`
`
`
`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
`
`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 (Admitted Pro Hac Vice)
`33 Habitat Lane
`Cortlandt Manor, NY 10567
`Telephone: (914) 714-5936
`josborne@osborneipl.com
`
`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
`
`Attorneys for Plaintiff Ameranth, Inc.
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 2 of 32
`
`
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`Civil Action No.: 3:12-cv-00733-DMS-WVG
`
`THIRD AMENDED COMPLAINT FOR
`PATENT INFRINGEMENT
`
`DEMAND FOR JURY TRIAL
`
`
`
`
`Plaintiff,
`
`AMERANTH, INC.,
`
`
`
`
`
`DOMINO’S PIZZA, LLC, and
`DOMINO’S PIZZA, INC.
`
`
`v.
`
`Defendants.
`
`
` / /
`
` /
`
`/ / /
`
`/ / /
`
`
`
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 3 of 32
`
`
`
`Plaintiff Ameranth, Inc. (“Ameranth”), for its Third Amended Complaint
`
`against Defendants Domino’s Pizza LLC and Domino’s Pizza, Inc. (collectively
`
`“Domino’s”), avers as follows:
`
`PARTIES
`1. Ameranth is a Delaware corporation having a principal place of
`
`business at 5820 Oberlin Drive, Suite 202, San Diego, California 92121.
`
`Ameranth develops, manufactures and sells, inter alia, hospitality industry,
`
`restaurant and food service information technology solutions under the
`
`trademarks 21st Century Communications™, and 21st Century Restaurant™,
`
`among others, comprising the synchronization and integration of hospitality
`
`information and hospitality software applications between fixed, wireless
`
`and/or internet applications, including but not limited to computer servers, web
`
`servers, databases, affinity/social networking systems, desktop computers,
`
`laptops, “smart” phones and other wireless handheld computing devices.
`2. Domino’s Pizza, LLC is, on information and belief, a Michigan limited
`
`liability company having a principal place of business in Ann Arbor, Michigan.
`
`Domino’s Pizza, Inc. is, on information and belief, a Delaware corporation
`
`having a principal place of business in Ann Arbor, Michigan. On information
`
`and belief, Domino’s Pizza, LLC and Domino’s Pizza, Inc. are agents and
`
`affiliates of one another and knowingly and intentionally acted in concert and
`
`under common and coordinated plan, design and control in committing the acts
`
`alleged herein, such that each entity is jointly and severally liable for the acts of
`
`each other. On information and belief, Domino’s makes, uses, offers for sale or
`
`license and/or sells or licenses restaurant and foodservice information
`
`technology products, software, components and/or systems within this Judicial
`
`District, including the Domino’s Ordering System as defined herein.
`
`/ / /
`
`1
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 4 of 32
`
`
`
`JURISDICTION AND VENUE
`3. This is an action for patent infringement arising under the Patent Laws
`
`of the United States, 35 U.S.C. §§ 271, 281-285.
`4. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§
`
`1331 and 1338(a).
`5. On information and belief, Defendants, and each of them, engage in (a)
`
`the offer for sale or license and sale or license of hospitality, restaurant, food
`
`service, ordering, products and/or components in the United States, including
`
`this Judicial District, including services, products, software, and components,
`
`comprising wireless and internet POS and/or hospitality aspects; (b) the
`
`installation and maintenance of said services, products, software, components
`
`and/or systems in hospitality industry, restaurant, and/or food service
`
`information technology systems in the United States, including this Judicial
`
`District; and/or (c) the use of hospitality industry, restaurant, and/or food
`
`service information technology systems comprising said services, products,
`
`software, components and/or systems in the United States, including this
`
`Judicial District.
`6. This Court has personal jurisdiction over Domino’s because Domino’s
`
`commits acts of patent infringement in this Judicial District including, inter
`
`alia, making, using, offering for sale or license, and/or selling or licensing
`
`infringing services, products, software, components and/or systems in this
`
`Judicial District. Additionally, Domino’s has already appeared in this action
`
`and submitted to the jurisdiction of the Court. Domino’s has continued to
`
`engage in and perform such acts of infringement since the filing and service of
`
`the original complaint in this matter accusing Domino’s of infringement of
`
`Ameranth’s patents at issue herein.
`
`2
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 5 of 32
`
`
`
`7. Venue is proper in this Judicial District pursuant to 28 U.S.C. §§
`
`1391(b) and (c) and 1400(b).
