Case 6:07-cv-00080-LED Document 25 Filed 04/05/07 Page 1 of 9 PageID #: 198
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`
`Case No. 607CV80 (TJW)
`
`
`
`Jury Trial Demanded
`
`
`
`§§§§§§§§§
`
`
`
`
`
`VirnetX Inc.
`
`Plaintiff
`
`vs.
`
`Microsoft Corporation
`
`Defendant
`
`PLAINTIFF VIRNETX INC.’S FIRST AMENDED COMPLAINT
`
`FOR PATENT INFRINGEMENT
`
`THE PARTIES
`
`1.
`
`Plaintiff VirnetX Inc. (“VirnetX”) is a corporation organized under the laws of the
`
`State of Delaware, having its principal place of business at 5615 Scotts Valley Drive, Suite 110,
`
`Scotts Valley, California 95066.
`
`2.
`
`Upon information and belief, defendant Microsoft Corporation (“Microsoft”) is a
`
`corporation organized under the laws of the State of Washington, having its principal place of
`
`business at One Microsoft Way, Redmond, Washington 98052. Microsoft is qualified to do
`
`business in the State of Texas, Filing No. 10404606, and has appointed Corporation Service
`
`Company, 701 Brazos Street, Suite 1050, Austin, Texas 78701, as its agent for service of process.
`
`JURISDICTION AND VENUE
`
`3.
`
`This is an action for patent infringement arising under the patent laws of the
`
`United States, 35 U.S.C. §§ 1 et seq. This Court has jurisdiction over this action pursuant to 28
`
`U.S.C. §§ 1331 and 1338(a).
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`Page 1 of 9
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`
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`VIRNETX EXHIBIT 2010
`Microsoft v. VirnetX
`Trial IPR2014-00558
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`
`Case No. 607CV80 (TJW)
`
`
`
`Jury Trial Demanded
`
`
`
`§§§§§§§§§
`
`
`
`
`
`VirnetX Inc.
`
`Plaintiff
`
`vs.
`
`Microsoft Corporation
`
`Defendant
`
`PLAINTIFF VIRNETX INC.’S FIRST AMENDED COMPLAINT
`
`FOR PATENT INFRINGEMENT
`
`THE PARTIES
`
`1.
`
`Plaintiff VirnetX Inc. (“VirnetX”) is a corporation organized under the laws of the
`
`State of Delaware, having its principal place of business at 5615 Scotts Valley Drive, Suite 110,
`
`Scotts Valley, California 95066.
`
`2.
`
`Upon information and belief, defendant Microsoft Corporation (“Microsoft”) is a
`
`corporation organized under the laws of the State of Washington, having its principal place of
`
`business at One Microsoft Way, Redmond, Washington 98052. Microsoft is qualified to do
`
`business in the State of Texas, Filing No. 10404606, and has appointed Corporation Service
`
`Company, 701 Brazos Street, Suite 1050, Austin, Texas 78701, as its agent for service of process.
`
`JURISDICTION AND VENUE
`
`3.
`
`This is an action for patent infringement arising under the patent laws of the
`
`United States, 35 U.S.C. §§ 1 et seq. This Court has jurisdiction over this action pursuant to 28
`
`U.S.C. §§ 1331 and 1338(a).
`
`Page 1 of 9
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`
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`VIRNETX EXHIBIT 2010
`Microsoft v. VirnetX
`Trial IPR2014-00558
`
`
`
`Case 6:07-cv-00080-LED Document 25 Filed 04/05/07 Page 2 of 9 PageID #: 199
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`4.
`
`This Court has personal jurisdiction over Microsoft. Microsoft conducts business
`
`and has committed acts of patent infringement and/or has contributed to and/or induced acts of
`
`patent infringement by others in this district and the State of Texas (as well as elsewhere in the
`
`United States).
`
`5.
`
`Microsoft has also previously availed itself to this judicial district by filing suit
`
`against other litigants in this district, including for example the following: Microsoft Corp. v.
`
`Butcher, No. 2:06-cv-00371-DF (E.D. Tex. filed Sept. 15, 2006); Autodesk Inc. and Microsoft
`
`Corp. v. C&D Robotics Inc., No. 1:99-cv-103 (E.D. Tex. filed Feb. 26, 1999).
`
`6.
`
`Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b), 1391(c)
`
`and 1400(b) because, among other things, Microsoft is subject to personal jurisdiction in this
`
`judicial district, has regularly conducted business in this judicial district, and certain of the acts
`
`complained of herein occurred in this judicial district.
