'-
`
`,
`
`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 1 of 52 Page ID #:779
`
`RUSS AUGUST & KABAT
`Marc A. Fenster, State Bar No. 181067
`Bruce D. Kuyper, State Bar No. 144969
`Andrew D. Weiss, State Bar ~f? 232974
`12424 Wilshire Boulevard, 12 Floor
`Los Angeles, California 90025
`Tel:
`(310~ 826-7474
`Fax:
`(310 826-6991
`Email: menster@raklaw.com
`Email: bkuyper@raklaw.com
`Email: awelss@raklaw.com
`Attorneys for Proxyconn, Inc.
`UNITED STATES DISTRICT COURT\
`CENTRAL DISTRICT OF CALIFORNIi
`SOUTHERN DIVISION
`
`PROXYCONN,
`
`INC.,
`Plaintiff
`
`vs.
`MICROSOFT CORPORATION;
`HEWLETT-PACKARD COMPANY;
`ACER AMERICA CORPORATION;
`and DELL INC.,
`
`Case No. SA CV 11 -1681-DOC(JPRx)
`CONSOLIDATED
`SECOND AMENDED
`CONSOLIDATED COMPLAINT
`FOR PATENT INFRINGEMENT
`
`JURY TRIAL DEMANDED
`
`Defendants.
`
`
`
`MICROSOFT
`
`EXHIBIT 1012
`
`ORIGINAL
`
`SECOND AMENDED CONSOLIDATED COMPLAINT
`
`Page 1 of 34
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`
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`~
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`ren
`r.n
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`0~
`
`~~
`
`

`

`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 2 of 52 Page ID #:780
`
`PlaintiffProxyconn,
`
`Inc. ("Proxyconn") alleges as follows:
`PARTIES
`Plaintiff Proxyconn is a California corporation with its principal place
`1.
`of business located at 3211 S. Shannon Street, Santa Ana, California 92704.
`2.
`Defendant Microsoft Corporation
`("Microsoft")
`is a Washington
`corporation with its principal place of business at One Microsoft Way, Redmond,
`Washington 98052. Microsoft has appointed Corporation Service Company, 2730
`Gateway Oaks Drive, Suite 100, Sacramento, California 95833, as its agent for
`
`service of process.
`a Delaware
`is
`("HP")
`Company
`3.
`Defendant Hewlett-Packard
`corporation with its principal place of business at 3000 Hanover Street, Palo Alto,
`California 94304. HP has appointed CT Corporation System, 818 W. Seventh
`Street, Los Angeles, California 90017, as its agent for service of process.
`4.
`Defendant Acer America Corporation
`("Acer")
`is a California
`corporation with its principal place of business at 333 West San Carlos Street,
`Suite 1500, San Jose, California 95110. Acer has appointed C T Corporation
`System, 818 West 7th Street, Los Angeles, California 90017, as its agent for
`
`service of process.
`corporation with its
`is a Delaware
`("Dell")
`Inc.
`5.
`Defendant Dell
`principal place of business at 1 Dell Way, Round Rock, Texas 78682. Dell has
`appointed Corporation Service Company, 2711 Centerville Road, Suite 400,
`Wilmington, Delaware 19808, as its agent for service of process.
`6.
`Microsoft, HP, Acer and Dell shall be referred to collectively as
`
`"Defendants. "
`
`JURISDICTION AND VENUE
`This action arises under the patent laws of the United States, Title 35
`7.
`of the United States Code. Accordingly,
`this Court has subject matter jurisdiction
`under 28 U.S.C. §§ 1331 and 1338(a).
`
`1
`SECOND AMENDED CONSOLIDATED COMPLAINT
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`