`
`BACKGROUND
`8. Ameranth was established in 1996 to develop and provide its 21st
`
`Century Communications™ innovative information technology solutions for
`
`the hospitality industry (inclusive of, e.g., restaurants, hotels, casinos,
`
`nightclubs, cruise ships and other entertainment and sports venues). Ameranth
`
`has been widely recognized as a technology leader in the provision of wireless
`
`and internet-based systems and services to, inter alia, restaurants, hotels,
`
`casinos, cruise ships, and entertainment and sports venues. Ameranth’s award-
`
`winning inventions enable, in relevant part, generation and synchronization of
`
`menus,
`
`including but not
`
`limited
`
`to restaurant menus, event
`
`tickets,
`
`reservations, and other products across fixed, wireless, and/or internet platforms
`
`as well as synchronization of hospitality information and hospitality software
`
`applications across fixed, wireless, and internet platforms, including but not
`
`limited to, computer servers, web servers, databases, affinity/social networking
`
`systems, desktop computers, laptops, “smart” phones, and other wireless
`
`handheld computing devices.
`9. Ameranth began development of the inventions leading to the patents
`
`in this patent family, including the patents-in-suit, in the late Summer of 1998,
`
`at a time when the then-available wireless and internet hospitality offerings
`
`were extremely limited in functionality, were not synchronized, and did not
`
`provide an integrated system-wide solution to the pervasive ordering,
`
`reservations, affinity program, and information management needs of the
`
`hospitality industry. Ameranth uniquely recognized the actual problems that
`
`needed to be resolved in order to meet those needs, and thereafter conceived
`
`and developed its breakthrough inventions and products to provide systemic
`
`3
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 6 of 32
`
`
`
`and comprehensive solutions directed to optimally meeting these industry
`
`needs. Ameranth has expended considerable effort and resources in inventing,
`
`developing and marketing its inventions and protecting its rights therein.
`10. Ameranth’s pioneering inventions have been widely adopted and are
`
`now essential to the modern wireless hospitality enterprise of the 21st Century.
`
`Ameranth’s solutions have been adopted, licensed, and/or deployed by
`
`numerous entities across various sectors of the hospitality industry.
`11. The adoption of Ameranth’s technology by industry leaders and the
`
`wide acclaim received by Ameranth for its technological innovations are just
`
`some of the many confirmations of the breakthrough aspects of Ameranth’s
`
`inventions. Ameranth has received twelve different technology awards (three
`
`with “end customer” partners) and has been widely recognized as a hospitality
`
`wireless/internet technology leader by almost all major national and hospitality
`
`print publications, e.g., The Wall Street Journal, New York Times, USA Today
`
`and many others. Ameranth was personally nominated by Bill Gates, the
`
`Founder of Microsoft, for the prestigious Computerworld Honors Award that
`
`Ameranth
`
`received
`
`in
`
`2001
`
`for
`
`its
`
`breakthrough
`
`synchronized
`
`reservations/ticketing system with the Improv Comedy Theatres. In his
`
`nomination, Mr. Gates described Ameranth as “one of the leading pioneers of
`
`information technology for the betterment of mankind.” This prestigious award
`
`was based on Ameranth’s innovative synchronization of wireless/web/fixed
`
`hospitality software technology. Subsequently, the United States Patent and
`
`Trademark Office granted Ameranth a number of currently-issued patents,
`
`which are the patents-in-suit in this lawsuit. Ameranth has issued press releases
`
`announcing these patent grants on business wires, on its web sites, and at
`
`numerous trade shows, including some attended by Domino’s, since the first of
`
`the presently-asserted patents in this Ameranth patent family issued in 2002. A
`
`4
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 7 of 32
`
`
`
`number of companies have licensed patents and technology from Ameranth
`
`recognizing and confirming the value of Ameranth’s innovations. At all
`
`relevant times, Ameranth marked its own products with the numbers of the
`
`Ameranth patents then issued, thereby providing companies, competitors and
`
`participants in the hospitality industry with notice of Ameranth’s patents.
`
`Furthermore, companies that license Ameranth’s products have marked their
`
`products with Ameranth’s patent numbers, thereby also providing notice of
`
`Ameranth’s patents.
