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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
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`STRAIGHT PATH IP GROUP, INC.,
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`Civil Action No. 1:13-cv-934 (AJT/IDD)
`
`v.
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`VIZIO, INC., et al.,
`
`Plaintiff,
`
`Defendants.
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`STRAIGHT PATH IP GROUP, INC.,
`
`Plaintiff,
`
`v.
`
`TOSHIBA CORPORATION, et al.,
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`Defendants.
`
`STRAIGHT PATH IP GROUP, INC.,
`
`Plaintiff,
`
`v.
`
`LG ELECTRONICS, INC., et al.,
`
`Defendants.
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`Civil Action No. 1:13-cv-934 (AJT/IDD)
`[formerly No. 3:13-cv-503, No. 1:13-cv-1070]
`
`Civil Action No. 1:13-cv-934 (AJT/IDD)
`[formerly No. 1:13-cv-933]
`
`PROPOSED INTERVENOR HULU, LLC’S BRIEF IN SUPPORT OF MOTION TO
`INTERVENE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 24
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`I.
`
`PRELIMINARY STATEMENT
`Hulu is one of America’s leading Internet companies. Hulu offers its millions of users a
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`premium streaming video experience via a wide selection of television shows, movies, original
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`programming, clips, and more. Hulu partners with several leading technology companies,
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`including LG, Toshiba, and VIZIO, to make its streaming service available to Hulu users through
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`those technology companies’ Internet-enabled devices, including televisions and Blu-ray
`players.1
`Patent holder Straight Path sued LG, Toshiba, and VIZIO for patent infringement in
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`August 2013. Those cases were stayed in favor of a parallel proceeding that Straight Path filed
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`in the U.S. International Trade Commission (“ITC”). Straight Path’s ITC infringement
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`allegations did not implicate Hulu. Having abandoned its ITC action a week before trial,
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`Straight Path now alleges in this Court that LG, Toshiba, and VIZIO infringe three patents.
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`These three patents relate to Voice-over-IP (“VoIP”) technology, which allows users to make
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`and receive telephone calls over the Internet. Although Hulu’s video-streaming service has
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`nothing to do with telephone calls, Straight Path has accused, in part, the Hulu application
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`available on certain LG, Toshiba, and VIZIO devices.
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`Hulu seeks to address—and dispel—Straight Path’s accusations directly. Only Hulu
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`knows the inner workings of its application; therefore, Hulu is in the best position to defend
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`against Straight Path’s allegations. And Hulu has agreed to defend VIZIO and LG against these
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`allegations and assist Toshiba in its defense, pursuant to the parties’ respective partnership
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`agreements. Hulu respectfully moves to intervene in this litigation as a matter of right, and in the
`alternative seeks the court’s permission to intervene.2
`
`1The following abbreviations apply throughout this brief: (1) “Hulu” means “Hulu, LLC”; (2)
`“LG” means LG Electronics, Inc., LG Electronics U.S.A., Inc., and LG Electronics
`MobileComm U.S.A., Inc.; (3) “Toshiba” means Toshiba Corporation, Toshiba America, Inc.,
`and Toshiba America Information Systems, Inc.; (4) “VIZIO” means VIZIO, Inc.; and (5)
`“Straight Path” means “Straight Path IP Group, Inc.”
`2Pursuant to Civil Local Rule 7(E), Hulu has sought to meet and confer with the parties to
`narrow the areas of disagreement. None of the defendants objects to Hulu’s intervention. Hulu’s
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`II.
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`STATEMENT OF FACTS
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`The action is in its infancy.
`A.
`Straight Path filed its complaints against LG, Toshiba, and VIZIO on August 1 and 2,
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`2013, alleging infringement of United States Patent Nos. 6,009,469, 6,108,704, and 6,131,121.
`
`See Dkt. 1 of 1:13-cv-933; Dkt. 1 of 1:13-cv-934; Dkt. 1 of 1:13-cv-1070. Only a few months
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`later, in October and November of 2013, the Court stayed all three actions in favor of Straight
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`Path’s parallel action against LG, Toshiba, and VIZIO before the ITC. See Dkt. 7 of 1:13-cv-
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`933; Dkt. 45 of 1:13-cv-934. After Straight Path abandoned its ITC action one week before trial
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`was to begin, the Court lifted the stays in June 2014.
