Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 1 of 16
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`
`
`BARCO, N.V. and
`
`BARCO, INC.,
`
`
`
`Plaintiffs,
`
`
`
`
`
`
`v.
`
`
`
`
`EIZO NANAO CORPORATION,
`and EIZO NANAO TECHNOLOGIES,
`INC.
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`CIVIL ACTION FILE NO.:
` 1:11-cv-02964-RLV
`
`JURY TRIAL DEMANDED
`
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiffs Barco N.V. (“BNV”) and Barco, Inc. (“Barco USA”) (collectively,
`
`
`
`“Plaintiffs” or “Barco”), for their First Amended Complaint against Defendants
`
`Eizo Nanao Corporation (“Eizo Japan”) and Eizo Nanao Technologies, Inc. (“Eizo
`
`USA) (collectively, “Defendants” or “Eizo”), hereby allege as follows:
`
`THE PARTIES
`
`1.
`
`BNV is a publicly listed limited liability corporation organized and
`
`existing under the laws of Belgium, with a principal place of business at President
`
`Kennedypark 35, BE-8500, Kortrijk, Belgium.
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`
`
`BARCO, N.V. and
`
`BARCO, INC.,
`
`
`
`Plaintiffs,
`
`
`
`
`
`
`v.
`
`
`
`
`EIZO NANAO CORPORATION,
`and EIZO NANAO TECHNOLOGIES,
`INC.
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`CIVIL ACTION FILE NO.:
` 1:11-cv-02964-RLV
`
`JURY TRIAL DEMANDED
`
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiffs Barco N.V. (“BNV”) and Barco, Inc. (“Barco USA”) (collectively,
`
`
`
`“Plaintiffs” or “Barco”), for their First Amended Complaint against Defendants
`
`Eizo Nanao Corporation (“Eizo Japan”) and Eizo Nanao Technologies, Inc. (“Eizo
`
`USA) (collectively, “Defendants” or “Eizo”), hereby allege as follows:
`
`THE PARTIES
`
`1.
`
`BNV is a publicly listed limited liability corporation organized and
`
`existing under the laws of Belgium, with a principal place of business at President
`
`Kennedypark 35, BE-8500, Kortrijk, Belgium.
`
`
`
`
`
`
`
`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 2 of 16
`
`2.
`
`Barco USA is a corporation organized and existing under the laws of
`
`the State of Delaware, with a principal place of business in this judicial district at
`
`3059 Premiere Parkway, Suite 400, Duluth, Georgia 30097. Barco USA is a
`
`wholly-owned subsidiary of BNV.
`
`3.
`
`Upon information and belief, Eizo Japan is a corporation organized
`
`and existing under the laws of Japan, having a principal place of business at 153
`
`Shimokashiwano, Hakusan, Ishikawa, 924-8566, Japan.
`
`4.
`
`Upon information and belief, Eizo USA is a corporation organized
`
`and existing under the laws of the State of California, having a principal place of
`
`business at 5710 Warland Drive, Cypress, California, 90630.
`
`JURISDICTION AND VENUE
`
`5.
`
`This is an action for patent infringement arising under the patent laws
`
`of the United States, Title 35 of the United States Code. This Court has subject
`
`matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a).
`
`6.
`
`This Court has personal jurisdiction over each of the Defendants in
`
`that each has, directly or through intermediaries, committed acts within this
`
`judicial district giving rise to this action and/or each has established minimum
`
`contacts with Georgia such that the exercise of jurisdiction would not offend
`
`traditional notions of fair play and substantial justice.
`
`
`
`2
`
`
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`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 3 of 16
`
`7.
`
`Venue is proper in this district under 28 U.S.C. § 1391(b), (c) and/or
`
`(d) and 28 U.S.C. § 1400(b).
`
`THE ‘849 PATENT AND THE ‘707 REISSUE PATENT
`
`8.
`
`On December 29, 2009, United States Patent No. 7,639,849 (“the ‘849
`
`Patent”), entitled “Methods, Apparatus, and Devices for Noise Reduction,” was
`
`duly and legally issued. A true and correct copy of the ‘849 Patent is attached
`
`hereto as Exhibit A.
`
`9.
`
`On October 2, 2012, United States Reissue Patent No. RE43,707 (“the
`
`‘707 Reissue Patent”), entitled “Methods, Apparatus, and Devices for Noise
`
`Reduction,” was duly and legally issued. A true and correct copy of the ‘707
`
`Reissue Patent is attached hereto as Exhibit B.
