Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 1 of 33 PageID #:1751
`
`IN THE UNITED STATES DISTRICT COURT FOR THE
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`OPINIONLAB, INC.,
`
`Plaintiff,
`
`v.
`
`QUALTRICS LABS, INC.,
`QUALTRICS, LLC,
`
`Defendants.
`
`
`
`Civil Action No. 13-CV-1574
`
`(consolidated with Civil Action
`No. 12-CV-5662)
`
`Judge Harry D. Leinenweber
`Magistrate Judge Jeffrey Cole
`
`JURY TRIAL DEMANDED
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`SECOND AMENDED COMPLAINT
`
`Plaintiff OpinionLab, Inc. (hereinafter “Plaintiff or “OpinionLab”) by its counsel, Paul
`
`Hastings LLP, for its Second Amended Complaint for injunctive relief, damages, and attorneys’
`
`fees and costs against Qualtrics Labs, Inc. and Qualtrics, LLC (hereinafter collectively
`
`“Defendant” or “Qualtrics Labs”) alleges as follows:
`
`I.
`
`NATURE OF THE ACTION
`
`1.
`
`This is a case for willful patent infringement under the Patent Act, 35 U.S.C. § 1,
`
`et seq.
`
`2.
`
`Plaintiff OpinionLab is a pioneer and industry leader in assisting international
`
`corporations, prestigious institutions of higher learning, and numerous public service agencies in
`
`collecting and analyzing data regarding consumer experiences with respect to websites, mobile
`
`platforms, “brick-and-mortar” stores, and consumer products and services. OpinionLab has a
`
`stellar reputation, has received numerous awards, and is widely regarded as one of the most
`
`sophisticated and advanced businesses operating in this highly competitive technological space.
`
`
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`- 1 -
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`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 2 of 33 PageID #:1752
`
`OpinionLab owns numerous patents, copyrights, and trademarks, and zealously guards and
`
`enforces those intellectual proprietary rights against infringers.
`
`3.
`
`Defendant Qualtrics Labs is in direct competition with OpinionLab. OpinionLab
`
`has become aware that Qualtrics Labs, in providing its competing services to several companies
`
`and their websites, including sears.com and others, and has intentionally and willfully infringed
`
`numerous of OpinionLab’s United States Patents. In so doing, Qualtrics Labs intentionally and
`
`willfully copied, or induced its customers to copy, OpinionLab’s proprietary, Internet-based
`
`software code representing particular embodiments of at least portions of its patented
`
`technology.
`
`4.
`
`OpinionLab seeks permanent injunctive relief and damages, attorneys’ fees, and
`
`all other relief available at law or equity.
`
`II.
`
`PARTIES, JURISDICTION, AND VENUE
`
`5.
`
`OpinionLab is a Delaware corporation with its principal place of business in this
`
`judicial district located at 600 Central Ave., Suite 265, Highland Park, Illinois. OpinionLab is
`
`duly registered to conduct business in Illinois.
`
`6.
`
`Qualtrics Labs, Inc. is a Utah corporation with its principal place of business
`
`located at 1377 S. 1140 E, Orem, Utah.
`
`7.
`
`Qualtrics, LLC is a Delaware limited liability company with its principal place of
`
`business located at 400 W. Qualtrics Dr., Ste. 100, Provo, Utah. On information and belief,
`
`Qualtrics, LLC is owned, in part, by Qualtrics Labs, Inc. and is the operating entity that
`
`maintains ownership and control of the Qualtrics Labs’ products identified herein.
`
`8.
`
`This action arises under the patent laws of the United States pursuant to 35 U.S.C.
`
`§ 1, et seq. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a).
`
`
`
`- 2 -
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`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 3 of 33 PageID #:1753
`
`9.
`
`On information and belief, Qualtrics Labs is subject to this Court’s jurisdiction
`
`because it has transacted business in the District and in the State of Illinois. Specifically,
`
`Qualtrics Labs either directly and/or through intermediaries ships, distributes, offers for sale, and
`
`sells (including via the provision of such services over the Internet) infringing products and
`
`services in this District to Sears Holdings Management Corporation, as well as others.
`
`10.