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`Because of the stay, nothing material has yet happened in the case. Earlier this month, on
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`September 2, 2014, this Court consolidated the LG action with the Toshiba and VIZIO actions
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`for pretrial purposes. Dkt. 114 of 1:13-cv-934. Just ten days ago, on September 22, 2014, this
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`Court entered a scheduling order and opened fact discovery. Dkt. 117 of 1:13-cv-934.
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`Straight Path asserts infringement based in part on Hulu functionality.
`B.
`Straight Path’s infringement theory against LG, Toshiba, and VIZIO features significant
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`accusations directed at Hulu’s product functionality. Fourteen days ago, on September 18, 2014,
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`Toshiba informed Hulu that Straight Path sent Toshiba claim charts accusing Hulu’s product
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`functionality on Toshiba’s devices. Declaration of Anthony Garza in Support of Hulu, LLC’s
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`Motion to Intervene (“Garza Decl.”) ¶ 3. VIZIO and LG subsequently also informed Hulu that
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`Straight Path provided claim charts accusing Hulu’s product functionality on their respective
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`devices. Id.
`
`Hulu has contracts with defendants LG, Toshiba, and VIZIO that provide for certain
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`indemnity and defense obligations with respect to proprietary Hulu software subject to the terms
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`and conditions in those contracts. Id. ¶ 2. In response to VIZIO and LG’s requests for
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`lead counsel met and conferred several times by phone and email with Straight Path’s counsel.
`Despite the parties’ best efforts, they could not reach agreement on Hulu’s intervention.
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`indemnification, Hulu has agreed to defend those partners for infringement claims made by
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`Straight Path against the Hulu product in this case. Id. ¶ 4. Hulu has further agreed to assist
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`Toshiba to the extent that Straight Path’s infringement claims require information about Hulu’s
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`product. Id. ¶ 5.
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`III.
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`ARGUMENT
`Given that Straight Path is systematically targeting Hulu’s partners and accusing Hulu’s
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`product functionality, the Court should grant Hulu’s request to intervene in this action as a matter
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`of right under Federal Rule of Civil Procedure 24(a)(2). Alternatively, based on Straight Path’s
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`actions, Hulu requests that the Court permit Hulu to intervene under Federal Rule of Civil
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`Procedure 24(b)(1)(B).
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`Hulu may intervene as a matter of right.
`A.
`Intervention as of right is governed by Rule 24(a)(2), which provides that the Court must
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`permit anyone to intervene who, on timely motion, “claims an interest relating to the property or
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`transaction that is the subject of the action, and is so situated that disposing of the action may as
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`a practical matter impair or impede the movant’s ability to protect its interest, unless existing
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`parties adequately represent that interest.” Accordingly, a party seeking to intervene as of right
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`must demonstrate: (1) that its motion is timely; (2) an interest sufficient to merit intervention; (3)
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`that without intervention, its interest may be impaired; and (4) that the present litigants do not
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`adequately represent its interest. See Cooper Techs., Co. v. Dudas, 247 F.R.D. 510, 514 (E.D.
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`Va. 2007) (quoting Virginia v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976)).
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`Hulu’s motion to intervene is timely.
`1.
`Hulu filed its motion just fourteen days after learning that Straight Path sent claim charts
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`accusing the Hulu application on Toshiba devices and only ten days after the Court opened
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`discovery. A week of that delay arose because Hulu’s lead counsel met and conferred by phone
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`several times with Straight Path’s counsel in an effort to avoid this motion, which Hulu
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`originally intended to file on Friday, September 26. In considering the timeliness of a motion to
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`intervene, the Court considers all of the circumstances, but “[t]he most important consideration is
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`whether the delay has prejudiced the other parties.” Spring Constr. Co. v. Harris, 614 F.2d 374,
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`377 (4th Cir. 1980). Because discovery has only very recently commenced, the existing parties
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`will not be prejudiced by the addition of Hulu. See Mountain Top Condominium Assoc. v. Dave
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`Stabbert Master Builder, Inc., 72 F.3d 361, 370 (3d Cir. 1995) (“[T]he stage of the proceeding is
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`inherently tied to the question of the prejudice the delay in intervention may cause to the parties
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`already involved.”). Far from imposing any prejudice, Hulu’s intervention will likely streamline
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`matters for the existing parties by obviating the cumbersome and time-consuming third-party
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`discovery procedures that Straight Path would otherwise be forced to pursue against Hulu.