`
`VIRNETX’S PATENTS-IN-SUIT
`
`7.
`
`On December 31, 2002, the United States Patent and Trademark Office duly and
`
`legally issued U.S. Patent No. 6,502,135 B1, entitled “Agile Network Protocol for Secure
`
`Communications with Assured System Availability” (the “‘135 patent”). A true and correct
`
`copy of the ‘135 patent is attached hereto as Exhibit A.
`
`8.
`
`On January 4, 2005, the United States Patent and Trademark Office duly and
`
`legally issued U.S. Patent No. 6,839,759 B2, entitled “Method for Establishing Secure
`
`Communication Link Between Computers of Virtual Private Network Without User Entering
`
`Any Cryptographic Information” (the “‘759 patent”). A true and correct copy of the ‘759 patent
`
`is attached hereto as Exhibit B.
`
`-2-
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`Page 2 of 9
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`Case 6:07-cv-00080-LED Document 25 Filed 04/05/07 Page 3 of 9 PageID #: 200
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`9.
`
`On March 6, 2007, the United States Patent and Trademark Office duly and
`
`legally issued U.S. Patent No. 7,188,180, entitled “Method for Establishing Secure
`
`Communication Link Between Computers of Virtual Private Network” (the “‘180 patent”). A
`
`true and correct copy of the ‘180 patent is attached hereto as Exhibit C.
`
`10.
`
`VirnetX is the owner of all right, title, and interest in and to the ‘135 patent, the
`
`‘759 patent, and the ‘180 patent by assignment, with full and exclusive right to bring suit to
`
`enforce each of these patents, including the right to recover for past infringement.
`
`COUNT ONE
`
`MICROSOFT’S INFRINGEMENT OF THE ‘135 PATENT
`
`11.
`
`VirnetX realleges and incorporates herein the allegations of paragraphs 1 through
`
`10 as if fully set forth herein.
`
`12.
`
`13.
`
`The ‘135 patent is valid and enforceable.
`
`Upon information and belief, Microsoft has infringed and/or is infringing the
`
`claims of the ‘135 patent by making, using, offering for sale, selling, and/or importing various
`
`products and/or services, including without limitation, certain versions of Windows Server 2003,
`
`Windows XP, Windows Vista, Live Communication Server, Windows Messenger, Microsoft
`
`Office Communicator, Microsoft Office suites and related applications (such as Word, Excel,
`
`and Outlook), and products with similar functionality available since January 2003.
`
`14.
`
`Upon information and believe, Microsoft is liable for direct infringement and/or
`
`indirect infringement by way of inducement and/or contributory infringement of the ‘135 patent
`
`under 35 U.S.C. § 271.
`
`-3-
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`Page 3 of 9
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`Case 6:07-cv-00080-LED Document 25 Filed 04/05/07 Page 4 of 9 PageID #: 201
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`15.
`
`Upon information and belief, in violation of 35 U.S.C. § 271, Microsoft provides
`
`components from the United States to be combined and/or used outside the United States in a
`
`manner infringing the ‘135 patent.
`
`16.
`
`Upon information and belief, Microsoft has willfully infringed and/or does
`
`willfully infringe the ‘135 patent.
`
`17.
`
`Upon information and belief, Microsoft’s acts of infringement of the ‘135 patent
`
`will continue after service of this Complaint unless enjoined by the Court.
`
`18.
`
`As a result of Microsoft’s infringement, VirnetX has suffered and will suffer
`
`damages.
`
`19.
`
`VirnetX is entitled to recover from Microsoft the damages sustained by VirnetX
`
`as a result of Microsoft’s wrongful acts in an amount subject to proof at trial.
`
`20.
`
`Unless Microsoft is enjoined by this Court from continuing its infringement of the
`
`‘135 patent, VirnetX will suffer additional irreparable harm and impairment of the value of its
`
`patent rights. Thus, VirnetX is entitled to an injunction against further infringement.
`
`COUNT TWO
`
`MICROSOFT’S INFRINGEMENT OF THE ‘759 PATENT
`
`21.
`
`VirnetX realleges and incorporates herein the allegations of paragraphs 1 through
`
`10 as if fully set forth herein.
`
`22.
`
`23.
`
`The ‘759 patent is valid and enforceable.