`
`RELATED CASE PREVIOUSLY FILED
`12. The Ameranth patents asserted herein, U.S. Patent No. 6,384,850 (the
`
`“‘850 patent”), U.S. Patent No. 6,871,325 (the “‘325 patent”) (a continuation of
`
`the ‘850 patent), U.S. Patent No. 6,982,733 (the “‘733 patent”) (a continuation-
`
`in-part of the ‘850 patent), and U.S. Patent No. 8,146,077 (the “‘077 patent”) (a
`
`continuation of the ‘733 patent), are all patents in Ameranth’s “Information
`
`Management and Synchronous Communications” patent family.
`13. Ameranth filed its initial Complaint against Domino’s on August 15,
`
`2011 asserting infringement of the ‘850 and ‘325 patents, case no. 3:11-cv-
`
`01810-DMS-WVG (“Domino’s I.”) Ameranth filed a second action against
`
`Domino’s on March 27, 2012 asserting infringement of the ‘077 patent, case no.
`
`3:12-cv-00733-DMS-WVG (“Domino’s II.”) Ameranth filed a third action
`
`against Domino’s on July 1, 2013 asserting infringement of the ‘733 patent, case
`
`no. 3:13-cv-01520-DMS-WVG (“Domino’s III”). In an Order dated September
`
`13, 2013, the Court ordered Ameranth to “file an amended complaint against
`
`Domino’s Pizza, LLC in [Domino’s II] that includes its claims from [Dominos
`
`I] and [Dominos III].” (Doc. 491, Case No. 3:11-cv-01810-DMS-WVG.) This
`
`Third Amended Complaint is in compliance with the Court’s Order.
`
`5
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 8 of 32
`
`
`
`14. Ameranth is also currently asserting claims of these patents-in-suit in
`
`over 30
`
`related cases consolidated under 3:11-cv-01810-DMS-WVG.
`
`Domino’s has acquired knowledge of all the patent-in-suit through discovery
`
`disclosures and case management activities in Domino’s I and Domino’s II,
`
`through Domino’s own investigation, and, on information and belief, through
`
`information shared with Domino’s under a joint defense group agreement by
`
`other defendants sued by Ameranth for patent infringement.
`
`COUNT I
`
`Patent Infringement (‘850 Patent)
`
`(35 U.S.C. § 271)
`15. Plaintiff reiterates and incorporates the allegations set forth in the
`
`preceding paragraphs above as if fully set forth herein.
`16. On May 7, 2002, the ‘850 patent entitled “Information Management
`
`and Synchronous Communications System with Menu Generation” (a true and
`
`copy of which is attached hereto as Exhibit A and incorporated herein by
`
`reference) was duly and legally issued by the United States Patent & Trademark
`
`Office.
`17. Ameranth is the lawful owner by assignment of all right, title and
`
`interest in and to the ‘850 patent.
`18. On information and belief, Domino’s directly infringes and continues
`
`to directly infringe one or more valid and enforceable claims of the ‘850 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 Domino’s ordering system/product/service, which includes, inter
`
`alia, wireless and internet POS integration, online and mobile ordering,
`
`integration with e-mail and affinity program and social media applications such
`
`6
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 9 of 32
`
`
`
`as Facebook, Twitter, Groupon, and YouTube, and/or other third-party web-
`
`based applications, and other hospitality aspects (“Domino’s Ordering
`
`System”).
`
` Ameranth previously served Domino’s with
`
`infringement
`
`contentions further describing the details of Domino’s infringement of
`
`Ameranth’s patents. Those infringement contentions are attached hereto as
`
`Exhibit D and incorporated herein by reference.
`19. On information and belief, the Domino’s Ordering System, as
`
`deployed and/or used at or from one or more locations by Domino’s, its agents,
`
`distributors, partners, affiliates, licensees, franchisees, and/or their customers,
`
`infringes the ‘850 patent, by, inter alia, enabling product ordering and other
`
`hospitality functions via iPhone, Android, and other internet-enabled wireless
`
`handheld computing devices as well as via Web pages, storing hospitality
`
`information and data on at least one central database, on at least one wireless
`
`handheld computing device, and on at least one Web server and Web page, and
`
`synchronizing applications and data, including but not limited to applications
`
`and data relating to orders, between at least one central database, wireless
`
`handheld computing devices, and at least one Web server and Web page;
`
`utilizing an interface that provides a single point of entry that allows the
`
`synchronization of at least one wireless handheld computing device and at least
`
`one Web page with at least one central database; allowing information to be
`
`entered via Web pages, transmitted over the internet, and automatically
`
`communicated to at least one central database and to wireless handheld
`
`computing devices; allowing information to be entered via wireless handheld
`
`computing devices,
`
`transmitted over
`
`the
`
`internet, and automatically
`
`communicated to at least one central database and to Web pages.