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`2.
`
`Hulu has a significantly protectable interest related to the products at
`issue.
`An intervenor as of right must have a “significantly protectable interest.” Teague v.
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`Bakker, 931 F.2d 259, 261 (4th Cir. 1991) (quoting Donaldson v. United States, 400 U.S. 517,
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`531 (1971)).
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`Hulu has a significantly protectable interest in the central issue at stake in this lawsuit:
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`whether Hulu’s partners infringe a family of related patents based, in part, on Hulu’s technology.
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`See Honeywell Int’l Inc. v. Audiovox Commc’ns Corp., No. 04-1337-KAJ, 2005 WL 2465898, at
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`*4 (D. Del. May 18, 2005) (granting manufacturer’s motion to intervene in patent suit “because
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`it puts a willing manufacturer defendant in the forefront of litigation aimed squarely at its
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`product”); see also Katz v. Lear Siegler, Inc., 909 F.2d 1459, 1464 (Fed. Cir. 1990) (noting that,
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`“in reality, the manufacturer is the true defendant in the customer suit”) (quoting Codex Corp. v.
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`Milgo Elecs. Corp., 553 F.2d 735, 737-38 (1st Cir. 1977)). A finding in this case that Hulu’s
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`application on Toshiba, LG, and VIZIO devices infringes could have widespread impact on
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`Hulu’s business: users may not be able to enjoy viewing Hulu’s content on those devices and
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`Hulu’s other partners may worry that their devices will also be affected. Thus, Hulu has a
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`significantly protectable interest because it “stand[s] to gain or lose by the direct legal operation
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`of the district court’s judgment” in the cases before this Court. See Teague, 931 F.2d at 261.
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`Hulu has a second significantly protectable interest in this litigation. Hulu has contracts
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`with defendants LG, Toshiba, and VIZIO that provide for certain indemnity and defense
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`obligations with respect to proprietary Hulu software. Garza Decl., ¶ 2. In response to VIZIO
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`and LG’s indemnity demands, Hulu has agreed to defend VIZIO and LG as to infringement
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`claims made by Straight Path. Id. ¶ 4. Hulu has also agreed to assist Toshiba as to claims related
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`to Hulu functionality. Id. ¶ 5. It is well-settled that an indemnitor has a protectable interest in a
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`lawsuit brought against its indemnitees. See, e.g., Fisherman’s Harvest Inc. v. United States, 74
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`Fed. Cl. 681, 685 (Fed. Cl. 2006) (listing cases); IBM v. Conner Peripherals, Inc., No. C-93-
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`20117 RPA/EAI, 1994 WL 706208, at *5 (N.D. Cal. Dec. 13, 1994) (explaining that patent-
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`infringement claims against an indemnitee customer are, in effect, claims against the indemnitor
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`manufacturer).
