Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 1of21
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`RUSS, AUGUST & KABAT
`Larry C. Russ, State Bar No. 82760
`Marc A. Fenster, State Bar No. 181067
`Brian D. Ledahl, State Bar No. 186579
`Alexander C.D. Giza, State Bar No. 212327
`J. Power Rely VI, State Bar Ng. 271231
`12424 Wilshire Boulevard, Ii Floor
`Los Angeles, California 90025
`Telephone: (310) 826-7474
`Facs1mile:(3 l 0) 826-6991
`
`Attorneys for Plaintiff
`SPH AMERICA, LLC
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`SPH AMERICA, LLC,
`
`Case No. 13-CV-2323-CAB-NLS
`
`Plaintiff,
`
`vs.
`
`HUA WEI TECHNOLOGIES, CO.,
`LTD., FUTUREWEI
`TECHNOLOGIES, INC., HUA WEI
`DEVICE USA, INC.,
`
`Defendants.
`
`FIRST AMENDED COMPLAINT
`FOR PATENT INFRINGEMENT
`
`Jury Trial Demanded
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`HUAWEI EXHIBIT 1013
`HUAWEI VS. SPH
`
`000001
`
`

`

`Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 2 of 21
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`This is an action for patent infringement arising under the Patent Laws of the
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`United States of America, 35 U.S.C. § 1 et seq. in which Plaintiff SPH America,
`
`LLC ("SPH" or "Plaintiff') makes the following allegations against Defendants
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`Huawei Technologies, Co., Ltd., Futurewei Technologies, Inc., and Huawei Device
`
`USA, Inc. (collectively "Huawei" or "Defendants").
`
`I.
`
`PARTIES
`
`1.
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`Plaintiff SPH America, LLC is a Virginia limited liability company
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`having a principal place of business at 8133 Leesburg Pike, Suite 310, Vienna,
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`Virginia 22182.
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`10
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`2.
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`On information and belief, Defendant Huawei Technologies, Co., Ltd.
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`is a Chinese corporation with its principal place of business in Shenzhen, China.
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`On information and belief, Defendant Futurewei Technologies, Inc. is a Delaware
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`corporation with its principal place of business at 5700 Tennyson Parkway, Suite
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`#500, Plano, Texas, 75024. On information and belief, Defendant Huawei Device
`
`USA, Inc. is a Texas corporation with its principal place of business at 5700
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`Tennyson Parkway, Suite #600, Plano, Texas 75024. On information and belief,
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`all three defendants are wholly-owned subsidiaries of Huawei Investment &
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`Holding Co., Ltd.
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`II.
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`JURISDICTION AND VENUE
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`3.
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`This action arises under the patent laws of the United States, Title 35
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`of the United States Code. This Court has original subject matter jurisdiction
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`pursuant to 28 U.S.C. §§ 1331and1338(a).
`
`4.
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`On information and belief, Defendants are subject to this Court's
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`specific and general personal jurisdiction pursuant to due process and/or the
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`California Long Arm Statute, due to having availed themselves of the rights and
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`benefits of California by engaging in activities, including: (i) conducting
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`substantial business in this forum; and (ii) engaging in other persistent courses of
`
`140103 FAC Huawei.docx
`
`1
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`HUAWEI EXHIBIT 1013
`HUAWEI VS. SPH
`
`000002
`
`