`
`Upon information and belief, Microsoft has infringed and/or is infringing the
`
`claims of the ‘759 patent by making, using, offering for sale, selling, and/or importing various
`
`products and/or services, including without limitation, certain versions of Windows Server 2003,
`
`Windows XP, Windows Vista, Live Communication Server, Windows Messenger, Microsoft
`
`-4-
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`Page 4 of 9
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`Case 6:07-cv-00080-LED Document 25 Filed 04/05/07 Page 5 of 9 PageID #: 202
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`Office Communicator, Microsoft Office suites and related applications (such as Word, Excel,
`
`and Outlook), and products with similar functionality available since January 2005.
`
`24.
`
`Upon information and belief, Microsoft is liable for direct infringement and/or
`
`indirect infringement by way of inducement and/or contributory infringement of the ‘759 patent
`
`under 35 U.S.C. § 271.
`
`25.
`
`Upon information and belief, in violation of 35 U.S.C. § 271, Microsoft provides
`
`components from the United States to be combined and/or used outside the United States in a
`
`manner infringing the ‘759 patent.
`
`26.
`
`Upon information and belief, Microsoft has willfully infringed and/or does
`
`willfully infringe the ‘759 patent.
`
`27.
`
`Upon information and belief, Microsoft’s acts of infringement of the ‘759 patent
`
`will continue after service of this Complaint unless enjoined by the Court.
`
`28.
`
`As a result of Microsoft’s infringement, VirnetX has suffered and will suffer
`
`damages.
`
`29.
`
`VirnetX is entitled to recover from Microsoft the damages sustained by VirnetX
`
`as a result of Microsoft’s wrongful acts in an amount subject to proof at trial.
`
`30.
`
`Unless Microsoft is enjoined by this Court from continuing its infringement of the
`
`‘759 patent, VirnetX will suffer additional irreparable harm and impairment of the value of its
`
`patent rights. Thus, VirnetX is entitled to an injunction against further infringement.
`
`COUNT THREE
`
`MICROSOFT’S INFRINGEMENT OF THE ‘180 PATENT
`
`31.
`
`VirnetX realleges and incorporates herein the allegations of paragraphs 1 through
`
`10 as if fully set forth herein.
`
`-5-
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`Page 5 of 9
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`Case 6:07-cv-00080-LED Document 25 Filed 04/05/07 Page 6 of 9 PageID #: 203
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`32.
`
`33.
`
`The ‘180 patent is valid and enforceable.
`
`Upon information and belief, Microsoft has infringed and/or is infringing the
`
`claims of the ‘180 patent by making, using, offering for sale, selling, and/or importing various
`
`products and/or services, including without limitation, certain versions of Windows XP,
`
`Windows Vista Home Premium, Windows Vista Business, Windows Vista Ultimate, and
`
`products with similar functionality available since March 2007.
`
`34.
`
`Upon information and belief, Microsoft is liable for direct infringement and/or
`
`indirect infringement by way of inducement and/or contributory infringement of the ‘180 patent
`
`under 35 U.S.C. § 271.
`
`35.
`
`Upon information and belief, in violation of 35 U.S.C. § 271, Microsoft provides
`
`components from the United States to be combined and/or used outside the United States in a
`
`manner infringing the ‘180 patent.
`
`36.
`
`Upon information and belief, Microsoft has willfully infringed and/or does
`
`willfully infringe the ‘180 patent.
`
`37.
`
`Upon information and belief, Microsoft’s acts of infringement of the ‘180 patent
`
`will continue after service of this Complaint unless enjoined by the Court.
`
`38.
`
`As a result of Microsoft’s infringement, VirnetX has suffered and will suffer
`
`damages.
`
`39.
`
`VirnetX is entitled to recover from Microsoft the damages sustained by VirnetX
`
`as a result of Microsoft’s wrongful acts in an amount subject to proof at trial.
`
`40.
`
`Unless Microsoft is enjoined by this Court from continuing its infringement of the
`
`‘180 patent, VirnetX will suffer additional irreparable harm and impairment of the value of its
`
`patent rights. Thus, VirnetX is entitled to an injunction against further infringement.
`
`-6-
`
`Page 6 of 9
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`
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`Case 6:07-cv-00080-LED Document 25 Filed 04/05/07 Page 7 of 9 PageID #: 204
`
`PRAYER FOR RELIEF
`
`WHEREFORE, VirnetX prays for judgment and relief as follows:
`
`(a)
`
`That Microsoft has infringed each of the ‘135 patent, the ‘759 patent, and
`
`the ‘180 patent under 35 U.S.C. § 271;
`
`(b)
`
`That Microsoft’s infringement of each of the ‘135 patent, the ‘759 patent,
`
`and the ‘180 patent constitutes willful infringement;
`
`(c)
`
`That Microsoft be ordered to pay VirnetX damages pursuant to 35 U.S.C.