`
`10. BNV is the owner by assignment of the ‘849 Patent and the ‘707
`
`Reissue Patent. Barco USA is the exclusive licensee to the ‘849 Patent and the
`
`‘707 Reissue Patent in the United States.
`
`FACTUAL ALLEGATIONS
`11. Many video monitors and displays are matrix-based systems,
`
`composed of individual image forming elements called pixels. To form an image,
`
`each pixel in the display emits a varying amount of light in response to a varying
`
`level of an electrical drive signal. Conventional matrix-based monitors and
`
`
`
`3
`
`
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`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 4 of 16
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`displays have a known image quality deficiency that results from the unequal light-
`
`output of pixels in response to electrical drive signals at identical levels. Identical
`
`electrical drive signals applied to various pixels may nonetheless lead to different,
`
`i.e. non-uniform, light-output responses of these pixels.
`
`12. These differences in pixel behavior are caused by various factors,
`
`including by production processes involved in the manufacturing of the displays
`
`and/or by the physical construction of the displays themselves.
`
`13.
`
`In LCD screens, issues with non-uniform pixel responses can be
`
`caused by the radiance and position of the backlight lamps which allow the images
`
`to be seen. In addition, any unevenness in the thickness of the materials in the
`
`LCD panel or imperfections in the lamp reflectors, light guide plates, the liquid
`
`crystal cells, the diffuser/prism sheet or color filters further lead to non-uniform
`
`pixel responses, which have unwanted effects on the evenness and visibility of the
`
`images that can be viewed on the monitor or display.
`
`14. The ‘849 Patent and the ‘707 Reissue Patent addresses and solves
`
`these problems by teaching methods for image processing and image processing
`
`apparatuses. For example, one method of image processing taught by the ‘849
`
`Patent and the ‘707 Reissue Patent comprises obtaining a measure of a light-output
`
`response of at least a portion of a pixel for a plurality of pixels in a display,
`
`
`
`4
`
`
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`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 5 of 16
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`modifying a map that is based on the obtained measures, and obtaining a display
`
`signal based on the modified map and an image signal.
`
`15. Further, one image processing apparatus taught by the ‘849 Patent and
`
`the ‘707 Reissue Patent comprises an array of storage elements configured to store
`
`a measure of a light output response of at least a portion of the pixel at each of a
`
`plurality of driving levels, and an array of logic elements configured to modify a
`
`map based on the stored measures, and to obtain a display signal wherein the array
`
`of logic elements is configured to modify the map to increase a visibility of a
`
`characteristic of a displayed image during a use of the display.
`
`16. By practicing the methods or using the apparatuses taught and claimed
`
`by the ‘849 Patent and the ‘707 Reissue Patent, uniformity and visibility of a
`
`displayed image can be increased.
`
`17. Having clear, uniform, and visible images is important in many fields,
`
`including, by way of example, in the field of medical diagnostics. Several
`
`scientific studies have indicated that even a slight increase of non-uniformity in
`
`medical images can have a significant negative impact on the accuracy and quality
`
`of medical diagnoses.
`
`18. Barco is a global technology company that designs and develops
`
`visualization solutions for a variety of selected professional markets, including, but
`
`
`
`5
`
`
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`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 6 of 16
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`not limited to, medical imaging and diagnostics, media and entertainment,
`
`infrastructure & utilities, traffic & transportation, defense & security, education &
`
`training and corporate AV.
`
`19. For example, Barco designs, manufactures, sells, offers for sale, and
`
`imports into the United States monitors and displays for use in the medical
`
`diagnostic field, including without limitation the Coronis Series of products,
`
`together with related products and services.
`
`20. Barco also designs, manufactures, sells, offers for sale, and imports
`
`into the United States monitors and displays for use in the broadcast, film, and
`
`post-production fields, including without limitation the RHDM Series of products,
`
`together with related products and services.
`
`21. Barco also designs, manufactures, sells, offers for sale, and imports
`
`into the United States monitors and displays for use in the air traffic control field,
`
`including without limitation the ISIS Series of products, together with related
`
`products and services.
`
`22. Defendants design, manufacture, use, sell, offer for sale, and import
`
`into the United States a variety of monitors and displays, including LCD monitors
`
`and displays, in a variety of fields, including for use in the medical imaging and
`
`diagnostics field, the media and entertainment field, and the air traffic control field.