`
`Venue is proper in this district under 28 U.S.C. § 1391.
`
`III.
`
`FACTS SUPPORTING CAUSES OF ACTION
`
`A.
`
`OpinionLab and Its Intellectual Property Rights
`
`11.
`
`OpinionLab provides online user feedback and web page analytics to clients
`
`located throughout the world. OpinionLab’s “Online User Feedback Technology” allows
`
`OpinionLab to collect and analyze data gathered from consumers regarding their online
`
`experiences with respect to a given website. Hundreds of clients license the Online User
`
`Feedback Technology from OpinionLab because of its known track record of assisting
`
`companies to dramatically improve their online offerings and enhance the end user’s overall
`
`website experience.
`
`12.
`
`OpinionLab has been operating for over a decade in this technological space.
`
`OpinionLab’s Online User Feedback Technology has been the subject of numerous awards,
`
`noted industry recognitions, and positive commentary by third parties and clients alike. For
`
`example, an article in Crain’s Chicago Business listed OpinionLab as second in Chicago-based
`
`companies with the most impressive patent portfolios. A true and correct copy of the article as it
`
`appears on www.chicagobusiness.com is attached hereto as Exhibit A.
`
`
`
`- 3 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 4 of 33 PageID #:1754
`
`13. Many of OpinionLab’s clients are “Fortune 500” companies with extensive
`
`business operations throughout the world. Nearly half of the “Fortune 50” companies are
`
`OpinionLab clients.
`
`14.
`
`The central component of OpinionLab’s Online User Feedback Technology
`
`includes OpinionLab’s proprietary JavaScript OnlineOpinion Computer Software Code (the
`
`“OpinionLab OnlineOpinion Software Code”) authored by OpinionLab employees and owned by
`
`OpinionLab. OpinionLab registered the copyright in the original version of the OpinionLab
`
`OnlineOpinion Software Code, as well as subsequent updates and enhancements thereto. True
`
`and correct copies of the U.S. Copyright Registrations corresponding to the OnlineOpinion
`
`Software Code are attached hereto as Exhibit B. These U.S. Copyright Registrations include the
`
`code blatantly copied by Qualtrics Labs, or its customers through its inducement, as described
`
`herein.
`
`15.
`
`Another
`
`important component of OpinionLab’s Online User Feedback
`
`Technology is the “[+]” interactive feedback icons that are placed on OpinionLab’s customers’
`
`websites. By clicking on a [+] feedback icon, the end user launches the OpinionLab electronic
`
`comment card. Due to the widespread licensed use of OpinionLab’s Online User Feedback
`
`Technology (including the [+] feedback icons), the [+] feedback icons are ubiquitous and appear
`
`prominently on some of the most heavily-visited websites in the world. The [+] feedback icons
`
`appear as a static [+] image or a rotating [+] image. The [+] feedback icons are federally
`
`registered trademarks with the United States Patent and Trademark Office and bear U.S.
`
`Trademark Registration Nos. 3,665,615 and 3,014,484. U.S. Trademark Registration No.
`
`3,014,484 is incontestable and, as such, is conclusive evidence of OpinionLab’s ownership of the
`
`mark, among other things. True and correct copies of the Certificates of Registration for the [+]
`
`
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`- 4 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 5 of 33 PageID #:1755
`
`feedback icons are attached hereto as Exhibit C. The [+] feedback icons represent the
`
`tremendous goodwill and reputation of OpinionLab and its Online User Feedback Technology.
`
`16.
`
`One common example illustrating how OpinionLab’s Online User Feedback
`
`Technology operates can be seen on the OpinionLab website, www.opinionlab.com. The
`
`OpinionLab electronic comment card is opened by an end user by clicking on the [+] feedback
`
`icon on the right side of the web page, as depicted in the following screen shot:
`
`
`
`17.
`
`The user then provides feedback on the web page through the OpinionLab
`
`electronic comment card, which OpinionLab then analyzes for reporting to the operator of the
`
`website (e.g., OpinionLab itself in this example).
`
`18.