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`In circumstances similar to this action, three separate district courts recently granted
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`Adobe’s motions to intervene in cases involving Adobe’s customers. Adobe provided the digital
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`marketing software that was alleged to infringe Select Retrieval’s patent in each case. See Select
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`Retrieval, LLC v. ABT Elecs., No. 11 C03752, 2013 WL 6576861, at *1 (N.D. Ill. Dec. 13,
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`2013); Select Retrieval LLC v. AmeriMark Direct LLC, No. 11-812-RGA, 2013 WL 3381324, at
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`*1 (D. Del. July 3, 2013); Select Retrieval, LLC v. L.L. Bean, Inc., No. 12-cv-00003-NT, 2013
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`WL 1099754, *1 (D. Me. Mar. 15, 2013). All three courts found that Adobe had a substantial
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`and protectable interest in the issue at stake in the litigation, namely, “whether its customers are
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`using technology obtained from Adobe as directed by Adobe and infringing the ’617 patent as a
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`result.” See ABT Elecs., 2013 WL 6576861, at *2; see also L.L. Bean, Inc., 2013 WL 1099754,
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`at *3 (Adobe established a substantial interest where it was Adobe’s “technology [that] is alleged
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`to infringe Select Retrieval’s patent, and because Adobe has acknowledged an obligation to
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`defend and indemnify L.L. Bean”); AmeriMark Direct LLC, 2013 WL 3381324, at *1.
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`In sum, Hulu has two distinct protectable interests in these cases: (1) the threat that the
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`Court will find that the Hulu product on certain partners’ devices are infringing; and (2) Hulu’s
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`agreement to indemnify and defend VIZIO and LG against Straight Path’s accusations with
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`respect to Hulu functionality and its contractual obligations to the remaining defendants.
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`3.
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`The disposition of these actions may impair Hulu’s ability to protect
`its interests.
`Without intervention, the disposition of the above-captioned case will impair Hulu’s
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`ability to protect its own interests. This element of the test for intervention “is satisfied
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`whenever disposition of the present action would put the movant at a practical disadvantage in
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`protecting its interest.” 7C Wright, Miller & Kane, Fed. Prac. & Proc. Civ. § 1908.2 (3d ed.
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`2007); see also Fed. R. Civ. P. 24, Advisory Committee Notes, 1966 Amendment (“If an
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`absentee would be substantially affected in a practical sense by the determination made in an
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`action, he should, as a general rule, be entitled to intervene[.]”). If Hulu is not permitted to
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`intervene, its partners may (and, given Straight Path’s previous course of conduct, likely will)
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`continue to be sued all over the United States. Straight Path has already sued another Hulu
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`technology partner, Samsung, in the Eastern District of Texas, and just last week filed additional
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`lawsuits in the Northern District of California, including against yet another Hulu technology
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`partner, Apple. Litigation against Hulu’s technology in multiple fora subjects Hulu to the risk of
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`piecemeal and inconsistent judgments as to whether its technology infringes Straight Path’s
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`patents. See ABT Elecs., 2013 WL 6576861, at *2 (holding that the disposition of the case
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`against Adobe’s customers could impair or impede Adobe’s ability to protect its own interest).
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`This would pose a significant threat to Hulu, its current partners, and its future efforts to market
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`and license Hulu technology to new partners.
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`The named defendants inadequately represent Hulu’s interests.
`4.
`Though Hulu’s interests are presumed to be represented adequately by LG, Toshiba, and
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`VIZIO (see Westinghouse Elec. Corp., 542 F.2d at 216), the Fourth Circuit has cautioned “that
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`the burden on the applicant of demonstrating a lack of adequate representation ‘should be treated
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`as minimal.’” Teague, 931 F.2d at 262 (quoting Trbovich v. United Mine Workers, 404 U.S.
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`528, 538 n.10 (1972)); see also Defenders of Wildlife v. N.C. Dep’t of Transp., 281 F.R.D. 264,
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`269 (E.D.N.C. 2012) (observing that, even where the party seeking intervention shares the same
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`ultimate objective as a party to the suit, the applicant need only show that representation of his
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`interest “may be” inadequate); Rutherford Cnty. v. Bond Safeguard Ins. Co., No. 1:09cv292,
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`2010 WL 2231780, at *2 (W.D.N.C. June 1, 2010) (same).