`
`
`
`6
`
`
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`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 7 of 16
`
`23. Defendants use a technology they call the Digital Uniformity
`
`Equalizer (“DUE”) system. According to Defendants, the DUE system provides
`
`perfect picture quality throughout the entire LCD panel. According to the
`
`Defendants, the DUE system enables fine textures and shades of color to be drawn
`
`neatly and differentiated, making it possible to view digital pictures on the monitor
`
`in their full color dynamic extent. According to the Defendants, the DUE system
`
`corrects luminance uniformity errors for every grayscale tone to ensure even
`
`uniformity and visibility in displayed monochromatic images across the screen and
`
`from monitor to monitor. According to the Defendants, the DUE system also
`
`corrects chromaticity uniformity errors enabling Defendants’ color monitors to
`
`display accurate polychromatic images on the display screen. According to the
`
`Defendants, the DUE system manages the color and brightness of pixels to ensure
`
`both are uniformly distributed throughout the display screen. Brightness and color
`
`are constantly adjusted throughout the entire display area so that unwanted non-
`
`uniformities are corrected in real-time, with the result that the same color tone
`
`appears the same throughout the entire display.
`
`24. Defendants make, have made, use, have used, sell, have sold, offer for
`
`sale, have offered for sale, and/or import and have imported into the United States
`
`various products that employ the DUE system, including, but not limited to, the
`
`
`
`7
`
`
`
`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 8 of 16
`
`RadiForce Series of products (including without limitation the GS310, GS320,
`
`GS510, GS510-G, GS520, RX211, RX320, and the LS560W ), the ColorEdge
`
`Series of products (including without limitation the CG221, CG211, CG210-N,
`
`CG19, CG276, CX270, CG246, CX240, and the CS230), the FlexScan Series of
`
`products (including without limitation the SX2762W and SX2462W), and the
`
`DuraVision Series of products (including without limitation the FDH3601).
`
`25. Barco and Defendants are direct competitors in the monitor and
`
`display market. For example, Barco’s products identified herein compete with
`
`Defendants’ products identified herein for sales in the United States.
`
`26. By letter dated July 17, 2010, Barco, through its counsel, put
`
`Defendants on actual notice of Barco’s patent rights and Defendants’ infringement
`
`of the ‘849 Patent, identifying specific products of the Defendants —including a
`
`number of the Defendants’ products identified herein—that infringe one or more
`
`claims of the ‘849 Patent.
`
`27. On September 2, 2011, Barco filed its original Complaint for Patent
`
`Infringement, alleging that Eizo infringed the ‘849 Patent.
`
`28. On December 28, 2011, realizing that it had failed to claim as much as
`
`it was entitled to claim, Barco filed an application to broaden and reissue the ‘849
`
`Patent.
`
`
`
`8
`
`
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`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 9 of 16
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`29. On October 2, 2012, the United States Patent and Trademark Office
`
`(“USPTO”) granted Barco’s reissue application by issuing the ‘707 Reissue Patent,
`
`reaffirming the patentability of the ‘849 Patent’s original claims 1- 37, and
`
`granting additional new claims 38 – 115.
`
`30. By letter dated October 2, 2012, Barco, through its counsel, put
`
`Defendants on actual notice of Barco’s patent rights and Defendants’ infringement
`
`of the ‘707 Reissue Patent, identifying specific products of the Defendants—
`
`including a number of the Defendants’ products identified herein—that infringe
`
`one or more claims of the ‘707 Reissue Patent.
`
`31. To date, Defendants have not ceased or desisted from their infringing
`
`conduct.
`
`COUNT I
`
`INFRINGEMENT OF THE ‘849 PATENT / ‘707 REISSUE PATENT
`32. Barco incorporates by reference each and every allegation of
`
`paragraphs 1 through 31 of this Complaint, as if fully set forth herein.
`
`33. BNV is the owner of the ‘849 Patent and the ‘707 Reissue Patent,
`
`including the right to sue and recover for infringement thereof.
`
`
`
`9
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`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 10 of 16
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`34. Barco USA is the exclusive licensee to the ‘849 Patent and the ‘707
`
`Reissue Patent in the United States, including the right to sue and recover for
`
`infringement thereof.
