Case 6:10-cv-00094-LED Document 1 Filed 03/17/10 Page 1 of 7 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`
`VirnetX Inc.,
`
`
`Plaintiff,
`
`
`vs.
`
`Microsoft Corporation,
`
`
`Defendant.
`
`
`
`
`
`Civil Action No. 6:10-cv-94
`
`
`§§§§§§§§§
`
`
`PLAINTIFF VIRNETX INC.’S ORIGINAL COMPLAINT
`
`Plaintiff VirnetX Inc. (“VirnetX”) files this complaint against Defendant Microsoft Corp.
`
`(“Microsoft”) for patent infringement of U.S. Patent Nos. 6,502,135 and 7,188,180, under 35
`
`U.S.C. § 271, and in support thereof would respectfully show the Court the following:
`
`THE PARTIES
`
`1.
`
`Plaintiff VirnetX is a corporation organized and existing under the laws of the
`
`State of Delaware, and maintains its principal place of business at 5615 Scotts Valley Drive,
`
`Suite 110 Scotts Valley, California.
`
`2.
`
`Defendant Microsoft Corp. is a Washington corporation with its principal place
`
`of business at One Microsoft Way, Redmond, Washington 98052. On information and belief,
`
`Microsoft regularly conducts and transacts business in Texas, throughout the United States,
`
`and within the Eastern District of Texas, and as set forth below, has committed and continues
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`to commit, tortious acts of patent infringement within and outside of Texas and within the
`
`Eastern District of Texas.
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`Dallas 297838v2
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`1
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`Page 1 of 7
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`VIRNETX EXHIBIT 2013
`Microsoft v. VirnetX
`Trial IPR2014-00558
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`
`VirnetX Inc.,
`
`
`Plaintiff,
`
`
`vs.
`
`Microsoft Corporation,
`
`
`Defendant.
`
`
`
`
`
`Civil Action No. 6:10-cv-94
`
`
`§§§§§§§§§
`
`
`PLAINTIFF VIRNETX INC.’S ORIGINAL COMPLAINT
`
`Plaintiff VirnetX Inc. (“VirnetX”) files this complaint against Defendant Microsoft Corp.
`
`(“Microsoft”) for patent infringement of U.S. Patent Nos. 6,502,135 and 7,188,180, under 35
`
`U.S.C. § 271, and in support thereof would respectfully show the Court the following:
`
`THE PARTIES
`
`1.
`
`Plaintiff VirnetX is a corporation organized and existing under the laws of the
`
`State of Delaware, and maintains its principal place of business at 5615 Scotts Valley Drive,
`
`Suite 110 Scotts Valley, California.
`
`2.
`
`Defendant Microsoft Corp. is a Washington corporation with its principal place
`
`of business at One Microsoft Way, Redmond, Washington 98052. On information and belief,
`
`Microsoft regularly conducts and transacts business in Texas, throughout the United States,
`
`and within the Eastern District of Texas, and as set forth below, has committed and continues
`
`to commit, tortious acts of patent infringement within and outside of Texas and within the
`
`Eastern District of Texas.
`
`Dallas 297838v2
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`1
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`Page 1 of 7
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`VIRNETX EXHIBIT 2013
`Microsoft v. VirnetX
`Trial IPR2014-00558
`
`
`
`Case 6:10-cv-00094-LED Document 1 Filed 03/17/10 Page 2 of 7 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
`
`United States, Title 35, United States Code. This Court has exclusive subject matter
`
`jurisdiction over this case for patent infringement under 28 U.S.C. § 1338.
`
`4.
`
`Venue is proper in the Eastern District of Texas under 28 U.S.C. §§ 1391 and
`
`1400(b).
`
`5.
`
`This Court has personal jurisdiction over Microsoft. Microsoft has conducted
`
`and does conduct business within the State of Texas. Microsoft, directly or through
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`subsidiaries or intermediaries (including distributors, retailers, and others), ships, distributes,
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`offers for sale, sells, and advertises (including the provision of an interactive web page) its
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`products and/or services in the United States, the State of Texas, and the Eastern District of
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`Texas. Microsoft, directly and through subsidiaries or intermediaries (including distributors,
`
`retailers, and others), has purposefully and voluntarily placed one or more of its infringing
`
`products and/or services, as described below, into the stream of commerce with the expectation
`
`that they will be purchased and used by consumers in the Eastern District of Texas. These
`
`infringing products and/or services have been and continue to be purchased and used by
`
`consumers in the Eastern District of Texas. Microsoft has committed acts of patent
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`infringement within the State of Texas and, more particularly, within the Eastern District of
`
`Texas.
`
`COUNT ONE
`
`PATENT INFRINGEMENT
`
`6.
`
`VirnetX incorporates by reference paragraphs 1-5 as if fully set forth herein.
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`Case 6:10-cv-00094-LED Document 1 Filed 03/17/10 Page 3 of 7 PageID #: 3
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`7.
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`On December 31, 2002, United States Patent No. 6,502,135 (“the ’135 patent”)
`
`entitled “Agile Network Protocol for Secure Communications with Assured System
`
`Availability” was duly and legally issued with Edmund Colby Munger, Douglas Charles
`
`Schmidt, Robert Dunham Short, III, Victor Larson, Michael Williamson as the named
`
`inventors after full and fair examination. VirnetX is the owner of all rights, title, and interest in
`
`and to the ’135 patent and possesses all rights of recovery under the ’135 patent. A copy of the
`
`’135 patent is attached as Exhibit A.
`
`8.