`

`Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 3 of 21
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`conduct, and/or deriving substantial revenue from goods and services provided to
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`individuals in California and in this Judicial District.
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`5.
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`Venue is proper in this district under 28 U.S.C. §§ 1391(b), 1391(c)
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`and 1400(b ). On information and belief, Defendants have engaged in activities
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`including: transacting business in this district and purposefully directing its
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`business activities, including the sale of infringing goods, to this district.
`
`COUNT I
`
`INFRINGEMENT OF U.S. PATENT NO. RE 40,385
`
`6.
`
`Plaintiff SPH realleges and incorporates by reference paragraphs 1-5
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`10
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`above, as if fully set forth herein.
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`11
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`12
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`7.
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`Plaintiff SPH is the exclusive licensee of United States Patent No. RE
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`40,385 ("the '385 patent") titled "Orthogonal Complex Spreading Method For
`
`Multichannel And Apparatus Thereof." The '385 pat,ent was duly and legally
`
`issued by the United States Patent and Trademark Office on June 17, 2008. SPH is
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`the exclusive licensee, possessing all substantial rights, to the '385 patent pursuant
`
`to a license from the Electronics and Telecommunications Research Institute, a
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`South Korean non-profit research organization, the owner of the '385 patent.
`
`8.
`
`On information and belief, Huawei makes and sells mobile handsets
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`Cl)
`Cl)
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`for use on a wireless network.
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`9.
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`On information and belief, Huawei has infringed and continues to
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`infringe the '385 patent by, among other things, making, using, offering for sale,
`
`and/or selling unlicensed systems, and products and/or services related thereto,
`
`covered by one or more claims of the '385 patent. Such unlicensed products
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`include, by way of example and without limitation, the T-Mobile Prism II, the
`
`Premia 4G, and the Pinnacle 2 devices, all of which are covered by one or more
`
`claims of the '385 patent, including but not limited to claim 31 . By making, using,
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`offering for sale, and/or selling such systems, and products and/or services related
`
`thereto, covered by one or more claims of the '385 patent, Huawei has injured SPH
`
`140103 FAC Huawei.docx
`
`2
`
`HUAWEI EXHIBIT 1013
`HUAWEI VS. SPH
`
`000003
`
`

`

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`Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 4 of 21
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`and is liable to SPH for infringement of the ' 385 patent pursuant to 35 U.S.C. §
`
`271.
`
`10. Huawei was placed on notice of its infringement of the '385 Patent no
`
`later than approximately July 2009 as a result of a complaint filed by SPH alleging
`
`infringement of the '385 patent by Huawei. Though that action was subsequently
`
`dismissed without prejudice as to Huawei, it placed Huawei on notice of its
`
`infringing activities.
`
`11. On information and belief, Huawei has also infringed the '385 patent
`
`by inducing others, including users of its wireless handsets, to infringe one or more
`
`claims of the '385 patent in violation of 35 U.S.C. § 27l(b).
`
`12. On information and belief, Huawei takes active steps to induce its
`
`customers to infringe the '385 patent by taking affirmative steps to encourage and
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`facilitate direct infringement by others with knowledge of that infringement, such
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`as, upon information and belief, by importing, offering for sale, and/or selling
`
`products and/or services that when used as intended infringe the '385 patent. For
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`example, and without limitation, on information and belief, Huawei advertises that
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`customers can utilize mobile devices to communicate using its network services for
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`3G communications enabled pursuant to CDMA2000 technology or WCDMA
`
`technology. Since at least the time of prior complaint in July 2009, Huawei has
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`had actual knowledge of the '385 patent and that the use of products and services
`
`by its customers constituted direct infringement of the ' 385 patent. Despite this
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`knowledge, Huawei has continued to offer its infringing products, to facilitate and
`
`encourage infringing use of its products, and to encourage its customers to use its
`
`products and services in a manner that infringes the ' 385 patent.
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`13. On information and belief, Huawei has also infringed the '385 patent
`
`by contributing to the infringement of others, including users of its handsets, to
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`infringe one or more claims of the '385 patent in violation of 35 U.S.C. § 271(c).
`
`140103 FACHuawei.docx
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`3
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`HUAWEI EXHIBIT 1013
`HUAWEI VS. SPH
`
`000004
`
`

`

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`Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 5 of 21
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`14. On information and belief, Huawei sells devices that are a component
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`of the patented invention of the '3 85 patent or an apparatus for use in practicing a
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`patented process of the '385 patent and they are especially made or especially
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`adapted for use in infringement of the '385 patent. In particular, the mobile
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`handsets sold and offered for sale by Huawei are apparatus for use in practicing
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`one or more claimed processes of the '385 patent and are especially made or
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`especially adapted for use in practicing one or more claimed processes of the '385
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`patent, including through use in communications using CDMA2000 technology or
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`WCDMA technology. Huawei sold these devices despite its knowledge that they
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`were especially made or especially adapted for use in infringement of the '385
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`patent. Huawei was put on notice of the infringing nature of these goods since at
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`least the time of SPH's prior complaint in July 2009.
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`15. Huawei undertook its actions of, inter alia, making, using, offering for
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`sale, and/or selling unlicensed systems, and products and/or services related thereto
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`despite an objectively high likelihood that such activities infringed the '385 patent,
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`which has been duly issued by the United States Patent and Trademark Office, and
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`is presumed valid. Since at least the time of the 2009 complaint, Huawei has been
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`aware of an objectively high likelihood that its actions constituted, and continue to
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`constitute, infringement of the '385 patent and that the '385 patent is valid.
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`Despite that knowledge, on information and belief, Huawei has continued its
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`infringing activities. As such, Huawei willfully infringed the '385 patent.
`
`16. As a result ofHuawei's infringement of the '385 patent, Plaintiff SPH
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`has suffered monetary damages and is entitled to a money judgment in an amount
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`adequate to compensate for Huawei's infringement, but in no event less than a
`
`reasonable royalty for the use made of the invention by Huawei, enhancement of
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`damages due to Huawei's willful infringement, and interest and costs as fixed by
`
`the Court.
`
`140103 FACHuawei.docx
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`4
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`HUAWEI EXHIBIT 1013
`HUAWEI VS. SPH
`
`000005
`
`