`
`35. Eizo Japan has been and is now directly infringing the ‘849 Patent and
`
`the ‘707 Reissue Patent by making, using, importing, selling and/or offering to sell
`
`monitors and displays that incorporate and/or use Eizo’s DUE system of image
`
`processing, including, but not limited to, the RadiForce Series of products
`
`(including without limitation the GS310, GS320, GS510, GS510-G, GS520,
`
`RX211, RX320, and the LS560W ), the ColorEdge Series of products (including
`
`without limitation the CG221, CG211, CG210-N, CG19, CG276, CX270, CG246,
`
`CX240, and the CS230), the FlexScan Series of products (including without
`
`limitation the SX2762W and SX2462W), and the DuraVision Series of products
`
`(including without limitation the FDH3601). These monitors and displays are
`
`covered by one or more of the ‘849 Patent’s and/or the ‘707 Reissue Patent’s
`
`claims, including without limitation claims 1, 12, 22-26, 34, 37-65, 67-82, 89-91,
`
`94, 96-104, and 108-115. Eizo Japan is thus liable for infringement of the ‘849
`
`Patent pursuant to 35 U.S.C. § 271(a).
`
`36. Eizo Japan has been and is now indirectly infringing the ‘849 Patent
`
`and the ‘707 Reissue Patent under 35 U.S.C. §§ 271(b) and (c) by making, using,
`
`
`
`10
`
`
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`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 11 of 16
`
`selling, offering to sell and/or promoting monitors and displays for use and
`
`operation that infringe the ‘849 Patent, including without limitation claims 1, 12,
`
`22-26, 34, 37-65, 67-82, 89-91, 94, 96-104, and 108-115. The accused Eizo Japan
`
`monitors and displays, as equipped, configured, and promoted by Eizo Japan, form
`
`at least a component of, and material part of the invention claimed in the ‘849
`
`Patent and the ‘707 Reissue Patent and are not staple articles of commerce suitable
`
`for substantial non-infringing use. At least as early as July 17, 2010, Eizo Japan
`
`has had knowledge of the ‘849 Patent; at least as early as October 2, 2012, Eizo
`
`Japan has had knowledge of the ‘707 Reissue Patent, and that the accused Eizo
`
`products are especially adapted for infringement thereof, and through its extensive
`
`efforts at promotion, distribution and sales, intends to induce and has contributed
`
`to, and induced distributors, sellers and end users to directly infringe at least the
`
`foregoing claims.
`
`37. Eizo USA has been and is now directly infringing the ‘849 Patent and
`
`the ‘707 Reissue Patent by making, using, importing, selling and/or offering to sell
`
`monitors and displays that incorporate and/or use Eizo’s DUE system of image
`
`processing, including without limitation the RadiForce Series of products
`
`(including without limitation the GS310, GS320, GS510, GS510-G, GS520,
`
`RX211, RX320, and the LS560W ), the ColorEdge Series of products (including
`
`
`
`11
`
`
`
`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 12 of 16
`
`without limitation the CG221, CG211, CG210-N, CG19, CG276, CX270, CG246,
`
`CX240, and the CS230), the FlexScan Series of products (including without
`
`limitation the SX2762W and SX2462W), and the DuraVision Series of products
`
`(including without limitation the FDH3601). These monitors and displays are
`
`covered by one or more of the ‘849 Patent’s and/or the ‘707 Reissue Patent’s
`
`claims, including without limitation claims 1, 12, 22-26, 34, 37-65, 67-82, 89-91,
`
`94, 96-104, and 108-115. Eizo USA is thus liable for infringement of the ‘849
`
`Patent pursuant to 35 U.S.C. § 271(a).
`
`38. Eizo USA has been and is now indirectly infringing the ‘849 Patent
`
`and the ‘707 Reissue Patent under 35 U.S.C. §§ 271(b) and (c) by making, using,
`
`selling, offering to sell and/or promoting monitors and displays for use and
`
`operation that infringe the ‘849 Patent and the ‘707 Reissue Patent, including
`
`without limitation claims 1, 12, 22-26, 34, 37-65, 67-82, 89-91, 94, 96-104, and
`
`108-115. The accused Eizo USA monitors and displays, as equipped, configured,
`
`and promoted by Eizo USA, form at least a component of, and material part of the
`
`invention claimed in the ‘849 Patent and the ‘707 Reissue Patent and are not staple
`
`articles of commerce suitable for substantial non-infringing use. At least as early
`
`as July 17, 2010, Eizo USA has had knowledge of the ‘849 Patent; at least as early
`
`as October 2, 2012, Eizo Japan has had knowledge of the ‘707 Reissue Patent, and
`
`
`
`12
`
`
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`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 13 of 16
`
`that the accused Eizo products are especially adapted for infringement thereof, and
`
`through its extensive efforts at promotion, distribution and sales, intends to induce
`
`and has contributed to, and induced distributors, sellers and end users to directly
`
`infringe at least the foregoing claims.