`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 3 of 52 Page ID #:781
`
`Venue is proper in this District under 28 U.S.C. §§ 1391 (b)-(d) and
`8.
`1400(b) because each defendant
`is subject to personal jurisdiction in this Distric!,
`has committed acts of patent
`infringement
`in this District, or has a regular and
`established place of business in this District.
`to 35 U.S.C. §299. On
`9.
`Joinder
`is appropriate in this case pursuant
`information and belief, Microsoft has agreed to indemnify and defend HP, Acer
`and Dell because of the relation of Proxyconn's
`claims to Microsoft's products.
`Defendants have agreed to the consolidation
`of the pending actions filed by
`Proxy conn against Defendants. 1
`FACTUAL BACKGROUND
`Proxyconn was founded in 2001 in Santa Ana, California.
`
`It remains
`
`10.
`
`based in Santa Ana today.
`11.
`Proxyconn was started to address the problem of demands by users of
`networks,
`such as the Internet,
`to instantly receive content over the network;
`While other solutions simply relied on increasing available bandwidth, Proxycotin
`sought a more intelligent solution that could be used with existing technology and
`
`: . :.'"
`
`bandwidth.
`created a technology that used existing
`12. As a result, Proxyconn
`technological
`limitations while making the use of networks effectively many times
`faster than previously possible. Proxyconn filed a patent application on its novel
`technology. As a result of that patent application, Proxyconn was awarded United
`States Patent No. 6,757,717 ("the '717 patent").
`13.
`Proxyconn's technology and method were used by hundreds of ISPs
`and hundreds of thousands of users in the United States and throughout
`the world,
`and is still being used.
`
`Inc. v. Hewlett-Packard Company, Cas~.
`IThe actions consolidated into this one are: Proxyconn,
`No. SA CV 11-1682-DOC, Proxyconn,
`Inc. v. Dell Inc., Case No. SA CV 11-1683-DOC,
`Proxyconn,
`Inc. v. Acer America Corporation, Case No. SA CV 11-1684-DOC and Proxyconn,
`Inc. v. Microsoft et al., Case No. SA CV 12-889-DOC.
`2
`SECOND AMENDED CONSOLIDATED COMPLAINT
`
`Page 3 of 34
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`28
`
`f-<
`
`<a:l
`;2
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`r:/)
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`en
`~
`
`

`

`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 4 of 52 Page ID #:782
`
`r
`
`Proxy conn is the owner by assignment of the '717 patent. The '717
`14.
`patent is entitled "System and Method for Data Access." The '717 patent issued on
`June 29, 2004. A true and correct copy of the '717 patent
`is attached hereto as
`
`Exhibit A.
`
`COUNT I
`(Infringement of U.S. Patent No. 6,757,717 Against Microsoft)
`15. Microsoft has been and still is directly (literally and under the doctririe
`of equivalents)
`infringing at
`least claims 1, 10, 11 and 22 of the '717 patent,
`literally and under the doctrine of equivalents, by making, using, selling, offering
`to sell, or importing, without
`license or authority, software that creates, transmits,
`receives, or compares digital digests on data, including, but not limited to, its use
`of Remote Differential Compression ("RDC") technology in at least its Windows
`Server 2003 R2, Windows Server 2008, Windows Small Business Server 2003,
`Windows Small Business Server 2008, Windows Small Business Server 20 1l ,
`Windows XP with Service Pack 3, Windows Vista, and Windows 7 operating
`systems. For example, on information and belief, Microsoft uses its Distributed
`File System ("DFS") Replication product, which uses RDC, on its servers. See
`http://msdn.microsoft.com/en-
`Attached as Exhibit
`us/library/windows/desktop/bb540025%28v=vs.85%29.aspx.
`B to this complaint
`is an exemplary chart
`illustrating how Microsoft's making;
`license or authority, D~S
`using, selling, offering to sell, or importing, without
`Replication and RDC infringes claims 1, 10, 11 and 22 of the '717 patent.
`16. Microsoft has been and still
`is indirectly infringing, by way of
`inducing infringement by others of the '717 patent, by, among other
`things,
`making, using,
`importing, offering for sale, and/or selling, without
`license or
`authority, software for use in systems that thereby fall within the scope of at least
`claims 1, 10, 11 and 22 of the '717 patent.
`Such software includes, but
`is not
`limited to, the Remote Differential Compression ("RDC") technology used in at
`
`3
`SECOND AMENDED CONSOLIDATED COMPLAfNT
`
`Page 4 of 34
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`-<
`f-<
`r:Q
`
`~d
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`if.!
`~
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`
`