`

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`Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 6 of 21
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`COUNT II
`
`INFRINGEMENT OF U.S. PATENT NO. RE 40,253
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`17.
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`Plaintiff SPH realleges and incorporates by reference paragraphs 1-16
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`above, as if fully set forth herein.
`
`18.
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`Plaintiff SPH is the exclusive licensee of United States Patent No. RE
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`40,253 ("the '253 patent") titled "Apparatus For Making A Random Access To the
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`Reverse Common Channel Of A Base Station In CDMA And Method Therefor."
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`The '253 patent was duly and legally issued by the United States Patent and
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`Trademark Office on April 22, 2008. SPH is the exclusive licensee, possessing all
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`substantial rights, to the '253 patent pursuant to a license from the Electronics and
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`Telecommunications Research Institute, a South Korean non-profit research
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`organization, the owner of the '253 patent.
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`19. On information and belief, Huawei makes and sells mobile handsets
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`for use on a wireless network.
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`20. On information and belief, Huawei has infringed and continues to
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`infringe the '253 patent by, among other things, making, using, offering for sale,
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`and/or selling unlicensed systems, and products and/or services related thereto,
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`covered by one or more claims of the '253 pat,ent. Such unlicensed products
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`include, by way of example and without limitation, the T-Mobile Prism II, the
`
`Premia 4G, and the Pinnacle 2 devices, which are covered by one or more claims
`
`of the '253 patent, including but not limited to claim 34. By making, using,
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`offering for sale, and/or selling such systems, and products and/or services related
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`thereto, covered by one or more claims of the ' 253 patent, Huawei has injured SPH
`
`and is liable to SPH for infringement of the ' 253 patent pursuant to 35 U.S.C. §
`
`271.
`
`21. Huawei was placed on notice of its infringement of the '253 Patent no
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`later than approximately July 2009 as a result of a complaint filed by SPH alleging
`
`infringement of the '253 patent by Huawei. Though that action was subsequently
`
`140103 FACHuawei.docx
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`5
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`HUAWEI EXHIBIT 1013
`HUAWEI VS. SPH
`
`000006
`
`

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`Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 7 of 21
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`dismissed without prejudice as to Huawei, it placed Huawei on notice of its
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`infringing activities.
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`22. On information and belief, Huawei has also infringed the '253 patent
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`by inducing others, including users of its wireless handsets, to infringe one or more
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`claims of the '253 patent in violation of 35 U.S.C. § 271(b).
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`23. On information and belief, Huawei takes active steps to induce its
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`customers to infringe the '253 patent by taking affirmative steps to encourage and
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`facilitate direct infringement by others with knowledge of that infringement, such
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`as, upon information and belief, by importing, offering for sale, and/or selling
`
`products and/or services that when used as intended infringe the '253 patent. For
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`example, and without limitation, on information and belief, Huawei advertises that
`
`customers can utilize its mobile devices for 3G communications enabled pursuant
`
`to WCDMA technology. Since at least the time of SPH's prior complaint in July
`
`2009, Huawei has had actual knowledge of the ' 253 patent and that the use of
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`products and services by its customers constituted direct infringement of the '253
`
`patent. Despite this knowledge, Huawei has continued to offer its infringing
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`products, to facilitate and encourage infringing use of its products, and to
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`encourage its customers to use its products and services in a manner that infringes
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`the '253 patent.
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`24. On information and belief, Huawei has also infringed the '253 patent
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`by contributing to the infringement of others, including users of its wireless
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`handsets, to infringe one or more claims of the '253 patent in violation of 35
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`U.S.C. § 27l(c).
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`25. On information and belief, Huawei sells devices that are a component
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`of the patented invention of the '253 patent or an apparatus for use in practicing a
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`patented process of the '253 patent and they are especially made or especially
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`adapted for use in infringement of the '253 patent. In particular, the mobile
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`handsets sold and offered for sale by Huawei are apparatus for use in practicing
`
`140103 FACHuawei.docx
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`6
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`HUAWEI EXHIBIT 1013
`HUAWEI VS. SPH
`
`000007
`
`