`20. On information and belief, Domino’s actively induces others to
`
`infringe the ‘850 patent in violation of 35 U.S.C. §271(b) by knowingly
`
`7
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 10 of 32
`
`
`
`encouraging, aiding and abetting
`
`third parties,
`
`including consumers,
`
`franchisees, and restaurant operators, to use the infringing Domino’s Ordering
`
`System in the United States without authority or license from Ameranth in a
`
`manner understood and intended by Domino’s to infringe Ameranth’s patents,
`
`as described above.
`21. On information and belief, third parties, including consumers,
`
`franchisees, and restaurant operators use the Domino’s Ordering System in a
`
`manner that infringes upon valid and enforceable claims of the ‘850 patent.
`
`Domino’s provides instruction and direction regarding the use of the Domino’s
`
`Ordering System and advertises, promotes, and encourages the use of the
`
`Domino’s Ordering System, in a manner understood and intended by Domino’s
`
`to infringe Ameranth’s patents. Domino’s provides such instruction, direction
`
`and encouragement regarding infringing use of the Domino’s Ordering System
`
`on its webpages, in user videos, in offerings in “app stores,” in press releases
`
`and in statements in industry news articles, as demonstrated in the infringement
`
`contentions attached hereto as Exhibit D and in the references cited in the
`
`appendix thereto. Further, on information and belief, Domino’s instructs on
`
`and requires the use of the Domino’s Ordering System by its franchisees and
`
`restaurant operators.
`22. Domino’s became aware of Ameranth’s patent family which includes
`
`the ‘850 patent well before the initial Complaint in Domino’s I was filed.
`
`Domino’s learned of Ameranth’s patent family at least as early as 2006 during
`
`business partnering discussions concerning Ameranth and Intercontinental
`
`Hotels Group’s “eHost” product/project - in which hotel guest pizza ordering to
`
`guest hotel rooms was planned to occur through online ordering and
`
`Ameranth’s “eHost” e-concierge project. Domino’s knew of the ‘850 patent at
`
`least since the filing and service of the Domino’s I complaint. After the date it
`
`8
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 11 of 32
`
`
`
`first acquired knowledge of the ‘850 patent, Domino’s knew or should have
`
`known that its continued offering and deployment of the Domino’s Ordering
`
`System, and its continued support of consumers, franchisees, and restaurant
`
`operators would induce direct infringement by those users. Despite its
`
`knowledge, Domino’s continued its infringing conduct described herein.
`
`Additionally, Domino’s
`
`intended
`
`that
`
`its actions would
`
`induce direct
`
`infringement by those users.
`23. On information and belief, Domino’s contributorily infringes and
`
`continues to contributorily infringe one or more valid and enforceable claims of
`
`the ‘850 patent, in violation of 35 U.S.C. § 271(c), by making, using, offering
`
`to sell and/or selling components of systems on which claims of the ‘850 patent
`
`read, constituting a material part of the invention, knowing that the components
`
`were especially adapted for use in systems which infringe claims of the ‘850
`
`patent.
`24. By distributing, selling, offering, offering to sell or license and/or
`
`selling or licensing the Domino’s Ordering System, Domino’s provides non-
`
`staple articles of commerce to others for use, including consumers, franchisees,
`
`and restaurant operators, in infringing systems, products, and/or services.
`
`Additionally, Domino’s provides instruction and direction regarding the use of
`
`the Domino’s Ordering System and advertises, promotes, and encourages the
`
`use of the Domino’s Ordering System, in a manner understood and intended by
`
`Domino’s to infringe Ameranth’s patents, as described above. On information
`
`and belief, Domino’s instructs on and requires use of the Domino’s Ordering
`
`System by its franchisees and restaurant operators in connection with online
`
`and mobile product ordering. Users of the Domino’s Ordering System,
`
`including, but not limited to, consumers, franchisees, and restaurant operators,
`
`directly infringe one or more valid and enforceable claims of the ‘850 patent for
`
`9
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 12 of 32
`
`
`
`the reasons set forth hereinabove. Those components consist of the same
`
`elements and features of the Domino’s Ordering System described above, as
`
`accessed, used, or benefited from by third parties, including consumers,
`
`franchisees, and restaurant operators through computers, and wireless handheld
`
`computing devices in the possession of such third parties. Although Ameranth
`
`alleges, as set forth above, that Domino’s directly infringes the patents-in-suit,
`
`Ameranth alternatively alleges that Domino’s indirectly infringes to the extent
`
`that such third parties are determined to be the “users” of the Domino’s
`
`Ordering System and direct infringers of the patents-in-suit.