`

`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 5 of 52 Page ID #:783
`
`its Windows Server 2003 R2, Windows Server 2008, Windows Small
`least
`Business Server 2003, Windows Small Business Server 2008, Windows Small
`Business Server 2011, Windows XP with Service Pack 3, Windows Vista, and
`Windows 7 operating systems.
`This software is used in infringing computer
`systems made, used, imported, offered for sale, and/or sold by direct infringers of
`the '717 patent
`in the United States, such as computer manufacturers (for example,
`HP, Dell
`and Acer)
`and end-users
`(for example,
`customers
`that purchase
`Microsoft's
`software and use it in their computer systems). The systems using
`Microsoft's
`software
`include
`a sender
`computer
`and a receiver
`computer
`communicating through a network, with each computer equipped with a method
`for creating digital digests on data and the receiving computer including a means
`for comparing digital digests. Microsoft
`induces others to directly infringe. by
`See, e.g!;
`inducing or encouraging the use of its infringing RDC technology.
`and
`http://technet.microsoft.comJen-us/library/cc754372.aspx
`http://msdn.microsoft.comJen-
`72963%28v=VS.85%29 .aspx.
`us/library/windows/desktop/aa3
`least
`at
`Since
`Inc. v. Microsoft
`in Proxyconn,
`November 3, 2011, when the original complaint
`Corp. et al., Case No. l1-cv-1681-DOC was filed, Microsoft has had knowledge of
`the '717 patent and, by continuing the actions described above, has had the specific
`intent
`to, or were willfully blind to the fact
`that
`its actions would,
`induce
`See,
`e.g., http://technet.microsoft.com/en ...
`infringement
`of
`the
`'717 patent.
`us/library/cc754372.aspx
`and
`http;/lmsdn.microsoft.com/eI??
`us/library/windows/desktop/aa372963%28v=VS.85%29.aspx.
`Indeed, Microsoft
`has been aware of Proxyconn and its products since at least the summer of 200~,
`when Microsoft reviewed Proxyconn's technology. On information and belief, asa
`result of its awareness of Proxyconn and its technology, Microsoft has been aware
`of the patent since it issued on June 29, 2004. Thus, by making, using, importing,
`offering for sale, and/or selling such software, Microsoft has injured Proxyconn
`
`~.'. 1 "'
`
`.•t»
`
`4
`SECOND AMENDED CONSOLIDATED COMPLAINT
`
`Page 5 of 34
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`;2
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`
`

`

`"
`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 6 of 52 Page ID #:784
`
`and is thus liable to Proxyconn for infringement of the '717 patent under 35 U.S.C.
`§ 271(b).
`",
`is indirectly infringing, by way 'of
`17. Microsoft has also been and still
`contributing to the infringement by others of the '717 patent, by, among other
`things, making, using,
`importing, offering for sale, and/or selling, without
`license
`or authority, software for use in systems that thereby fall within the scope of at
`least claims 1, 10, 11 and 22 of the '717 patent. Such software includes, but is not
`limited to,
`the RDC technology used in at least
`its Windows Server 2003 R2,
`Windows Server 2008, Windows Small Business Server 2003, Windows Small
`Business Server 2008, Windows Small Business Server 2011, Windows XP with
`Service Pack 3, Windows Vista, and Windows 7 operating systems. This software
`is used in infringing computer
`systems made, used,
`imported, offered for sale,
`and/or sold by direct
`infringers of the '717 patent
`in the United States, such as
`(for example, HP, Dell and Acer) and end-users (f9f
`computer manufacturers
`example,
`customers
`that purchase Microsoft's
`software and install
`it
`in t4i~
`computer
`systems).
`The systems using Microsoft's
`software include a sender
`computer and a receiver computer communicating through a network, with each
`computer equipped with a method for creating digital digests on data and the
`receiving computer
`including a means for comparing digital digests. Microsoft
`contributes to others directly infringing by inducing or encouraging the use of its
`See,
`e.g.,
`infringing
`RDC technology.
`http://technet.microsofi.com/en-
`http://msdn.microsoft.com/en,,
`us/library/cc754372.aspx
`and
`us/library/windows/desktop/aa372963%28v=VS.85%29.aspx.
`Microsoft's accused
`software,
`including the RDC technology,
`is a material part of the invention, and .~~
`especially made or especially adapted for use in the infringement of '717 patent and
`,
`1~
`is not a staple article or commodity
`of commerce
`suitable
`for substantial
`noninfringing uses. Since at least November 3, 2011, when the original complaint
`in Proxyconn,
`Inc. v. Microsoft Corp. et al., Case No. SA CV 11-1681-DOC was
`
`;'
`
`';
`
`5
`SECOND AMENDED CONSOLIDATED COMPLAINT
`
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`