`

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`Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 8 of 21
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`one or more claimed processes of the '253 patent and are especially made or
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`especially adapted for use in practicing one or more claimed processes of the '253
`
`patent, including through use in communications using WCDMA technology.
`
`Huawei sold these unlicensed devices despite its knowledge that they were
`
`especially made or especially adapted for use in infringement of the '253 patent.
`
`Huawei was put on notice of the infringing nature of these goods since at least the
`
`time of SPH' s prior complaint in July 2009.
`
`26. Huawei undertook its actions of, inter alia, making, using, offering for
`
`sale, and/or selling unlicensed systems, and products and/or services related thereto
`
`despite an objectively high likelihood that such activities infringed the ' 253 patent,
`
`which has been duly issued by the United States Patent and Trademark Office, and
`
`is presumed valid. Since at least the time of SPH's prior complaint in July 2009,
`
`Huawei has been aware of an objectively high likelihood that its actions
`
`constituted, and continue to constitute, infringement of the '253 patent and that the
`
`'253 patent is valid. Despite that knowledge, on information and belief, Huawei
`
`has continued its infringing activities. As such, Huawei willfully infringed the
`
`'253 patent.
`
`27. As a result ofHuawei's infringement of the ' 253 patent, Plaintiff SPH
`
`has suffered monetary damages and is entitled to a money judgment in an amount
`
`adequate to compensate for Huawei's infringement, but in no event less than a
`
`reasonable royalty for the use made of the invention by Huawei, enhancement of
`
`damages due to Huawei's willful infringement, and interest and costs as fixed by
`
`the Court.
`
`COUNT III
`
`INFRINGEMENT OF U.S. PATENT NO. 7,443,906
`
`28.
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`Plaintiff SPH realleges and incorporates by reference paragraphs 1-27
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`above, as if fully set forth herein.
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`140103 FACHuawei.docx
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`7
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`HUAWEI EXHIBIT 1013
`HUAWEI VS. SPH
`
`000008
`
`

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`Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 9 of 21
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`29.
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`Plaintiff SPH is the exclusive licensee of United States Patent No.
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`7,443,906 ("the '906 patent") titled "Apparatus and Method For Modulating Data
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`Message by Employing Orthogonal Variable Spreading Factor (OVSF) Codes In
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`Mobile Communication System." The '906 patent was duly and legally issued by
`
`the United States Patent and Trademark Office on October 28, 2008. SPH is the
`
`exclusive licensee, possessing all substantial rights, to the '906 patent pursuant to a
`
`license from the Electronics and Telecommunications Research Institute, a South
`
`Korean non-profit research organization, the owner of the '906 patent.
`
`30. On information and belief, Huawei makes and sells mobile handsets
`
`for use on a wireless network.
`
`31. On information and belief, Huawei has infringed and continues to
`
`infringe the '906 patent by, among other things, making, using, offering for sale,
`
`and/or selling unlicensed systems, and products and/or services related thereto,
`
`covered by one or more claims of the '906 pat,ent. Such unlicensed products
`
`include, by way of example and without limitation, the T-Mobile Prism II, the
`
`Premia 4G, and the Pinnacle 2 devices, which are covered by one or more claims
`
`of the '906 patent, including but not limited to claim 14. By making, using,
`
`offering for sale, and/or selling such systems, and products and/or services related
`
`thereto, covered by one or more claims of the '906 patent, Huawei has injured SPH
`
`and is liable to SPH for infringement of the ' 906 patent pursuant to 35 U.S.C. §
`
`271.
`
`32. Huawei was placed on notice of its infringement of the '906 Patent no
`
`later than approximately July 2009 as a result of a complaint filed by SPH alleging
`
`infringement of the '906 patent by Huawei. Though that action was subsequently
`
`dismissed without prejudice as to Huawei, it placed Huawei on notice of its
`
`infringing activities.
`
`140103 FACHuawei.docx
`
`8
`
`HUAWEI EXHIBIT 1013
`HUAWEI VS. SPH
`
`000009
`
`