`
`The OpinionLab OnlineOpinion Software Code generates the “look and feel” of
`
`the OpinionLab electronic comment card. OpinionLab has expended a considerable amount of
`- 5 -
`
`
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 6 of 33 PageID #:1756
`
`time and energy in selecting and arranging the layout, drop down menu choices, and various
`
`details and fields that appear on its electronic comment cards. Some typical embodiments of
`
`OpinionLab’s electronic comment card generated by the OpinionLab OnlineOpinion Software
`
`Code are depicted in the following cards from fingerhut.com and cancer.org, respectively:
`
`
`
`
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`- 6 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 7 of 33 PageID #:1757
`
`
`
`19.
`
`OpinionLab’s Online User Feedback Technology is protected by several patents
`
`in the U.S. and abroad. The U.S. Patents that cover the OpinionLab Online User Feedback
`
`Technology include, but are not limited to, the following: U.S. Patent 6,421,724 (“the ’724
`
`Patent”); U.S. Patent 6,606,581 (“the ’581 Patent”); U.S. Patent 7,085,820 (“the ’820 Patent”);
`
`U.S. Patent 7,370,285 (“the ’285 Patent”); U.S. Patent 8,024,668 (“the ’668 Patent”); and U.S.
`
`Patent 8,041,805 (“the ’805 Patent”) (collectively the “OpinionLab Patents”). True and correct
`
`copies of the OpinionLab Patents are attached hereto as Exhibits D-I.
`
`20.
`
`OpinionLab has invested tremendous sums of money and untold hours of time in
`
`developing, updating, and licensing the Online User Feedback Technology. This technology
`
`represents a significant financial asset to OpinionLab and is the source of substantial revenue to
`
`OpinionLab.
`
`
`
`- 7 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 8 of 33 PageID #:1758
`
`B.
`
`Qualtrics Labs’ Acts of Intentional Copying
`
`21.
`
`In April 2009, OpinionLab entered into a “Master Services” and “Statement of
`
`Work” Agreement (the “Agreement”) with Sears Holdings Management Corporation (“Sears”).
`
`Pursuant to that Agreement, OpinionLab licensed its OpinionLab OnlineOpinion Software Code
`
`to Sears so that users of its webpage could provide feedback through OpinionLab’s online,
`
`electronic comment card about their respective online experiences at sears.com and kmart.com.
`
`At the end of 2011, Sears cancelled the aforementioned Agreement with OpinionLab.
`
`22.
`
`Prior to Sears terminating the Agreement, the OpinionLab OnlineOpinion
`
`Software Code ran in the “background” of the aforementioned websites and controlled several
`
`operations including: (a) the process by which the website’s visitors accessed the electronic
`
`comment card; and (b) the process by which the collected data was stored and provided to
`
`OpinionLab for its review and analysis.
`
`23.
`
`At some point after Sears cancelled the Agreement with OpinionLab, Qualtrics
`
`Labs began providing online customer comment feedback services to sears.com and kmart.com.
`
`In doing so, Qualtrics Labs copied, or induced its customers to copy, OpinionLab’s proprietary
`
`OpinionLab OnlineOpinion Software Code and online customer comment card.
`
`24. Much like the OpinionLab online comment cards, Qualtrics Labs’ online
`
`comment cards are opened when a viewer/user of a web page clicks the icon to provide
`
`feedback, as shown in the example below from the sears.com home page:
`
`
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`- 8 -
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`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 9 of 33 PageID #:1759
`
`
`
`25.
`
`Qualtrics Labs copied, or induced its customer to copy, the OpinionLab
`
`OnlineOpinion Software Code for opening the comment card window on the sears.com web
`
`page, among others.
`
`26.
`
`Attached as Exhibit J is a copy of the source code of a recent version of the
`
`Qualtrics Labs software code that ran in the background of the sears.com website (the “Qualtrics
`
`Labs Code”). The Qualtrics Labs Code was accessed by using a Microsoft Internet Explorer
`
`browser, logging on to sears.com, and clicking on the “View” tab followed by clicking on
`
`“Source” in the resulting drop down menu. When the OpinionLab OnlineOpinion Software
`
`Code is compared to the Qualtrics Labs Code, it is unmistakably clear that the Qualtrics Labs
`
`
`
`- 9 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 10 of 33 PageID #:1760
`
`Code contains a virtually identical copy of substantial portions of the proprietary OpinionLab
`
`OnlineOpinion Software Code.