`

`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 7 of 52 Page ID #:785
`
`filed, Microsoft has had knowledge of the '717 patent and, by continuing the
`actions described above, has had the specific intent to, or were willfully blind to
`induce infringement of the '717 patent. See, e.g.,
`the fact that
`its actions would,
`and
`http://technet.microsoft,com/en-us/library/cc754372.aspx
`http://msdn.microsoft.com/en-
`Indeed, Microsoft
`us/library/windows/desktop/aa3729630/o28v=VS.85%29.aspx.
`has been aware of Proxyconn and its products since the summer of 2003, wh~h
`Microsoft reviewed Proxyconn's technology. On information and belief, as a result
`of its awareness of Proxyconn and its technology, Microsoft has been aware of the
`patent
`since it
`issued on June 29, 2004.
`Thus, by making, using,
`importing,
`offering for sale, and/or selling such software, Microsoft has injured Proxyconn
`and is thus liable to Proxyconn for infringement of the '717 patent under 35 U.S.C;:.
`
`\ .;:¥.:
`
`-.;
`,
`'.
`
`§ 271(c).
`that facts learned in discovery show that Microsoft's
`To the extent
`18.
`infringement of the '717 patent is or has been willful, Proxyconn reserves the right
`to request such a finding at time of trial.
`19.
`To the extent necessary, Proxy conn has marked its products pursuant
`to 35 U.S.C. § 287(a).
`20.
`As a result of Microsoft's infringement of the '717 patent, Proxycorm
`suffered monetary
`damages
`in an amount
`adequate
`to compensate
`fCl[
`has
`Microsoft's infringement, but in no event less than a reasonable royalty for the use
`made of the invention by Microsoft,
`together with interest and costs as fixed by the
`Court, and Proxy conn will continue to suffer damages
`in the future unless
`Microsoft's infringing activities are enjoined by this Court.
`21.
`Unless a permanent
`injunction is issued enjoining Microsoft and its
`agents, servants, employees,
`representatives,
`affiliates, and all others acting or in
`active concert therewith from infringing the '717 patent, Proxy conn will be greatly
`and irreparably harmed.
`
`i
`
`;i
`
`6
`SECOND AMENDED CONSOLIDATED COMPLAINT
`
`Page 7 of 34
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`f-
`;2
`<t:o:l
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`
`

`

`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 8 of 52 Page ID #:786
`,
`
`operating systems.
`23.
`For example, HP directly infringes claims 1 and 10 by making, using,
`selling, offering to sell or importing, without
`license or authority,
`the computer
`systems and software described above to its customers.
`Indeed, HP offers a
`training course to its customers that includes teaching the use of Microsoft's DFS
`See
`Replication
`product,
`.
`which
`uses
`RDC.
`http://www.hp.com/education!courses/hf847s.html?jumpid=reg
`1'1002 usem,
`24.
`As another example, on information and belief, HP directly infringes,
`claims 11 and 22 by using Microsoft's DFS Replication product on its internal
`servers, thereby practicing the claimed methods.
`IS an exemplary chart
`25.
`Attached as Exhibit B to this complaint
`illustrating how HP's making, using, selling, offering to sell, or importing, without
`license or authority, of
`its computer
`systems and software described above
`infringes claims 1, 10, 11 and 22 of the '717 patent.
`
`7
`SECOND AMENDED CONSOLIDATED COMPLAINT
`
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`f-
`<:
`t:Q
`
`~C
`
`d
`f-
`r/)
`
`~0~
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`rr/)
`r/)~
`~
`
`,
`
`;
`
`COUNT II
`of U.S. Patent No. 6,757,717 Against HP)
`(Infringement
`HP has been and still
`is directly (literally and under the doctrine of
`22.
`infringing at least claims 1, 10, 11 and 22 of the '717 patent, literally
`equivalents)
`and under the doctrine of equivalents, by making, using, selling, offering to sell, or
`importing, without
`license or authority, computer systems that
`include a sender
`computer and a receiver computer communicating through a network, with each
`computer equipped with a method for creating digital digests on data and the
`receiving computer including a means for comparing digital digests.
`In particular,
`these computer systems contain software including, but not limited to, the Remote
`Differential Compression
`("RDe")
`technology
`used in at
`least Microsoft's
`Windows Server 2003 R2, Windows Server 2008, Windows Small Business Server
`2003, Windows Small Business Server 2008, Windows Small Business Server
`2011, Windows XP with Service Pack 3, Windows Vista, and Windows 7
`
`