`

`E-
`<
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`~ 17
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`Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 10 of 21
`
`33. On information and belief, Huawei has also infringed the '906 patent
`
`by inducing others, including users of its wireless handsets to infringe one or more
`
`claims of the '906 patent in violation of 35 U.S.C. § 27l(b).
`
`34. On information and belief, Huawei takes active steps to induce its
`
`customers to infringe the '906 patent by taking affirmative steps to encourage and
`
`facilitate direct infringement by others with knowledge of that infringement, such
`
`as, upon information and belief, by importing, offering for sale, and/or selling
`
`products and/or services that when used as intended infringe the '906 patent. For
`
`example, and without limitation, on information and belief, Huawei advertises that
`
`customers can utilize its mobile devices to communicate using 3G communications
`
`enabled pursuant to WCDMA technology. Since at least the time of SPH's prior
`
`complaint in July 2009, Huawei has had actual knowledge of the '906 patent and
`
`that the use of products and services by its customers constituted direct
`
`infringement of the '906 patent. Despite this knowledge, Huawei has continued to
`
`offer its infringing products, to facilitate and encourage infringing use of its
`
`products, and to encourage its customers to use its products and services in a
`
`manner that infringes the '906 patent.
`
`35. On information and belief, Huawei has also infringed the '906 patent
`
`by contributing to the infringement of others, including users of its wireless
`
`handsets, to infringe one or more claims of the '906 patent in violation of 35
`
`U.S.C. § 27l(c).
`
`36. On information and belief, Huawei sells devices that are a component
`
`of the patented invention of the ' 906 patent or an apparatus for use in practicing a
`
`patented process of the '906 patent and they are especially made or especially
`
`adapted for use in infringement of the ' 906 patent. In particular, the unlicensed
`
`mobile handsets sold and offered for sale by Huawei are apparatus for use in
`
`practicing one or more claimed processes of the '906 patent and are especially
`
`made or especially adapted for use in practicing one or more claimed processes of
`
`140103 FACHuawei.docx
`
`9
`
`HUAWEI EXHIBIT 1013
`HUAWEI VS. SPH
`
`000010
`
`

`

`E-
`<
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`;2
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`16
`~ 17
`18
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`1
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`Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 11 of 21
`
`the '906 patent, including through use in communications using WCDMA
`
`technology. Huawei sold these unlicensed devices despite its knowledge that they
`
`were especially made or especially adapted for use in infringement of the '906
`
`patent. Huawei was put on notice of the infringing nature of these goods since at
`
`least the time of SPH's prior complaint in July 2009.
`
`37. Huawei undertook its actions of, inter alia, making, using, offering for
`
`sale, and/or selling unlicensed systems, and products and/or services related thereto
`
`despite an objectively high likelihood that such activities infringed the '906 patent,
`
`which has been duly issued by the United States Patent and Trademark Office, and
`
`is presumed valid. Since at least the time of SPH's prior complaint in July 2009,
`
`Huawei has been aware of an objectively high likelihood that its actions
`
`constituted, and continue to constitute, infringement of the '906 patent and that the
`
`'906 patent is valid. Despite that knowledge, on information and belief, Huawei
`
`has continued its infringing activities. As such, Huawei willfully infringed the
`
`'906 patent.
`
`38. As a result ofHuawei's infringement of the '906 patent, Plaintiff SPH
`
`has suffered monetary damages and is entitled to a money judgment in an amount
`
`adequate to compensate for Huawei's infringement, but in no event less than a
`
`reasonable royalty for the use made of the invention by Huawei, enhancement of
`
`damages due to Huawei's willful infringement, and interest and costs as fixed by
`
`the Court.
`
`COUNT IV
`
`INFRINGEMENT OF U.S. PATENT NO. 5,960,029
`
`3 9.
`
`Plaintiff SPH realleges and incorporates by reference paragraphs 1-3 8
`
`above, as if fully set forth herein.
`
`40.
`
`Plaintiff SPH is the exclusive licensee of United States Patent No.
`
`5,960,029 ("the '029 patent") titled "Coherent Dual-Channel QPSK
`
`Modulator/Demodulator For CDMA Systems, And Modulating/Demodulating
`
`140103 FACHuawei.docx
`
`10
`
`HUAWEI EXHIBIT 1013
`HUAWEI VS. SPH
`
`000011
`
`