`
`27.
`
`At least with respect to the Qualtrics Labs Code used on the sears.com website,
`
`Qualtrics Labs slavishly copied, or induced its customer to copy, the variables and the sequence
`
`of the variables from the OpinionLab OnlineOpinion Software Code.
`
`28.
`
`Qualtrics Labs did not coincidently come up with the same variables, and use
`
`them in the same order, as the OpinionLab OnlineOpinion Software Code. Rather, Qualtrics
`
`Labs surreptitiously, intentionally, willfully, and maliciously copied, or induced its customer to
`
`copy, the OpinionLab OnlineOpinion Software Code.
`
`29.
`
`Sometime subsequent to launching the Qualtrics Labs Code that ran behind the
`
`sears.com website, the copied code was modified. But even this new version of Qualtrics Labs’
`
`code (the “Current Qualtrics Labs Code”) copies key aspects of the OpinionLab OnlineOpinion
`
`Software Code. A copy of the Current Qualtrics Labs Code, as of the date of the original
`
`Complaint, is attached as Exhibit K.
`
`30.
`
`Sears owns K-Mart and, just like with the sears.com website, the kmart.com
`
`website also uses Qualtrics Labs comment cards. A copy of the Current Qualtrics Labs Code
`
`running on the kmart.com website, as of the date of the original Complaint, is attached as Exhibit
`
`L.
`
`31.
`
`Qualtrics Labs’ act of copying, or inducing its customers to copy, the OpinionLab
`
`OnlineOpinion Software Code is indisputable, and was intentional, knowing, willful, and
`
`malicious.
`
`32.
`
`The intentional, knowing, willful, and malicious copying by Qualtrics Labs, or by
`
`its customers through its inducement, did not stop with copying the OpinionLab OnlineOpinion
`
`
`
`- 10 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 11 of 33 PageID #:1761
`
`Software Code. Qualtrics Labs also copied, or induced its customers to copy, the “look and feel”
`
`of at least two of OpinionLab’s electronic comment cards down to very minute detail, as shown
`
`by the following comparisons:
`
`
`
`
`
`- 11 -
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`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 12 of 33 PageID #:1762
`
`
`
`33.
`
`As the above comparison shows, Qualtrics Labs created, or induced its customers
`
`to create, virtually identical copies of these OpinionLab comment cards, all the way down to
`
`copying the exact text, layout, design, comment fields, and drop down choices.
`
`34. Moreover, during the copying of the OpinionLab OnlineOpinion Software Code
`
`and the copying of the OpinionLab electronic comment cards as described above, Qualtrics Labs
`
`removed or otherwise chose not to include the reference to “opinionlab.com,” and instead
`
`inserted its own “qualtrics.com,” or induced its customers to do so. Qualtrics Labs intentionally
`
`did so in order to conceal, and to facilitate, its copying of the OpinionLab OnlineOpinion
`
`Software Code.
`
`35.
`
`Further, in copying the OpinionLab electronic comment cards from the cancer.org
`
`and fingerhut.com websites, Qualtrics Labs removed or otherwise chose not to include the
`
`
`
`- 12 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 13 of 33 PageID #:1763
`
` logo, or induced its customers to do so. Qualtrics Labs intentionally did so in
`
`order to conceal, and to facilitate, its copying of the OpinionLab electronic comment card.
`
`C.
`
`Qualtrics Labs’ Acts of Patent Infringement
`
`-- Qualtrics Labs’ Knowledge of the OpinionLab Patents --
`
`36.
`
`Through its copying of the OpinionLab OnlineOpinion Software Code, Qualtrics
`
`Labs was exposed to a patent notice that disclosed that the OpinionLab OnlineOpinion Software
`
`Code was covered by various patents owned by OpinionLab.
`
`37.
`
`For example, OpinionLab included the following patent notice in copies of its
`
`OpinionLab OnlineOpinion Software Code: “This product and other products of OpinionLab,
`
`Inc. are protected by U.S. Patent No. 6606581, 6421724, 6785717 B1 and other patents
`
`pending.”