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`In any case, Hulu’s interests are not adequately represented here by LG, Toshiba, and
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`VIZIO, even though Hulu seeks the same result as its partners: a determination of non-
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`infringement by devices using Hulu technology. Hulu has significantly broader interests than the
`existing parties because Hulu is concerned with the entirety of its partner and customer base,
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`both present and future, and has far more to gain or lose from a ruling regarding Hulu
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`functionality than do LG, Toshiba, and VIZIO individually. See L.L. Bean, 2013 WL 1099754,
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`at *3 (“Adobe, as the developer and marketer of the allegedly infringing technology, has more at
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`stake than L.L. Bean as a mere customer of Adobe.”); AmeriMark Direct LLC, 2013 WL
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`3381324, at *2 (“Adobe has a significant interest in having its technology not be subject to
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`piecemeal attacks scattered hither and yon across the United States, with the possibility of
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`redundant litigation and inconsistent verdicts.”); ABT Elecs., 2013 WL 6576861, at *2 (noting
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`that Adobe had much more to gain or lose from a ruling in a case involving its customers).
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`In addition, Hulu is the party most familiar with its own proprietary technology. See id.
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`at *2 (“The customers also lack the same understanding of the underlying technology; Adobe is
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`in a superior position to defend the products it developed.”); Honeywell Int’l Inc., 2005 WL
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`2465898, at *4 (observing that because LCD manufacturer was “uniquely situated to understand
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`and defend its own product, its interests are not adequately represented by existing parties to the
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`litigation”); see also Delphi Corp. v. Auto. Techs. Int’l, Inc., No. 08-cv-11048, 2008 WL
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`2941116, at *5 (E.D. Mich. July 25, 2008) (manufacturer was “the natural defendant” because it
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`“controlled the design and production and therefore is in the best position to defend its own
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`products”). Hulu’s partners necessarily do not have the same understanding of Hulu’s
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`technology.
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`During the course of Hulu’s efforts to meet and confer about its intervention with Straight
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`Path, counsel for Straight Path expressed concern that Hulu’s intervention would unduly expand
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`the scope of this litigation because, in its Complaint in Intervention, appended hereto as
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`Attachment 1, Hulu requests a declaration that its own technology, independent of LG, Toshiba,
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`and VIZIO’s devices, does not infringe the three patents-in-suit. Straight Path’s concern lacks
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`merit. Courts routinely permit technology manufacturers who intervene in actions against their
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`customers and partners to seek a declaratory judgment that the manufacturer’s underlying
`technology does not infringe the patents in suit. That intervention is studiously not limited to the
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`existing defendants’ uses of the manufacturer’s technology, but rather sweeps broadly to permit
`the manufacturer to litigate the issue of its technology’s alleged infringement once and for all.3
`The scope of Hulu’s Complaint in Intervention is therefore quite typical.
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`To limit Hulu’s intervention to only the uses of Hulu’s technology by LG, Toshiba, and
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`VIZIO would undermine the efficiencies that intervention offers. The idea behind intervention is
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`to allow one court to adjudicate at one time whether or not the technology manufacturer
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`infringes. To hold otherwise would “force[] [Hulu] to proceed in piecemeal fashion even though
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`the same technology . . . is at issue in the various cases.” ABT Elecs., 2013 WL 6576861, at *2
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`(explaining why the court permitted Adobe’s intervention).
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`Straight Path may also complain that addressing Hulu’s technology across all partner
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`platforms would dramatically expand the scope of the case. That is not so. Hulu would provide
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`3Compare, e.g., Honeywell Int’l Inc., 2005 WL 2465898, at *4 (granting manufacturer Seiko
`Epson’s motion to intervene in case accusing seller defendants of infringement) with Dkt. 50-3
`of 1:04-cv-1337 (D. Del.) at 10 (Seiko Epson’s Proposed Complaint in Intervention seeking a
`declaration that “products manufactured, sold, offered for sale, imported or otherwise provided
`by Seiko Epson do not infringe and have not infringed any of the claims of the ’731 patent”);
`Reid v. Gen. Motors Corp., 240 F.R.D. 257, 260 (E.D. Tex. 2006) (permitting Microsoft to
`intervene in a case accusing its customer’s use of Microsoft technology of infringement) with
`Dkt. 106 in 2:05-cv-401 (E.D. Tex.) at 3 (Microsoft’s Complaint in Intervention stating that
`“Microsoft does not induce or contribute to infringement of any claim of the ’120 patent”); see
`also Dkt. 178 in 1:09-cv-354 (D. Del.) at 4 (Intel’s Complaint in Intervention, seeking
`declaratory judgment that “neither Intel nor any of its products infringe . . . any valid claim of the
`’617 Patent”).