`25. After the date it first acquired knowledge of the ‘850 patent, as
`
`described above, Domino’s had knowledge that the Domino’s Ordering 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 ‘850 patent, and
`
`that there are no substantial non-infringing uses for the Domino’s Ordering
`
`System because of the highly specialized and customized nature of the
`
`Domino’s Ordering System’s software, components, and integrations. As
`
`described herein, the Domino’s Ordering System, which is designed and
`
`developed to permit online and mobile food ordering in a manner that infringes
`
`Ameranth’s patents, does not have substantial non-infringing uses and is not a
`
`staple article of commerce. Thus, the Domino’s Ordering System is used by
`
`third parties in connection with online and mobile food ordering and other
`
`hospitality functions in a way that infringes the patents-in-suit and in no other
`
`substantial or meaningful way.
`26. On information and belief, the aforesaid infringing activities of
`
`Domino’s have been done with knowledge and willful disregard of Ameranth’s
`
`patent rights, making this an exceptional case within the meaning of 35 U.S.C.
`
`§ 285.
`
`10
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 13 of 32
`
`
`
`27. The aforesaid infringing activity of Domino’s has directly and
`
`proximately caused damage to Ameranth, including loss of profits from sales or
`
`licensing it would have made but for the infringements. Unless enjoined, the
`
`aforesaid infringing activity will continue and cause irreparable injury to
`
`Ameranth for which there is no adequate remedy at law.
`
`COUNT II
`
`Patent Infringement (‘325 Patent)
`
`(35 U.S.C. § 271)
`28. Plaintiff reiterates and reincorporates the allegations set forth in the
`
`preceding paragraphs above as if fully set forth herein.
`29. On March 22, 2005, the ‘325 patent entitled “Information Management
`
`and Synchronous Communications System with Menu Generation” (a true and
`
`correct copy of which is attached hereto as Exhibit B and incorporated by
`
`reference herein) was duly and legally issued by the United States Patent &
`
`Trademark Office.
`30. Ameranth is the lawful owner by assignment of all right, title and
`
`interest in and to the ‘325 patent.
`31. On information and belief, Domino’s directly infringes and continues
`
`to directly infringe one or more valid and enforceable claims of the ‘325 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, said systems
`
`including but not limited to the Domino’s Ordering System. Ameranth
`
`previously served Domino’s with infringement contentions further describing
`
`the details of Domino’s infringement of Ameranth’s patents.
`
` Those
`
`infringement contentions are attached hereto as Exhibit D and incorporated
`
`herein by reference.
`
`11
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 14 of 32
`
`
`
`32. On information and belief, the Domino’s Ordering System, as
`
`deployed and/or used at or from one or more locations by Domino’s, its agents,
`
`distributors, partners, affiliates, licensees, franchisees, and/or their customers,
`
`infringes the ‘325 patent, by, inter alia, enabling product ordering and other
`
`hospitality functions via iPhone, Android, and other internet-enabled wireless
`
`handheld computing devices as well as via Web pages, storing hospitality
`
`information and data on at least one central database, on at least one wireless
`
`handheld computing device, and on at least one Web server and Web page, and
`
`synchronizing applications and data, including but not limited to applications
`
`and data relating to orders, between at least one central database, wireless
`
`handheld computing devices, and at least one Web server and Web page;
`
`utilizing an interface that provides a single point of entry that allows the
`
`synchronization of at least one wireless handheld computing device and at least
`
`one Web page with at least one central database; allowing information to be
`
`entered via Web pages, transmitted over the internet, and automatically
`
`communicated to at least one central database and to wireless handheld
`
`computing devices; allowing information to be entered via wireless handheld
`
`computing devices,
`
`transmitted over
`
`the
`
`internet, and automatically
`
`communicated to at least one central database and to Web pages.