`
`38.
`
`This patent notice specifically mentions two of the OpinionLab patents identified
`
`in this complaint – the ’724 and ’581 Patents, and additionally notes that there are “other patents
`
`pending.”
`
`39.
`
`Further, the OpinionLab comment cards have an “About OpinionLab” link, such
`
`as shown in the example below for the OpinionLab website:
`
`
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`- 13 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 14 of 33 PageID #:1764
`
`40.
`
`The “About OpinionLab” link links to a web page on the OpinionLab website
`
`www.opinionlab.com/company/about/, which has the following patent notice:
`
`
`
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`- 14 -
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`
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 15 of 33 PageID #:1765
`
`41.
`
`The above patent notice lists each of the OpinionLab Patents specified in this
`
`Second Amended Complaint.
`
`42.
`
`By virtue of its copying of the OpinionLab online comment cards, or its
`
`inducement of its customers to do so, Qualtrics had notice of, or was willfully blind to, the
`
`OpinionLab Patents.
`
`-- American Cancer Society --
`
`43.
`
`The American Cancer Society maintains a website having the homepage
`
`www.cancer.org, which presently and/or in the past used Qualtrics Labs for online customer
`
`comment feedback services.
`
`44.
`
`The pages of the cancer.org website depict OpinionLab’s [+] feedback icon
`
`toward the bottom right of the respective pages:
`
`45.
`
`OpinionLab’s [+] feedback icons appear on multiple web pages of the cancer.org
`
`
`
`website.
`
`46. When the American Cancer Society was a customer of OpinionLab, OpinionLab
`
`delivered the image of its [+] feedback icon to www.cancer.org in a file OpinionLab named as
`
`“sm_545454_oo.gif.” Not only is Qualtrics Labs using OpinionLab’s [+] feedback icon,
`
`Qualtrics Labs is also using the exact same file with the exact same file name to deliver this mark
`
`to www.cancer.org. This can be seen by going to www.cancer.org, right-clicking on the [+]
`
`feedback icon in the bottom right-hand corner of the page, and choosing “save as” or “save
`
`picture as” from the pop-out menu options. The default file name is exactly the same,
`
`“sm_545454_oo.gif.” This shows that Qualtrics Labs did not even attempt to design its own [+]
`
`
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`- 15 -
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`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 16 of 33 PageID #:1766
`
`feedback icon but instead copied, or induced its customer to copy, the exact same file to ensure it
`
`copied OpinionLab’s [+] feedback icon.
`
`47.
`
`The following online comment card is displayed for the visitor of the cancer.org
`
`website upon the visitor clicking on OpinionLab’s [+] feedback icon:
`
`48.
`
`As can be seen in the above image, this comment card indicates that it is
`
`“Powered By Qualtrics” and includes both (a) a field where the user can enter open-ended
`
`
`
`
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`- 16 -
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`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 17 of 33 PageID #:1767
`
`comments about the web page, and (b) a multi-level rating scale where the user can provide a
`
`rating for the web page for various characteristics of the web page (i.e., “Content” and “Design”)
`
`and the “Overall” quality of the web page.
`
`49.
`
`As shown above, the multi-level rating scale includes a positive rating (5-
`
`Excellent), a neutral rating (3), and a negative rating (1-Poor).
`
`50.
`
`Also
`
`as
`
`shown
`
`above,
`
`the URL
`
`for
`
`the
`
`comment
`
`card
`
`is
`
`cancer.qualtrics.com/SE/?SID=SV_9Zb8WWpmrgYKo2p, which is for a Qualtrics Labs web
`
`server. This shows that the Qualtrics online comment card is served by a different web server –
`
`one from Qualtrics Labs – than the pages of the cancer.org website.
`
`51.
`
`The source code for the cancer.org web pages (obtained by right-clicking on the
`
`cancer.org website and selecting “View Source” using a Microsoft Internet Explorer browser), as
`
`of the date of the original Complaint, is provided as Exhibit M hereto. Similar to what is
`
`described above, this code contains the following patent notice from OpinionLab:
`
`52.
