
`27.
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`By making, distributing, selling, offering, offering to sell or license
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`and/or selling or licensing the OpenTable System, OpenTable provides non-staple
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`articles of commerce to others, including those businesses and persons identified
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`elsewhere in this First Amended Complaint, for use in infringing systems,
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`products, and/or services. Because of the highly specialized and customized
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`nature of the OpenTable System software, components, integrations, etc., as
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`described herein, the OpenTable System—which is designed and built in such a
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`way that it infringes Ameranth’s patents as alleged in this First Amended
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`Complaint-- does not have substantial non-infringing uses and is a non-staple
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`article of commerce. Thus, the OpenTable System is used by third parties—
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`including restaurant operators and consumers—to manage, find, view and make
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`restaurant reservations and perform other hospitality functions in a manner that
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`infringes Ameranth’s patents and in no other substantial or meaningful way.
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`Additionally, OpenTable provides instruction and direction regarding the use of
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`the OpenTable System and advertises, promotes, and encourages the use of same
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`in a manner understood and intended to infringe Ameranth’s patents. For
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`example, OpenTable regularly advertises, promotes, and encourages the use of
`
`OpenTable’s integrated system to restaurant owners/operators, and OpenTable’s
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`website, mobile website, and mobile apps to restaurant owners/operators and
`
`consumers. See, e.g., the references set forth in paragraph 20 herein. Users of the
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`Case 3:12-cv-00731-DMS-WVG Document 51 Filed 09/20/13 Page 15 of 43
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`OpenTable System directly infringe one or more valid and enforceable claims of
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`the ‘850 patent, for the reasons set forth hereinabove.
`28.
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`OpenTable has been aware of Ameranth’s patent family which
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`includes this patent well before this First Amended Complaint was filed. Two of
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`the patents in this Ameranth patent family (the ‘850 and ‘325 Patents) have been
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`asserted in a prior action against OpenTable and other defendants filed on August
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`15, 2011, as noted above. A second action (this lawsuit) was subsequently
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`commenced against OpenTable with the filing of the complaint on March 27,
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`2012 (originally on the ‘077 patent). In connection with investigation, discovery,
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`disclosures and case management events that transpired in connection with the
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`original lawsuit, and by virtue of Ameranth’s assertion of the patents against other
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`defendants that are involved in the Consolidated Cases and are part of