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`Straight Path with relevant discovery as to user and usage statistics that show use across its
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`partner platforms. Straight Path will be free to take third-party discovery in the ordinary course
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`from any of those partners. Straight Path is already familiar with the two most significant such
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`partners, Apple and Samsung, because Straight Path has sued them on the same family of
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`patents. This concern might carry more weight if this case had already been underway, but the
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`Court has just recently opened discovery and the case-management conference has yet to occur.
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`Straight Path will have plenty of time and ability to pursue whatever discovery, from whomever,
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`that it deems necessary to make its case.
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`Because Hulu has made a timely motion, has significantly protectable interests that may
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`be impaired in the absence of intervention, and the present litigants do not adequately represent
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`those interests, Hulu is entitled to intervene as of right.
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`Alternatively, the Court should permit Hulu to intervene.
`B.
`If the Court concludes that Hulu may not intervene as of right, the Court should permit
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`Hulu’s intervention. Rule 24(b)(1)(B) permits intervention “on timely motion” where a
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`proposed intervenor “has a claim or defense that shares with the main action a common question
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`of law or fact.” See also Shaw v. Hunt, 154 F.3d 161, 165 (4th Cir. 1998) (noting that Rule 24(b)
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`“plainly dispenses with any requirement that the intervenor shall have a direct personal or
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`pecuniary interest in the subject of the litigation”) (quoting SEC v. United States Realty &
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`Improvement Co., 310 U.S. 434, 459 (1940)). The Court must also “consider whether the
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`intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Rule
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`24(b)(3).
`
`For the reasons explained above, Hulu’s motion is timely and filed promptly after
`
`learning that Hulu technology is at issue in this action and prior to the initial pretrial conference.
`
`No prejudice would result from Hulu being added as a party at such an early procedural
`
`juncture—to the contrary, Hulu’s intervention would streamline matters. And because Hulu is
`
`the creator and provider of a technology at issue, it shares with its partners both their claims of
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`866536
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`07C; %.%’"8F"$$-’("/46"311 1B8E@;AD %&) 2>?;9 %$#$’#%( 57=; %% B< %’ 57=;31! %%*-
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`invalidity regarding Straight Path’s patents and their defenses of non-infringement. See Reid,
`
`240 F.R.D. at 260 (where Microsoft software was “a substantial part of an allegedly infringing
`
`system,” intervenor Microsoft’s “claims of invalidity and unenforceability raise the same
`
`questions of law and fact as similar claims by Defendants because they are all asserted against
`
`the ’120 patent”). The Court should permit Hulu to intervene in the above-captioned case.
`
`IV.
`
`CONCLUSION
`Like the technology partners who successfully intervened in other courts in which
`
`partners were sued for patent infringement, Hulu has amply demonstrated intervention as of
`
`right. Should the Court disagree, it should nonetheless permit Hulu’s intervention.
`
`Dated: October 3, 2014
`
`By:
`
`Respectfully submitted,
`
`HULU, LLC
`
`/s/ Robert A. Angle
`Robert A. Angle (VSB No. 37691)
`robert.angle@troutmansanders.com
`Mary Catherine Zinsner (VSB No. 31397)
`mary.zinsner@troutmansanders.com
`K. Nicola Harrison (VSB No. 82194)
`nicola.harrison@troutmansanders.com
`TROUTMAN SANDERS LLP
`1850 Towers Crescent Plaza, Suite 500
`Tysons Corner, Virginia 22182
`Telephone: (703) 734-4334
`Facsimile: (703) 734-4340
`
`Ashok Ramani (pro hac vice application
`pending)
`aramani@kvn.com
`Matthias Kamber (admitted pro hac vice
`(Dkt. No. 103))
`mkamber@kvn.com
`Sharif E. Jacob (admitted pro hac vice (Dkt.