`
`The functionality as detailed above evidences direct and/or indirect infringement
`
`of several of the OpinionLab Patents, including the ’724 Patent, the ’581 Patent, the ’820 Patent,
`
`the ’285 Patent, and the ’668 Patent. For indirect infringement, the direct infringers of the
`
`
`
`
`
`- 17 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 18 of 33 PageID #:1768
`
`OpinionLab Patents include end-users of the websites of Qualtrics Labs’ customers (e.g., end-
`
`users of the cancer.org website).
`
`-- CME Group --
`
`53.
`
`CME Group Inc. maintains a website having the homepage www.cmegroup.com,
`
`which presently and/or in the past used Qualtrics Labs for online customer comment feedback
`
`services.
`
`54.
`
`The pages of the cmegroup.com website have the following feedback icon toward
`
`the upper-right corner of the respective pages that launches, upon invocation, the Qualtrics
`
`online customer comment card:
`
`55.
`
`56.
`
`The above icon appears on multiple web pages of the cmegroup.com website.
`
`The following online comment card is displayed for the visitor of the
`
`cmegroup.com website upon invocation of the above feedback icon, on top of the cmegroup.com
`
`web page from which the feedback icon was invoked:
`
`
`
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`- 18 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 19 of 33 PageID #:1769
`
`
`
`57.
`
`As can be seen in the above image, this comment card includes both (a) a field
`
`where the user can enter open-ended comments about the web page, and (b) a multi-level rating
`
`scale where the user can provide a rating for the web page.
`
`58.
`
`As shown above, the multi-level rating scale includes a positive rating (5 = high),
`
`a neutral rating (3), and a negative rating (1 = low).
`
`59.
`
`Also
`
`as
`
`shown
`
`above,
`
`the URL
`
`for
`
`the
`
`comment
`
`card
`
`is
`
`http://cmegroup.qualtrics.com/SE/?SID=SV_7VgYr6gExpoRxDn, which is for a Qualtrics Labs
`
`web server. This shows that the Qualtrics online comment card is served by a different web
`
`server – one from Qualtrics Labs – than the pages of the cmegroup.com website.
`
`60.
`
`The functionality as detailed above evidences direct and/or indirect infringement
`
`of several of the OpinionLab Patents, including the ’724 Patent, the ’581 Patent, the ’820 Patent,
`
`the ’285 Patent, and the ’668 Patent. For indirect infringement, the direct infringers of the
`
`OpinionLab Patents include end-users of the websites of Qualtrics Labs’ customers (e.g., end-
`
`users of the cmegroup.com website).
`
`
`
`
`
`- 19 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 20 of 33 PageID #:1770
`
`-- Fingerhut --
`
`61.
`
`Bluestem Brands, Inc. maintains the website www.fingerhut.com, which presently
`
`and/or in the past used Qualtrics Labs for online customer comment feedback services.
`
`62.
`
`The pages of the www.fingerhut.com website have the following feedback icon
`
`that is maintained in the lower-right corner of the browser display for the respective pages
`
`regardless of user scrolling that launches, upon invocation, the Qualtrics online customer
`
`comment card:
`
`63.
`
`The above icon appears on multiple web pages of the www.fingerhut.com
`
`
`
`website.
`
`
`
`- 20 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 21 of 33 PageID #:1771
`
`64.
`
`The following online comment card is displayed for the visitor of the
`
`www.fingerhut.com website upon invocation of the above feedback icon, on top of the
`
`www.fingerhut.com web page from which the feedback icon was invoked.
`
`
`
`65.
`
`As can be seen in the above image, this comment card includes both (a) a field
`
`where the user can enter open-ended comments about the web page, and (b) a multi-level rating
`
`scale where the user can provide a rating for the web page for various characteristics of the web
`
`page (i.e., “Product Information,” “Look and Feel,” and “Ease of Use”) as well as the “Overall”
`
`quality of the web page.
`
`
`
`- 21 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 22 of 33 PageID #:1772
`
`66.
`
`As shown above, the multi-level rating scale includes a positive rating (5, with a
`
`smiley face), a neutral rating (3, with a face that is neither smiling nor frowning), and a negative
`
`rating (1, with a frowny face).
