Case 6:11-cv-00563-LED Document 1 Filed 11/01/11 Page 1 of 6 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`VirnetX Inc.,
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`vs.
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`Apple Inc.,
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`Plaintiff,
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`Defendant.
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`Civil Action No. 6:11-cv-563
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`§§§§§§§§§§§
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`PLAINTIFF VIRNETX INC.’S ORIGINAL COMPLAINT
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`Plaintiff VirnetX Inc. (“VirnetX”) files this Complaint against Defendant Apple Inc. for
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`patent infringement under 35 U.S.C. § 271 and in support thereof would respectfully show the
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`Court the following:
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`THE PARTIES
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`1.
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`Plaintiff VirnetX is a corporation organized and existing under the laws of the
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`State of Delaware, and maintains its principal place of business at 308 Dorla Court, Suite 206,
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`Zephyr Cove, Nevada 89448.
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`2.
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`Defendant Apple Inc. (“Apple” or “Defendant”) is a California corporation with
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`its principal place of business at 1 Infinite Loop, Cupertino, California 95014. On information
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`and belief, Apple regularly conducts and transacts business in Texas, throughout the United
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`States, and within the Eastern District of Texas, and as set forth below, has committed and
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`continues to commit, tortious acts of patent infringement within and outside of Texas and within
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`the Eastern District of Texas.
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`VIRNETX EXHIBIT 2001
`Apple v. VirnetX
`Trial IPR2014-00486
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`Page 1 of 6
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`
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`VirnetX Inc.,
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`vs.
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`Apple Inc.,
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`Plaintiff,
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`Defendant.
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`Civil Action No. 6:11-cv-563
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`§§§§§§§§§§§
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`
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`PLAINTIFF VIRNETX INC.’S ORIGINAL COMPLAINT
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`Plaintiff VirnetX Inc. (“VirnetX”) files this Complaint against Defendant Apple Inc. for
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`patent infringement under 35 U.S.C. § 271 and in support thereof would respectfully show the
`
`Court the following:
`
`THE PARTIES
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`1.
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`Plaintiff VirnetX is a corporation organized and existing under the laws of the
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`State of Delaware, and maintains its principal place of business at 308 Dorla Court, Suite 206,
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`Zephyr Cove, Nevada 89448.
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`2.
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`Defendant Apple Inc. (“Apple” or “Defendant”) is a California corporation with
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`its principal place of business at 1 Infinite Loop, Cupertino, California 95014. On information
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`and belief, Apple regularly conducts and transacts business in Texas, throughout the United
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`States, and within the Eastern District of Texas, and as set forth below, has committed and
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`continues to commit, tortious acts of patent infringement within and outside of Texas and within
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`the Eastern District of Texas.
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`VIRNETX EXHIBIT 2001
`Apple v. VirnetX
`Trial IPR2014-00486
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`Page 1 of 6
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`Case 6:11-cv-00563-LED Document 1 Filed 11/01/11 Page 2 of 6 PageID #: 2
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`JURISDICTION AND VENUE
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`3.
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`This is an action for patent infringement arising under the patent laws of the
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`United States, Title 35, United States Code. This Court has exclusive subject matter jurisdiction
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`over this case for patent infringement under 28 U.S.C. § 1338.
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`4.
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`Venue is proper in the Eastern District of Texas under 28 U.S.C. §§ 1391 and
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`1400(b).
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`5.
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`This Court has personal jurisdiction over Defendant. Defendant has conducted
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`and does conduct business within the State of Texas. Defendant, directly or through subsidiaries
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`or intermediaries (including distributors, retailers, and others), ships, distributes, offers for sale,
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`sells, and advertises (including the provision of an interactive web page) its products and/or
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`services in the United States, the State of Texas, and the Eastern District of Texas. Defendant,
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`directly and through subsidiaries or intermediaries (including distributors, retailers, and others),
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`has purposefully and voluntarily placed one or more of its infringing products and/or services, as
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`described below, into the stream of commerce with the expectation that they will be purchased
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`and used by consumers in the Eastern District of Texas. These infringing products and/or
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`services have been and continue to be purchased and used by consumers in the Eastern District
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`of Texas. Defendant has committed acts of patent infringement within the State of Texas and,
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`more particularly, within the Eastern District of Texas.
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`ASSERTED PATENT
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`6.
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`On November 1, 2011, United States Patent No. 8,051,181 (“the ‘181 patent”)
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`entitled “Method for Establishing Secure Communication Link Between Computers of Virtual
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`Private Network,” was duly and legally issued with Victor Larson, Robert Durham Short, III,
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`Edmund Colby Munger, and Michael Williamson as the named inventors after full and fair
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`McKool 401462v2
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`Page 2 of 6
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`Case 6:11-cv-00563-LED Document 1 Filed 11/01/11 Page 3 of 6 PageID #: 3
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`examination. VirnetX is the owner of all rights, title, and interest in and to the ’181 patent and
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`possesses all rights of recovery under the ’181 patent.
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`COUNT ONE
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`PATENT INFRINGEMENT BY APPLE
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`7.
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`VirnetX incorporates by reference paragraphs 1-6 as if fully set forth herein. As
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`described below, Apple has infringed and/or continues to infringe the ’181 patent.
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`8.
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`At least Apple’s iPhone 4, iPhone 4S, iPod Touch, iPad 2, and Macintosh
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`computers with the “Lion” operating system directly or indirectly infringe at least claims 1, 2, 4-
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`12, 17, 19, 21, 22, 24-29 of the ’181 patent. Apple makes, uses, sells, offers to sell, and imports
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`these products and thus directly infringes the ‘181 patent.
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`9.