`

`'.
`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 9 of 52 Page ID #:787
`
`is indirectly infringing, by way of inducing
`HP has been and still
`26.
`infringement by others of the '717 patent, by, among other things, making, using,
`importing, offering for sale, and/or selling, without
`license or authority, personal
`computers and servers for use in systems that thereby fall within the scope of at
`Such personal computers and
`least claims 1, 10, 11 and 22 of the '717 patent.
`servers include a sender computer and a receiver computer communicating through
`a network, with each computer equipped with a method for creating digital digests
`on data and the receiving computer
`including a means for comparing digital
`digests.
`In particular,
`these computer systems contain software including, but not
`limited to, the Remote Differential Compression ("RDC") technology used in at
`least Microsoft's Windows Server 2003 R2, Windows Server 2008, Windows
`Small Business Server 2003, Windows Small Business Server 2008, Windows
`Small Business Server 2011, Windows XP with Service Pack 3, Windows Vista,
`and Windows 7 operating systems. HP induces its customers and end users to
`directly infringe by inducing or encouraging
`the use of the infringing RD~
`technology.
`rl002 usem.
`http://www.hp.com/educationJcourses/hf847s.html?jumpid=reg
`in Proxyconn, Inc. v.
`Since at least November 3, 2011, when the original complaint
`Hewlett-Packard Company, Case No. 11-cv-1682-DOC was filed, HP has had
`knowledge of the '717 patent and, by continuing the actions described above, has
`had the specific intent to, or were willfully blind to the fact that its actions would,
`See
`induce
`infringement
`of
`the
`'717
`patent.
`http://www.hp.comJeducation!courses/hf847s.html?jumpid=reg
`rl002 useru.
`Thus, by making, using,
`importing, offering for sale, andlor selling such personal
`computers and servers, HP has injured Proxy conn and is thus liable to Proxyconn
`for infringement of the '717 patent under 35 U.S.C. § 271(b).
`is indirectly infringing, by way of
`27.
`HP has also been and still
`contributing to the infringement by others of the '717 patent, by, among other
`
`~': ;
`
`.. ;:~
`
`8
`SECOND AMENDED CONSOLIDATED COMPLAINT
`
`Page 9 of 34
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`
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`
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`~
`
`

`

`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 10 of 52 Page ID #:788
`',
`
`,
`
`license
`importing, offering for sale, and/or selling, without
`things, making, using,
`or authority, systems that thereby fall within the scope of at least claims 1, 10, 11
`and 22 of the '717 patent. Such personal computers and servers include a sender
`computer and a receiver computer communicating through a network, with each
`computer equipped with a method for creating digital digests on data and the
`receiving computer including a means for comparing digital digests.
`In particular,
`these computer systems contain software including, but not limited to, the Remote
`Differential Compression
`("RDC")
`technology
`used in at
`least Microso~~
`Windows Server 2003 R2, Windows Server 2008, Windows Small Business Server
`2003, Windows Small Business Server 2008, Windows Small Business Server
`2011, Windows XP with Service Pack 3, Windows Vista, and Windows 7
`operating systems. HP contributes to its customers directly infringing by inducing
`See
`or
`encouragmg
`the
`use
`of
`its
`infringing
`RDC
`technology.
`http://www.hp.com/education/courses/hf84
`7s.html?jumpid=reg
`rl002 useni.
`HP's systems and software are a material part of the invention, and are especially
`made or especially adapted for use in the infringement of '717 patent and are nota
`staple article or commodity of commerce suitable for substantial noninfringing
`in Proxyconn,
`uses. Since at least November 3, 2011, when the original complaint
`Inc. v. Hewlett-Packard Company, Case No. 11-cv-1682-DOC was filed, HP h~§
`., ..,
`had knowledge of the '717 patent and, by continuing the actions described above,
`has had the specific intent to, or were willfully blind to the fact that its actions
`See
`would,
`induce
`infringement
`of
`the
`'717
`patent.
`http://www .hp.comJeducation/courses/hf84 7s.html ?jumpid=reg r 1002 useni.
`Thus, by making, using, importing, offering for sale, and/or selling such software,
`HP has injured Proxyconn and is thus liable to Proxyconn for infringement of the
`'717 patent under 35 U.S.C. § 271(c).
`
`9
`SECOND AMENDED CONSOLIDATED COMPLAINT
`
`Page 10 of 34
`
`1 2 3 4 5 6 7 8 9
`
`10
`II
`12
`13
`14
`
`15
`
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
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`
`~(
`
`::Q
`
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`