`No. 104))
`sjacob@kvn.com
`Katherine M. Lovett (admitted pro hac vice
`(Dkt. No. 102))
`klovett@kvn.com
`
`866536
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`KEKER & VAN NEST LLP
`633 Battery Street
`San Francisco, CA 94111-1809
`Telephone: 415 391 5400
`Facsimile: 415 397 7188
`
`Attorneys for Proposed Intervenor
`HULU, LLC
`
`866536
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on the 3rd day of October, 2014, I served the counsel listed below by
`
`e-mail and filed the foregoing with the Clerk of the Court using the CM/ECF system, which will
`
`send a notice of electronic filing to the registered users listed below:
`
`Sona Rewari
`Hunton & Williams
`1751 Pinnacle Dr
`Suite 1700
`McLean, VA 22102
`(703) 714-7400
`srewari@hunton.com
`
`Gregory N. Stillman
`Hunton & Williams
`500 E Main St
`Suite 1000
`Norfolk, VA 23510
`(757) 640-5314
`Fax: (757) 625-7720
`gstillman@hunton.com
`Counsel for Straight Path IP Group, Inc.
`
`Elizabeth Diane Ferrill
`Finnegan Henderson Farabow Garrett &
`Dunner LLP (DC)
`901 New York Ave NW
`Washington, DC 20001-4413
`202-408-4445
`Fax: 202-408-4400
`elizabeth.ferrill@finnegan.com
`Counsel for LG Electronics, Inc., LG
`Electronics U.S.A., Inc., and LG Electronics
`MobileComm U.S.A., Inc.
`
`Brian L. Whisler
`Matthew Steven Dushek
`Baker & McKenzie LLP (DC)
`815 Connecticut Ave NW
`Suite 1100
`Washington, DC 20006
`202-452-7000
`brian.whisler@bakermckenzie.com
`matt.dushek@bakermckenzie.com
`Counsel for VIZIO, Inc.
`
`Scott Lloyd Smith
`Holly Beth Lance
`Buchanan Ingersoll & Rooney PC (VA)
`1737 King St
`Suite 500
`Alexandria, VA 22314-2727
`703-836-6620
`Fax: 703-836-2021
`lloyd.smith@bipc.com
`Holly.Lance@bipc.com
`Counsel for Toshiba America Information
`Systems, Inc. and Toshiba Corporation
`
`By: /s/ Robert A. Angle
`Robert A. Angle (VSB No. 37691)
`robert.angle@troutmansanders.com
`TROUTMAN SANDERS LLP
`1850 Towers Crescent Plaza, Suite 500
`Tysons Corner, Virginia 22182
`Telephone: (703) 734-4334
`Facsimile: (703) 734-4340
`
`866536
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
`
`STRAIGHT PATH IP GROUP, INC.,
`
`Civil Action No. 1:13-cv-934 (AJT/IDD)
`
`v.
`
`VIZIO, INC., et al.,
`
`Plaintiff,
`
`Defendants.
`
`STRAIGHT PATH IP GROUP, INC.,
`
`Plaintiff,
`
`v.
`
`TOSHIBA CORPORATION, et al.,
`
`Defendants.
`
`STRAIGHT PATH IP GROUP, INC.,
`
`Plaintiff,
`
`v.
`
`LG ELECTRONICS, INC., et al.,
`
`Defendants.
`
`Civil Action No. 1:13-cv-934 (AJT/IDD)
`[formerly No. 3:13-cv-503, No. 1:13-cv-1070]
`
`Civil Action No. 1:13-cv-934 (AJT/IDD)
`[formerly No. 1:13-cv-933]
`
`HULU, LLC’S COMPLAINT IN INTERVENTION
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`Pursuant to Federal Rule of Civil Procedure 24(c), Intervenor Hulu, LLC (“Hulu”) hereby
`
`alleges for its Complaint in Intervention as follows:
`
`1.
`
`Hulu seeks a declaratory judgment of non-infringement pursuant to the
`
`Declaratory Judgment Act, 28 U.S.C. §§ 2201(a) and 2202.
`
`Parties
`
`2.