`
`67.
`
`Also
`
`as
`
`shown
`
`above,
`
`the URL
`
`for
`
`the
`
`comment
`
`card
`
`is
`
`https://bluestembrands.qualtrics.com/SE/?SID=SV_41le6U2PrJjvJad&Pagetype=site+section&P
`
`ageURL=http%3A%2F%2Fwww.fingerhut.com%2Fhome.jsp&Timeonsite=845%7C32&Custo
`
`merID=undefined&pagecount=3, which is for a Qualtrics Labs web server. This shows that the
`
`Qualtrics Online Comment Card is served by a different web server – one from Qualtrics Labs –
`
`than the pages of the fingerhut.com website.
`
`68.
`
`The functionality as detailed above evidences direct and/or indirect infringement
`
`of all of the OpinionLab Patents, including the ’724 Patent, the ’581 Patent, the ’820 Patent, the
`
`’285 Patent, the ’668 Patent, and the ’805 Patent. For indirect infringement, the direct infringers
`
`of the OpinionLab Patents include end-users of the websites of Qualtrics Labs’ customers (e.g.,
`
`end-users of the fingerhut.com website).
`
`IV. CAUSE OF ACTION
`
`COUNT I
`
`WILLFUL PATENT INFRINGEMENT IN VIOLATION OF 35 U.S.C. § 271
`
`A. INFRINGEMENT OF THE ’724 PATENT
`
`69.
`
`70.
`
`OpinionLab realleges and incorporates ¶¶ 1-67 above as if fully set forth herein.
`
`On July 16, 2002, the United States Patent and Trademark Office (“USPTO”)
`
`issued the ’724 Patent, entitled “Web Site Response Measurement Tool,” with the following
`
`named inventors: Rand B. Nickerson; Mark A. Treschl; Kathryn L. Kidd; and Matthew J.
`
`Crofoot. A true and correct copy of the ’724 Patent is provided as Exhibit D.
`
`
`
`- 22 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 23 of 33 PageID #:1773
`
`71.
`
`72.
`
`OpinionLab is the owner of the ’724 Patent by assignment.
`
`Qualtrics Labs is now and/or has been directly, indirectly, and/or by inducement
`
`infringing the ’724 Patent, literally and/or under the doctrine of equivalents, as proscribed by 35
`
`U.S.C. § 271, et. seq., by, without permission or authority from OpinionLab, selling, offering to
`
`sell, making, using, and/or inducing others to use and sell within the United States, including this
`
`District, products and/or components of products and/or services that infringe at least one claim
`
`of the ’724 Patent, through, but not limited to, Qualtrics Labs’ web page comment cards
`
`available on websites such as cancer.org, cmegroup.com, and fingerhut.com, examples of which
`
`are set forth above.
`
`73.
`
`For indirect infringement, the direct infringers of the OpinionLab Patents include
`
`end-users of the websites of Qualtrics Labs’ customers (e.g., cancer.org, cmegroup.com, and
`
`fingerhut.com websites).
`
`74.
`
`Qualtrics Labs had knowledge of or was willfully blind to the existence of the
`
`’724 Patent.
`
`75.
`
`Based on information and belief, Qualtrics Labs knew that its customers’ acts of
`
`providing the Qualtrics Labs’ online comment cards to the end-users constituted infringement of
`
`the ’724 Patent.
`
`76.
`
`Qualtrics Labs is not, and has not been at any time, licensed under the ’724
`
`Patent.
`
`77.
`
`Upon information and belief, Qualtrics Labs’ foregoing acts of infringement have
`
`been and continue to be willful and deliberate.
`
`
`
`- 23 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 24 of 33 PageID #:1774
`
`78.
`
`OpinionLab has been damaged by the foregoing acts of infringement of the ’724
`
`Patent by Qualtrics Labs and will continue to be damaged by such infringement unless enjoined
`
`by this Court.
`
`79.
`
`80.
`
`B. INFRINGEMENT OF THE ’581 PATENT
`
`OpinionLab realleges and incorporates ¶¶ 1-77 above as if fully set forth herein.