`

`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 11 of 52 Page ID #:789
`
`show that BP's
`learned in discovery
`facts
`that
`extent
`To the
`28.
`infringement of the '717 patent is or has been willful, Proxyconn reserves the right
`to request such a finding at time of trial.
`29.
`To the extent necessary, Proxyconn has marked its products pursuant
`
`to 35 U.S.C. § 287(a).
`30.
`As a result of HP's infringement of the '717 patent, Proxyconn has
`suffered monetary damages
`in an amount
`adequate to compensate
`for BP's
`infringement, but in no event less than a reasonable royalty for the use made of the
`invention by BP,
`together with interest and costs as fixed by the Court, an,4
`Proxyconn will continue to suffer damages in the future unless HP's infringing
`activities are enjoined by this Court.
`31.
`Unless a permanent
`injunction is issued enjoining HP and its agents,
`servants, employees,
`representatives,
`affiliates, and all others acting or in active
`concert
`therewith from infringing the '717 patent, Proxyconn will be greatly and
`
`irreparably harmed.
`
`COUNT III
`of U.S. Patent No. 6,757,717 Against Acer)
`(Infringement
`Acer has been and still is directly (literally and under the doctrine of
`32.
`infringing at least claims 1, 10, 11 and 22 of the '717 patent, literally
`equivalents)
`and under the doctrine of equivalents, by making, using, selling, offering to sell, ,£~
`include a sender
`importing, without
`license or authority, computer systems that
`computer and a receiver computer communicating through a network, with each
`computer equipped with a method for creating digital digests on data and the
`receiving computer including a means for comparing digital digests.
`In particular,
`these computer systems contain software including, but not limited to, the Remote
`Differential Compression
`("RDC")
`technology
`used in at
`least Microsoft's
`Windows Server 2003 R2, Windows Server 2008, Windows Small Business Server
`2003, Windows Small Business Server 2008, Windows Small Business Server
`
`10
`SECOND AMENDED CONSOLIDATED COMPLAINT
`
`Page 11 of 34
`
`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
`
`f-<
`
`<(
`
`::Q
`
`~0
`
`~0:
`
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`xo
`(/)
`
`~~
`
`

`

`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 12 of 52 Page ID #:790
`
`2011, Windows XP with Service Pack 3, Windows Vista, and Windows 7
`k ..
`
`operating systems.
`33.
`For example, Acer directly infringes claims 1 and 10 by making?
`selling, offering to sell or importing, without
`license or authority,
`tile
`using,
`computer systems and software described above to its customers.
`34.
`As another example, on information and belief, Acer directly infringes
`claims 11 and 22 by using Microsoft's DFS Replication product on its internal
`servers, thereby practicing the claimed methods.
`Indeed, Acer markets the ability
`See
`to
`use
`Microsoft's
`DFS
`Replication
`on
`its
`servers.
`http://static.acer. com/up/Resourcel AcerlS torage/SANI AN 1600 FIIDocs/2 01 10408
`IAN1600%20F 1%20Longspecs%20US%2004
`11 II.pdf, at 3-4.
`35.
`Attached as Exhibit B to this complaint
`is an exemplary chart
`illustrating how Acer's making, using,
`selling, offering to sell, or importing,
`without
`license or authority, of its computer systems and software described aboy~
`infringes claims 1, 10, 11 and 22 of the '717 patent.
`36.
`Acer has been and still is indirectly infringing, by way of inducing
`infringement by others of the '717 patent, by, among other things, making, using,
`importing, offering for sale, and/or selling, without
`license or authority, personal
`computers and servers for use in systems that thereby fall within the scope of at
`least claims 1, 10, 11 and 22 of the '717 patent. Such personal computers and
`servers include a sender computer and a receiver computer communicating through
`a network, with each computer equipped with a method for creating digital digests
`on data and the receiving computer
`including a means for comparing digital
`these computer systems contain software including, but ~?~~
`digests.
`In particular,
`limited to, the Remote Differential Compression ("RDC") technology used in :~~
`least Microsoft's Windows Server 2003 R2, Windows Server 2008, Windows
`Small Business Server 2003, Windows Small Business Server 2008, Windows
`Small Business Server 2011, Windows XP with Service Pack 3, Windows Vista,
`
`11
`SECOND AMENDED CONSOLIDATED COMPLAINT
`
`Page 12 of 34
`
`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
`
`f-
`~co
`;2
`
`0?3
`f-
`C/}
`
`~0~
`
`-<
`v:l
`C/}::J
`~
`
`