`
`Hulu is a Delaware limited liability company with its headquarters and principal
`
`place of business located at 2500 Broadway, Santa Monica, California 90404. Hulu offers its
`
`millions of users a premium streaming video experience that offers a wide selection of television
`
`shows, clips, movies, original programming, and more. Through its website www.hulu.com and
`
`via applications offered by its many technology partners, Hulu offers a free ad-supported
`
`streaming service as well as a subscription service that offers subscribers access to the current
`
`season of scores of the hottest prime-time television shows.
`
`3.
`
`Upon information and belief, Defendant-in-Intervention Straight Path is a
`
`Delaware corporation with its principal place of business at 5300 Hickory Park Drive, Suite 218,
`
`Glen Allen, Virginia 23059.
`
`Jurisdiction and Venue
`
`4.
`
`This action arises under the patent laws of the United States, 35 U.S.C. §§ 101 et
`
`seq., and the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. This Court has
`
`subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a).
`
`5.
`
`6.
`
`Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(a), (b), and (c).
`
`This Court has personal jurisdiction over Straight Path by virtue of, inter alia,
`
`Straight Path’s principal place of business, which is in Glen Allen, Virginia, and its filing and
`
`pursuit of related patent infringement litigation in this district.
`
`Background and Hulu’s Interest in This Lawsuit
`
`7.
`
`Straight Path has accused Hulu technology partners (hereinafter, “Hulu Partners”)
`
`LG Electronics, Inc., LG Electronics U.S.A., Inc., LG Electronics MobileComm U.S.A., Inc.,
`
`Toshiba Corporation, Toshiba America, Inc., Toshiba America Information Systems, Inc., and
`
`1
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`VIZIO, Inc., of making, using, selling, offering to sell, and/or importing products that allegedly
`
`infringe several patents: United States Patent No. 6,009,469 (the “’469 Patent”), entitled
`
`“Graphic User Interface for Internet Telephony Application,” United States Patent No. 6,108,704
`
`(the “’704 Patent”), entitled “Point-to-Point Protocol,” and United States Patent No. 6,131,121
`
`(the “’121 Patent”), entitled “Point-to-Point Computer Network Communication Utility Utilizing
`
`Dynamically Assigned Network Protocol Addresses.”
`
`8.
`
`The Hulu Partners design, manufacture, or sell devices that incorporate Hulu
`
`functionality.
`
`9.
`
`Hulu is informed and believes that Straight Path asserts or intends to assert that
`
`the ’469, ’121, and ’704 Patents are infringed by the Hulu Partners’ devices by virtue of their
`
`Hulu functionality. For example, on information and belief, Straight Path has informed several
`
`Hulu Partners that they infringe the patents-in-suit by virtue of Hulu functionality allegedly
`
`offered on the Hulu Partners’ accused devices.
`
`10.
`
`Straight Path seeks damages from Hulu Partners for making or selling devices that
`
`incorporate Hulu functionality. Thus, Hulu has a direct and substantial interest in defending
`
`against and defeating Straight Path’s claims with regard to the ’469, ’121, and ’704 Patents. By
`
`intervening in this action, Hulu seeks the Court’s assistance and declaration concerning these
`
`matters, which have been and are subjects of disagreement among the parties.
`
`11.
`
`As a result of Straight Path’s infringement allegations against the Hulu Partners
`
`regarding the ’469, ’121, and ’704 Patents, an actual controversy exists between Hulu and
`
`Straight Path. By intervening in this action, Hulu seeks the Court’s assistance and declaration
`
`concerning these matters, which have been and are subjects of disagreement among the parties.
`
`FIRST CAUSE OF ACTION
`
`Count for Declaratory Judgment of Non-Infringement of the ’469 Patent
`
`12.
`
`13.
`
`Hulu incorporates by reference the allegations in paragraphs 1-11.
`
`Straight Path has sued Hulu Partners in the present action alleging infringement of
`
`the ’469 Patent.
`
`2
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`14.
`
`By making, using, selling, offering to sell, marketing, licensing, or importing its
`
`technology, Hulu does not infringe, directly, indirectly, literally or otherwise, a valid claim,