`
`39. Defendants have had actual knowledge of the ‘849 Patent since at
`
`least July 17, 2010, and actual knowledge of the ‘707 Reissue Patent since at least
`
`October 2, 2012, but nonetheless have continued their infringing activities, in
`
`objectively reckless disregard of Barco’s patent rights, and thus the Defendants’
`
`infringement has been willful, warranting a finding that this case is “exceptional”
`
`pursuant to 35 U.S.C. § 285.
`
`40. As a result of Defendants’ infringement of the ‘849 Patent and the
`
`‘707 Reissue Patent, Barco has been damaged in an amount to be proven at trial.
`
`41. An award of money damages is inadequate to fully compensate Barco
`
`for the harm it has suffered as a result of Defendants’ conduct, and Barco has no
`
`adequate remedy at law.
`
`42. As a result of Defendants’ conduct, Barco has suffered irreparable
`
`harm, and will continue to suffer irreparable harm unless Defendants’ infringement
`
`is enjoined by this Court.
`
`
`
`13
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`
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`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 14 of 16
`
`
`
`WHEREFORE, Barco respectfully requests that this Court enter:
`
`PRAYER FOR RELIEF
`
`A. A judgment in favor of Barco that Defendants have infringed, directly and/or
`
`indirectly, by way of inducing and/or contributing to the infringement of the ‘849
`
`Patent and the ‘707 Reissue Patent;
`
`B. A preliminary and a permanent injunction enjoining Defendants and their
`
`officers, directors, agents, servants, affiliates, employees, divisions, branches,
`
`subsidiaries, parents, and all others acting in active concert with them from
`
`infringement, inducing the infringement of, or contributing to the infringement of
`
`the ‘849 Patent and the ‘707 Reissue Patent;
`
`C. A judgment and order requiring Defendants to pay Barco its damages, costs,
`
`expenses, and prejudgment and post-judgment interest for Defendants’
`
`infringement of the ‘849 Patent and the ‘707 Reissue Patent;
`
`D. An award to Barco of treble damages resulting from the knowing, deliberate,
`
`and willful nature of Defendants’ prohibited conduct, as provided under 35 U.S.C.
`
`§ 284;
`
`E.
`
`A judgment and order finding this is an exceptional case within the meaning
`
`of 35 U.S.C. § 285 and awarding to Barco its reasonable attorneys’ fees;
`
`F.
`
`Any and all other relief to which Barco may show itself to be entitled.
`
`
`
`14
`
`
`
`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 15 of 16
`
`DEMAND FOR JURY TRIAL
`
`
`
`Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Barco requests
`
`a trial by jury of all issues so triable.
`
`
`
`
`
`15
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`
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`Case 1:11-cv-02964-RLV Document 63 Filed 01/17/13 Page 16 of 16
`
`Respectfully submitted this ___ day of ____________________, 20___.
`
`BARNES & THORNBURG LLP
`
`_________________________________
`Jeffrey C. Morgan
`Georgia Bar No: 522667
`3475 Piedmont Rd., N.E.
`Suite 1700
`Atlanta, Georgia 30305
`Tel. (404) 264-4015
`Fax. (404) 264-4033
`Email:
`jeff.morgan@btlaw.com
`
`Jeffrey A. Michael
`(Pro Hac Vice)
`BARNES & THORNBURG LLP
`171 Monroe Avenue, N.W.
`Suite 1000
`Grand Rapids, Michigan 49503
`Tel. (616) 742-3925
`Fax. (616) 742-3999
`Email:
`jeffrey.michael@btlaw.com
`
`ATTORNEYS FOR PLAINTIFFS
`BARCO, N.V. AND BARCO, INC.
`
`FONT CERTIFICATION
`
`I hereby certify that this document is presented in Times New Roman 14.
`
`___________________________
`Jeffrey C. Morgan
`
`16
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