`33. On information and belief, Domino’s actively induces others to
`
`infringe the ‘325 patent in violation of 35 U.S.C. §271(b) by knowingly
`
`encouraging, aiding and abetting
`
`third parties,
`
`including consumers,
`
`franchisees, and restaurant operators, to use the infringing Domino’s Ordering
`
`System in the United States without authority or license from Ameranth in a
`
`manner understood and intended by Domino’s to infringe Ameranth’s patents,
`
`as described above.
`
`12
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 15 of 32
`
`
`
`34. On information and belief, third parties, including consumers,
`
`franchise operators, and restaurant operators, use the Domino’s Ordering
`
`System in a manner that infringes upon valid and enforceable claims of the ‘325
`
`patent. Domino’s provides instruction and direction regarding the use of the
`
`Domino’s Ordering System and advertises, promotes, and encourages the use of
`
`the Domino’s Ordering System, in a manner understood and intended by
`
`Domino’s to infringe Ameranth’s patents. Domino’s provides such instruction,
`
`direction and encouragement regarding infringing use of the Domino’s
`
`Ordering System on its webpages, in user videos, in offerings in “app stores,”
`
`in press releases and in statements in industry news articles, as demonstrated in
`
`the infringement contentions attached hereto as Exhibit D and in the references
`
`cited in the appendix thereto. Further, on information and belief, Domino’s
`
`instructs on and requires the use of the Domino’s Ordering System by its
`
`franchisees and restaurant operators.
`35. Domino’s became aware of Ameranth’s patent family which includes
`
`the ‘325 patent well before the initial Complaint in Domino’s I was filed.
`
`Domino’s learned of Ameranth’s patent family at least as early as 2006 during
`
`business partnering discussions concerning Ameranth and Intercontinental
`
`Hotels Group’s “eHost” product/project - in which hotel guest pizza ordering to
`
`guest hotel rooms was planned to occur through online ordering and
`
`Ameranth’s “eHost” e-concierge project. Domino’s knew of the ‘325 patent at
`
`least since the filing and service of the Domino’s I complaint. After the date it
`
`first acquired knowledge of the ‘325 patent, Domino’s knew or should have
`
`known that its continued offering and deployment of the Domino’s Ordering
`
`System, and its continued support of consumers, franchisees, and restaurant
`
`operators would induce direct infringement by those users. Despite its
`
`knowledge, Domino’s continued its infringing conduct described herein.
`
`13
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 16 of 32
`
`
`
`Additionally, Domino’s
`
`intended
`
`that
`
`its actions would
`
`induce direct
`
`infringement by those users.
`36. On information and belief, Domino’s 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 making, using, offering
`
`to sell and/or selling components of systems on which claims of the ‘325 patent
`
`read, 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.
`37. By distributing, selling, offering, offering to sell or license and/or
`
`selling or licensing the Domino’s Ordering System, Domino’s provides non-
`
`staple articles of commerce to others for use, including consumers, franchisees,
`
`and restaurant operators, in infringing systems, products, and/or services.
`
`Additionally, Domino’s provides instruction and direction regarding the use of
`
`the Domino’s Ordering System and advertises, promotes, and encourages the
`
`use of the Domino’s Ordering System, in a manner understood and intended by
`
`Domino’s to infringe Ameranth’s patents, as described above. On information
`
`and belief, Domino’s instructs on and requires use of the Domino’s Ordering
`
`System by its franchisees and restaurant operators in connection with online
`
`and mobile product ordering. Users of the Domino’s Ordering System,
`
`including, but not limited to, consumers, franchisees, and restaurant operators,
`
`directly infringe one or more valid and enforceable claims of the ‘325 patent for
`
`the reasons set forth hereinabove. Those components consist of the same
`
`elements and features of the Domino’s Ordering System described above, as
`
`accessed, used, or benefited from by third parties, including consumers,
`
`franchisees, and restaurant operators through computers, and wireless handheld
`
`computing devices in the possession of such third parties. Although Ameranth
`
`14
`
`THIRD AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Civil Action No. 12-cv-00733-DMS-WVG
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Case 3:12-cv-00733-DMS-WVG Document 56 Filed 09/20/13 Page 17 of 32
`
`
`
`alleges, as set forth above, that Domino’s directly infringes the patents-in-suit,
`
`Ameranth alternatively alleges that Domino’s indirec