`
`Microsoft is infringing the ’135 patent under 35 U.S.C. § 271 by performing,
`
`without authority, one or more of the following acts: (a) making, using, offering to sell, and
`
`selling within the United States products and services (including, but not limited to Windows 7
`
`and Windows Server 2008 R2) that practice the inventions of the ’135 patent; (b) importing
`
`into the United States the inventions of the ’135 patent; (c) on information and belief,
`
`contributing to the infringement of the ’135 patent by others in the United States; and/or (d) on
`
`information and belief, inducing others to infringe the ’135 patent within the United States.
`
`9.
`
`Microsoft’s acts of infringement have caused damage to VirnetX. 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. Microsoft’s infringement of VirnetX’s
`
`rights under the ’135 patent will continue to damage VirnetX’s business, causing irreparable
`
`harm, for which there is no adequate remedy of law, unless enjoined by this Court.
`
`10. Microsoft’s has willfully infringed and/or does willfully infringe the ’135
`
`patent.
`
`11.
`
`Plaintiff has complied with 35 U.S.C. § 287.
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`Case 6:10-cv-00094-LED Document 1 Filed 03/17/10 Page 4 of 7 PageID #: 4
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`COUNT TWO
`
`PATENT INFRINGEMENT
`
`12.
`
`13.
`
`VirnetX incorporates by reference paragraphs 1- 11 as if fully set forth herein.
`
`On March 6, 2007, United States Patent No. 7,188,180 (“the ’180 patent”)
`
`entitled “Method for Establishing Secure Communication Link Between Computers of Virtual
`
`Private Network” was duly and legally issued with Edmund Colby Munger, Robert Dunham
`
`Short, III, Victor Larson, Michael Williamson as the named inventors after full and fair
`
`examination. VirnetX is the owner of all rights, title, and interest in and to the ’180 patent and
`
`possesses all rights of recovery under the ’180 patent. A copy of the ’180 patent is attached as
`
`Exhibit B.
`
`14. Microsoft is infringing the ’180 patent under 35 U.S.C. § 271 by performing,
`
`without authority, one or more of the following acts: (a) making, using, offering to sell, and
`
`selling within the United States products and services (including, but not limited to Windows 7
`
`and Windows Server 2008 R2) that practice the inventions of the ’180 patent; (b) importing
`
`into the United States the inventions of the ’180 patent; (c) on information and belief,
`
`contributing to the infringement of the ’180 patent by others in the United States; and/or (d) on
`
`information and belief, inducing others to infringe the ’180 patent within the United States.
`
`15. Microsoft’s acts of infringement have caused damage to VirnetX. 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. Microsoft’s infringement of VirnetX’s
`
`rights under the ’180 patent will continue to damage VirnetX’s business, causing irreparable
`
`harm, for which there is no adequate remedy of law, unless enjoined by this Court.
`
`Dallas 297838v2
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`Case 6:10-cv-00094-LED Document 1 Filed 03/17/10 Page 5 of 7 PageID #: 5
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`16. Microsoft’s has willfully infringed and/or does willfully infringe the ’180
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`patent.
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`17.
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`Plaintiff has complied with 35 U.S.C. § 287.
`
`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
`
`
`
`WHEREFORE, VirnetX prays for the following relief:
`
`1.
`
`A judgment that Microsoft has directly infringed the ’135 and ’180 patents,
`
`contributorily infringed the ’135 and ’180 patents, and/or induced the infringement of the ’135
`
`and ’180 patents;
`
`2.
`
`A preliminary and permanent injunction preventing Microsoft and its officers,
`
`directors, agents, servants, employees, attorneys, licensees, successors, and assigns, and those
`
`in active concert or participation with any of them, from directly infringing, contributorily
`
`infringing, and/or inducing the infringement of the ’135 and ’180 patents;
`
`3.
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`A judgment that Microsoft’s infringement of the ’135 and ’180 patents has been
`
`willful;
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`4.
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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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`5.
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`A judgment and order requiring Microsoft to pay VirnetX damages under 35
`
`U.S.C. § 284, including supplemental damages for any continuing post-verdict infringement up
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`Case 6:10-cv-00094-LED Document 1 Filed 03/17/10 Page 6 of 7 PageID #: 6
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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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`6.
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`A judgment and order requiring Microsoft to pay VirnetX the costs of this
`
`action (including all disbursements);
`
`7.
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`A judgment and order requiring Microsoft to pay VirnetX pre-judgment and
`
`post-judgment interest on the damages awarded;
`
`8.
`
`A judgment and order requiring that in the event a permanent injunction
`
`preventing future acts of infringement is not granted, that VirnetX be awarded a compulsory
`
`ongoing licensing fee; and
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`9.
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`Such other and further relief as the Court may deem just and proper.
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`Case 6:10-cv-00094-LED Document 1 Filed 03/17/10 Page 7 of 7 PageID #: 7
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`DATED: March 17, 2010
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`
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`
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` Respectfully submitted,
`
`
`
`
`
`McKOOL SMITH, P.C.
`
`
`/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
`J. Austin Curry
`Texas State Bar No. 24059636
`E-mail: acurry@mckoolsmith.com
`MCKOOL SMITH P.C.
`300 Crescent Court, Suite 1500
`Dallas, Texas 75201
`Telephone: (214) 978-4000
`Telecopier: (214) 978-4044
`
`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
`
`
`ATTORNEYS FOR PLAINTIFF
`VIRNETX, INC.
`
`
`
`Dallas 297838v2
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`7
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`Page 7 of 7
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