`
`§ 284, including an accounting;
`
`(d)
`
`That Microsoft be ordered to pay VirnetX treble damages pursuant to 35
`
`U.S.C. § 284;
`
`§ 285;
`
`U.S.C.§ 285;
`
`(e)
`
`That the Court declare this to be an exceptional case pursuant to 35 U.S.C.
`
`(f)
`
`That Microsoft be ordered to pay VirnetX attorney fees pursuant to 35
`
`(g)
`
`That Microsoft be ordered to pay VirnetX pre-judgment and post-
`
`judgment interest;
`
`(h)
`
`That Microsoft be ordered to pay VirnetX all of the costs associated with
`
`this action;
`
`(i)
`
`That Microsoft, its officers, agents, employees, directors, representatives,
`
`parents, subsidiaries, affiliates, distributors and retailers and those persons and entities acting in
`
`active concert with, on behalf of, in joint venture with, or in participation with Microsoft, and its
`
`successors and assigns, be enjoined from further infringement of the ‘135 patent, the ‘759 patent,
`
`and the ‘180 patent pursuant to 35 U.S.C. § 283; and
`
`-7-
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`Page 7 of 9
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`Case 6:07-cv-00080-LED Document 25 Filed 04/05/07 Page 8 of 9 PageID #: 205
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`(j)
`
`That VirnetX be granted such other and additional relief as the Court
`
`deems just and proper.
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`DEMAND FOR JURY TRIAL
`
`VirnetX demands a trial by jury on all issues so triable.
`
`
`
`
`
`By: /s/Robert Christopher Bunt
`Robert Christopher Bunt
`Texas Bar No. 00787165
`Robert M. Parker
`Texas Bar No. 15498000
`Charles Ainsworth
`Texas Bar No. 00783521
`PARKER, BUNT & AINSWORTH, P.C.
`100 East Ferguson, Suite 1114
`Tyler, Texas 75702
`Telephone: (903) 531-3535
`Facsimile: (903) 533-9687
`E-mail: rcbunt@pbatyler.com
`E-mail: rmparker@pbatyler.com
`E-mail: charley@pbatyler.com
`
`Otis W. Carroll (Texas Bar No. 03895700)
`Collin M. Maloney (Texas Bar No. 00794219)
`IRELAND, CARROLL & KELLEY, P.C.
`6101 South Broadway, Suite 500
`Tyler, Texas 75703
`Telephone: (903) 561-1600
`Facsimile: (903) 581-1071
`Email: Fedserv@icklaw.com
`
`
`
`-8-
`
`Dated: April 5, 2007
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`Page 8 of 9
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`Case 6:07-cv-00080-LED Document 25 Filed 04/05/07 Page 9 of 9 PageID #: 206
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`
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`Of Counsel:
`
`Terrence P. McMahon (Pro Hac Vice
`App Pending)
`Vera M. Elson (Admitted Pro Hac Vice)
`McDERMOTT WILL & EMERY LLP
`3150 Porter Drive
`Palo Alto, CA 94304
`Telephone: (650) 813-5000
`Facsimile: (650) 813-5100
`E-mail: velson@mwe.com
`E-mail: tnation@mwe.com
`E-mail: mkenner@mwe.com
`
`
`
`Fay E. Morisseau (Texas Bar No. 14460750)
`Mark J. Itri (Pro Hac Vice App Pending)
`Christopher D. Bright (Admitted Pro Hac Vice)
`Daniel R. Foster (Admitted Pro Hac Vice)
`Soyeon (Karen) P. Laub (Admitted Pro Hac Vice)
`McDERMOTT WILL & EMERY LLP
`18191 Von Karman Avenue, Suite 500
`Irvine, California 92612-7108
`Telephone: (949) 851-0633
`Facsimile: (949) 851-9348
`E-mail: cbright@mwe.com
`E-mail: dfoster@mwe.com
`E-mail: klaub@mwe.com
`
`I hereby certify that all counsel who are deemed to have consented to electronic service
`are being served this 5th day of April 2007, with a copy of this document via the Court’s
`CM/ECF system per Local Rule CD-5(a)(3).
`
`
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`
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`Attorneys for plaintiff VirnetX Inc.
`CERTIFICATE OF SERVICE
`
`
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`
`
`
`
`
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`
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`
`
` /s/
`
`
`Robert Christopher Bunt
`ROBERT CHRISTOPHER BUNT
`
`-9-
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`Page 9 of 9
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