`

`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 13 of 52 Page ID #:791
`
`and Windows 7 operating systems. Acer induces its customers and end users to
`directly infringe by inducing or encouraging
`the use of the infringing RDC
`See
`technology,
`http://static.acer.com/up/Resource/AceriStorage/SAN/
`AN 1600 F IIDocs/20 110408
`IAN 1600%20F] %20Longspecs%20US%2004
`11 lI.pdt:
`at 3-4.
`Since at least
`Inc. v. Acer
`in Proxyconn,
`November 3, 2011, when the original
`complaint
`America Corporation, Case No.
`l1-cv-1684- DOC was
`filed, Acer has had
`knowledge of the '717 patent and, by continuing the actions described above, has
`had the specific intent to, or were willfully blind to the fact that its actions would,
`See
`induce
`infringement
`of
`the
`'717
`patent.
`http://static,acer,com/up/Resource/Acer/Storage/SAN/
`AN 1600 F IlDocs/?O 110408
`IAN 1600%20F 1%20Longspecs%20US%2004
`11 II.pdf,
`at
`3-4.
`Thus,
`by
`making, using, importing, offering for sale, and/or selling such personal computers
`and servers, Acer has injured Proxyconn and is thus liable to Proxyconn for
`infringement of the '717 patent under 35 U.S.C. § 271(b).
`is indirectly infringing, by way gf
`37.
`Acer has also been and still
`contributing to the infringement by others of the '717 patent, by, among other
`license
`things, making, using, importing, offering for sale, and/or selling, without
`or authority, systems that thereby fall within the scope of at least claims 1, 10, 11
`and 22 of the '717 patent. Such personal computers and servers include a sender
`computer and a receiver computer communicating through a network, with each
`computer equipped with a method for creating digital digests on data and the
`receiving computer including a means for comparing digital digests.
`In particular,
`these computer systems contain software including, but not limited to, the Remote
`Differential Compression
`("RDC")
`technology
`used in at
`least Microsoft's
`Windows Server 2003 R2, Windows Server 2008, Windows Small Business Server
`2003, Windows Small Business Server 2008, Windows Small Business Server
`2011, Windows XP with Service Pack 3, Windows Vista, and Windows, J
`12
`SECOND AMENDED CONSOLIDATED COMPLAINT
`
`Page 13 of 34
`
`::\ ~.
`
`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
`
`E--<
`
`<t::co
`;2
`
`~
`E--<
`v:
`
`~0~
`
`~
`r.r.J
`r.r.J
`
`r
`
`~~
`
`