`
`On August 12, 2003, the USPTO issued the ’581 Patent, entitled “System and
`
`Method for Measuring and Reporting User Reactions to Particular Web Pages of a Website,”
`
`with the following named inventors: Rand B. Nickerson; Mark A. Treschl; Kathryn L. Kidd;
`
`Matthew J. Crofoot; A. Gregory Samata; and David E. Mason. A true and correct copy of the
`
`’581 Patent is provided as Exhibit E.
`
`81.
`
`82.
`
`OpinionLab is the owner of the ’581 Patent by assignment.
`
`Qualtrics Labs is now and/or has been directly, indirectly, and/or by inducement
`
`infringing the ’581 Patent, literally and/or under the doctrine of equivalents, as proscribed by 35
`
`U.S.C. § 271, et. seq., by, without permission or authority from OpinionLab, selling, offering to
`
`sell, making, using, and/or inducing others to use and sell within the United States, including this
`
`District, products and/or components of products and/or services that infringe at least one claim
`
`of the ’581 Patent, through, but not limited to, Qualtrics Labs’ web page comment cards
`
`available on websites such as cancer.org, cmegroup.com, and fingerhut.com, examples of which
`
`are set forth above.
`
`83.
`
`For indirect infringement, the direct infringers of the OpinionLab Patents include
`
`end-users of the websites of Qualtrics Labs’ customers (e.g., end-users of the cancer.org,
`
`cmegroup.com, and fingerhut.com websites).
`
`
`
`- 24 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 25 of 33 PageID #:1775
`
`84.
`
`Based on information and belief, Qualtrics Labs knew that its customers’ acts of
`
`providing the Qualtrics Labs’ online comment cards to the end-users constituted infringement of
`
`the ’581 Patent.
`
`85.
`
`Qualtrics Labs had knowledge of or was willfully blind to the existence of the
`
`’581 Patent.
`
`86.
`
`Qualtrics Labs is not, and has not been at any time, licensed under the ’581
`
`Patent.
`
`87.
`
`Upon information and belief, Qualtrics Labs’ foregoing acts of infringement have
`
`been and continue to be willful and deliberate.
`
`88.
`
`OpinionLab has been damaged by the foregoing acts of infringement of the ’581
`
`Patent by Qualtrics Labs and will continue to be damaged by such infringement unless enjoined
`
`by this Court.
`
`89.
`
`90.
`
`C. INFRINGEMENT OF THE ’820 PATENT
`
`OpinionLab realleges and incorporates ¶¶ 1-87 above as if fully set forth herein.
`
`On August 1, 2006, the USPTO issued the ’820 Patent, entitled “System and
`
`Method for Reporting to a Website Owner User Reactions to Particular Web Pages of a
`
`Website,” with the following named inventors: Rand B. Nickerson; Mark A. Treschl; Kathryn L.
`
`Kidd; Matthew J. Crofoot; A. Gregory Samata; and David E. Mason. A true and correct copy of
`
`the ’820 Patent is provided as Exhibit F.
`
`91.
`
`92.
`
`OpinionLab is the owner of the ’820 Patent by assignment.
`
`Qualtrics Labs is now and/or has been directly, indirectly, and/or by inducement
`
`infringing the ’820 Patent, literally and/or under the doctrine of equivalents, as proscribed by 35
`
`U.S.C. § 271, et. seq., by, without permission or authority from OpinionLab, selling, offering to
`
`
`
`- 25 -
`
`Qualtrics, LLC
`Exhibit 1011
`
`

`
`Case: 1:13-cv-01574 Document #: 85 Filed: 12/20/13 Page 26 of 33 PageID #:1776
`
`sell, making, using, and/or inducing others to use and sell within the United States, including this
`
`District, products and/or components of products and/or services that infringe at least one claim
`
`of the ’820 Patent, through, but not limited to Qualtrics Labs’ web page comment cards available
`
`on websites such as cancer.org, cmegroup.com, and fingerhut.com, examples of which are set
`
`forth above.
`
`93.
`
`For indirect infringement, the direct infringers of the OpinionLab Patents include
`
`end-users of the websites of Qualtrics Labs’ customers (e.g., end-users of the cancer.org,
`
`