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`Apple indirectly infringes the ’181 patent by contributing to infringement by
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`others, such as resellers and end-user customers, in accordance with 35 U.S.C. § 271(c), because
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`Apple offers to sell or sells within the United States a component of a patented machine,
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`manufacture, combination, or composition, or a material or apparatus for use in practicing a
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`patented process, constituting a material part of the invention, knowing the same to be especially
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`made or especially adapted for use in an infringement of such patent, and not a staple article or
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`commodity of commerce suitable for substantial non-infringing use.
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`10.
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`Apple indirectly infringes by inducing infringement by others, such as resellers
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`and end-user customers, in accordance with 35 U.S.C. § 271(b), because Apple actively induces
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`infringement of the ’181 patent by others, such as resellers and end-user customers.
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`11.
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`Apple has infringed and/or continues to infringe one or more claims of the ’181
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`patent as set forth above. Apple is liable for direct infringement, as well as indirect infringement
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`by way of inducement and/or contributory infringement, for the ’181 patent pursuant to 35
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`McKool 401462v2
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`Page 3 of 6
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`Case 6:11-cv-00563-LED Document 1 Filed 11/01/11 Page 4 of 6 PageID #: 4
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`U.S.C. § 271 (a), (b), (c), and/or (f) as set forth above. For VirnetX’s claims of indirect
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`infringement, Apple’s resellers, consultants, and/or end-user customers are direct infringers of
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`the ’181 patent.
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`12.
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`Apple’s acts of infringement have caused damage to VirnetX. VirnetX is entitled
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`to recover from Apple the damages sustained by VirnetX as a result of Apple’s wrongful acts in
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`an amount subject to proof at trial. In addition, the infringing acts and practices of Apple have
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`caused, are causing, and, unless such acts and practices are enjoined by the Court, will continue
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`to cause immediate and irreparable harm to VirnetX for which there is no adequate remedy at
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`law, and for which VirnetX is entitled to injunctive relief under 35 U.S.C. § 283.
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`13.
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`Apple has received actual notice of infringement by virtue of the filing of this
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`lawsuit.
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`DEMAND FOR JURY TRIAL
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`VirnetX hereby demands a jury for all issues so triable.
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`PRAYER FOR RELIEF
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`WHEREFORE, VirnetX prays for the following relief:
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`1.
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`A judgment that Apple has directly infringed the ’181 patent, contributorily
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`infringed the ’181 patent, and/or induced the infringement of the ’181 patent;
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`2.
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`A preliminary and permanent injunction preventing Apple and its respective
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`officers, directors, agents, servants, employees, attorneys, licensees, successors, and assigns, and
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`those in active concert or participation with any of them, from directly infringing, contributorily
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`infringing, and/or inducing the infringement of the ’181 patent;
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`3.
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`This case be found an exceptional case, entitling VirnetX to attorneys’ fees
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`incurred in prosecuting this action;
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`McKool 401462v2
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`Case 6:11-cv-00563-LED Document 1 Filed 11/01/11 Page 5 of 6 PageID #: 5
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`4.
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`A judgment and order requiring Defendant to pay VirnetX damages under 35
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`U.S.C. § 284, including supplemental damages for any continuing post-verdict infringement up
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`until entry of the final judgment, with an accounting, as needed, and treble damages for willful
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`infringement as provided by 35 U.S.C. § 284;
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`5.
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`A judgment and order requiring Defendant to pay VirnetX the costs of this action
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`(including all disbursements);
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`6.
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`A judgment and order requiring Defendant to pay VirnetX pre-judgment and post-
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`judgment interest on the damages awarded;
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`7.
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`A judgment and order requiring that in the event a permanent injunction
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`preventing future acts of infringement is not granted, that VirnetX be awarded a compulsory
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`ongoing licensing fee; and
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`8.
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`Such other and further relief as the Court may deem just and proper.
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`McKool 401462v2
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`Page 5 of 6
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`Case 6:11-cv-00563-LED Document 1 Filed 11/01/11 Page 6 of 6 PageID #: 6
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`DATED: November 1, 2011
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` Respectfully submitted,
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`McKOOL SMITH, P.C.
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`/s/ Douglas A. Cawley
`Douglas A. Cawley, Lead Attorney
`Texas State Bar No. 04035500
`E-mail: dcawley@mckoolsmith.com
`Luke F. McLeroy
`Texas State Bar No. 24041455
`E-mail: lmcleroy@mckoolsmith.com
`Bradley W. Caldwell
`Texas State Bar No. 24040630
`E-mail: bcaldwell@mckoolsmith.com
`Jason D. Cassady
`Texas State Bar No. 24045625
`E-mail: jcassady@mckoolsmith.com
`MCKOOL SMITH P.C.
`300 Crescent Court, Suite 1500
`Dallas, Texas 75201
`Telephone: (214) 978-4000
`Telecopier: (214) 978-4044
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`Sam F. Baxter
`Texas State Bar No. 01938000
`E-mail: sbaxter@mckoolsmith.com
`MCKOOL SMITH P.C.
`104 East Houston, Suite 300
`Marshall, Texas 75670
`Telephone: (903) 923-9000
`Telecopier: (903) 923-9099
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`Robert M. Parker
`Texas State Bar No. 15498000
`rmparker@pbatyler.com
`Robert Christopher Bunt
`Texas State Bar No. 00787165
`rcbunt@pbatyler.com
`PARKER, BUNT & AINSWORTH, P.C.
`100 East Ferguson, Suite 1114
`Tyler, Texas 75702
`Telephone: (903) 531-3535
`Telecopier: (903) 533-9687
`ATTORNEYS FOR PLAINTIFF VIRNETX INC.
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`McKool 401462v2
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`Page 6 of 6
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