`

`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 14 of 52 Page ID #:792
`
`to its customers directly infringing by
`Acer contributes
`operating systems.
`See
`its
`infringing RDC technology.
`inducing
`or encouraging
`the use of
`http://static.acer.com/up/Resource/Acer/Storage/SAN/
`AN 1600 FlIDocs/2011
`0408
`JAN1600%20Fl %20Longspecs%20USolo2004
`11 11.pdt: at 3-4. Acer's systems
`and software are a material part of the invention, and are especially made or
`especially adapted for use in the infringement of '717 patent and are not a staple
`article or commodity of commerce
`suitable for substantial noninfringing uses.
`in Proxyconn, Inc. v,:
`Since at least November 3, 2011, when the original complaint
`Acer America Corporation, Case No.
`ll-cv-1684-DOC was filed, Acer has had
`knowledge of the '717 patent and, by continuing the actions described above, has
`had the specific intent to, or were willfully blind to the fact that its actions would,
`See
`induce
`infringement
`of
`the
`'717
`patent.
`AN 1600 F 1IDocsJ20 11 0408
`http://static.acer.com/up/Resource/Acer/Storage/SAN/
`IAN 1600%20F 1%20Longspecs%20US%2004
`11 II.pdf,
`at 3-4.
`Thus,
`by
`making, using, importing, offering for sale, and/or selling such software, Acer has
`injured Proxyconn and is thus liable to Proxyconn for infringement of the '717
`patent under 35 U.S.C. § 271(c).
`learned in discovery show that Acer's
`facts
`38.
`To the extent
`that
`infringement of the '717 patent is or has been willful, Proxyconn reserves the right
`to request such a finding at time of trial.
`To the extent necessary, Proxyconn has marked its products pursuant
`39.
`to 35 U.S.C. § 287(a).
`40.
`As a result of Acer's infringement of the '717 patent, Proxy conn has
`suffered monetary damages
`in an amount adequate to compensate
`for Acer's
`infringement, but in no event less than a reasonable royalty for the use made of the
`invention by Acer,
`together with interest and costs as fixed by the Court, and
`Proxyconn will continue to suffer damages in the future unless Acer's infringing
`activities are enjoined by this Court.
`
`13
`SECOND AMENDED CONSOLIDATED COMPLAINT
`
`Page 14 of 34
`
`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
`
`f-
`Xl
`
`~!
`
`~~
`
`f-
`r/)
`
`~0~
`
`~v
`
`.l
`r/)
`~
`
`

`

`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 15 of 52 Page ID #:793
`
`injunction is issued enjoining Acer and its agents,
`Unless a permanent
`41.
`servants, employees,
`representatives,
`affiliates, and all others acting or in active
`concert
`therewith from infringing the '717 patent, Proxyconn will be greatly arid,
`
`irreparably harmed.
`
`COUNT IV
`(Infringement of U.S. Patent No. 6,757,717 Against Dell)
`Dell has been and still is directly (literally and under the doctrine of
`42.
`infringing at least claims 1, 10, 11 and 22 of the '717 patent, literally
`equivalents)
`and under the doctrine of equivalents, by making, using, selling, offering to sell, or
`importing, without
`license or authority, computer systems that
`include a sender
`computer and a receiver computer communicating through a network, with each
`computer equipped with a method for creating digital digests on data and the
`receiving computer including a means for comparing digital digests.
`In particular,
`these computer systems contain software including, but not limited to, the Remote
`Differential Compression
`("RDC")
`technology
`used in at
`least Microsoft's
`Windows Server 2003 R2, Windows Server 2008, Windows Small Business Server
`2003, Windows Small Business Server 2008, Windows Small Business Server
`2011, Windows XP with Service Pack 3, Windows Vista, and Windows 7
`operating systems.
`43.
`For example, Dell directly infringes claims 1 and 10 by making,
`selling, offering to sell or importing, without
`license or authority,
`the
`using,
`computer
`systems and software described above to its customers.
`Indeed, Dell
`on its servers. See
`markets
`the ability to use Microsoft's DFS Replication
`http://content.dell.com/us/en/business/d/business~solutions~power~enIDocument~
`~ps 1q10-20100266-
`Sherbak.pdf.aspx?c=us&cs=OWR08&I=en&s=bsd&redirect=
`
`.
`
`t-··-!
`
`1.
`
`14
`SECOND AMENDED CONSOLIDATED COMPLAINT
`
`Page 15 of 34
`
`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
`
`r-
`
`~m
`
`~~
`
`r-
`u:
`
`~0~
`
`-<
`
`rr/)
`r/)~
`~
`
`

`

`Case 8:11-cv-01681-DOC-JPR Document 77 Filed 07/16/12 Page 16 of 52 Page ID #:794
`
`As another example, on information and belief, Dell directly infringes
`44.
`claims 11 and 22 by using Microsoft's DFS Replication product on its internal
`servers, thereby practicing the claimed methods.
`IS an exemplary chain
`45.
`