`

`1
`
`2
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`Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 12 of 21
`
`Methods Therefor." The '029 patent was duly and legally issued by the United
`
`States Patent and Trademark Office on September 28, 1999. SPH is the exclusive
`
`licensee, possessing all substantial rights, to the ' 029 patent pursuant to a license
`
`from the Electronics and Telecommunications Research Institute, a South Korean
`
`non-profit research organization, the owner of the ' 029 patent.
`
`41. On information and belief, Huawei makes and sells mobile handsets
`
`for use on a wireless network.
`
`42. On information and belief, Huawei has infringed and continues to
`
`infringe the '029 patent by, among other things, making, using, offering for sale,
`
`and/or selling unlicensed systems, and products and/or services related thereto,
`
`covered by one or more claims of the '029 pat,ent. Such unlicensed products
`
`include, by way of example and without limitation, the T-Mobile Prism II, the
`
`Premia 4G, and the Pinnacle 2 devices, all of which are covered by one or more
`
`claims of the '029 patent, including but not limited to claim 1. By making, using,
`
`offering for sale, and/or selling such systems, and products and/or services related
`
`thereto, covered by one or more claims of the '029 patent, Huawei has injured SPH
`
`and is liable to SPH for infringement of the '029 patent pursuant to 35 U.S.C. §
`
`271.
`
`E-
`<
`i:Q
`;2
`o(3
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`28
`
`43. Huawei was placed on notice of its infringement of the '029 Patent no
`
`later than approximately July 2009 as a result of a complaint filed by SPH alleging
`
`infringement of the '029 patent by Huawei. Though that action was subsequently
`
`dismissed without prejudice as to Huawei, it placed Huawei on notice of its
`
`infringing activities.
`
`44. On information and belief, Huawei has also infringed the '029 patent
`
`by inducing others, including users of its wireless handsets to infringe one or more
`
`claims of the '029 patent in violation of 35 U.S.C. § 27l(b).
`
`45. On information and belief, Huawei takes active steps to induce its
`
`customers to infringe the '029 patent by taking affirmative steps to encourage and
`
`140103 FACHuawei.docx
`
`11
`
`HUAWEI EXHIBIT 1013
`HUAWEI VS. SPH
`
`000012
`
`

`

`Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 13 of 21
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`1
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`
`facilitate direct infringement by others with knowledge of that infringement, such
`
`as, upon information and belief, by importing, offering for sale, and/or selling
`
`products and/or services that when used as intended infringe the '029 patent. For
`
`example, and without limitation, on information and belief, Huawei advertises that
`
`customers can utilize its mobile devices to communicate using 3G communications
`
`enabled pursuant to CDMA 2000 technology or WCDMA technology. Since at
`
`least time of SPH's prior complaint in July 2009, Huawei has had actual
`
`knowledge of the '029 patent and that the use of products and services by its
`
`customers constituted direct infringement of the ' 029 patent. Despite this
`
`knowledge, Huawei has continued to offer its infringing products, to facilitate and
`
`encourage infringing use of its products, and to encourage its customers to use its
`
`products and services in a manner that infringes the '029 patent.
`
`46. On information and belief, Huawei has also infringed the '029 patent
`
`by contributing to the infringement of others, including users of unlicensed
`
`wireless handsets, to infringe one or more claims of the '029 patent in violation of
`
`35 U.S.C. § 27l(c).
`
`4 7. On information and belief, Huawei sells devices that are a component
`
`of the patented invention of the '029 patent or an apparatus for use in practicing a
`
`patented process of the '029 patent and they are especially made or especially
`
`adapted for use in infringement of the '029 patent. In particular, the unlicensed
`
`mobile handsets sold and offered for sale by Huawei are apparatus for use in
`
`practicing one or more claimed processes of the ' 029 patent and are especially
`
`made or especially adapted for use in practicing one or more claimed processes of
`
`the '029 patent, including through use in communications using CDMA2000
`
`technology or WCDMA technology. Huawei sold these unlicensed devices despite
`
`its knowledge that they were especially made or especially adapted for use in
`
`infringement of the '029 patent. Huawei was put on notice of the infringing nature
`
`of these goods since at least the time of SPH 's prior complaint in July 2009.
`
`140103 FACHuawei.docx
`
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`;2
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`~
`
`16
`~ 17
`18
`
`HUAWEI EXHIBIT 1013
`HUAWEI VS. SPH
`
`000013
`
`

`

`Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 14 of 21
`
`1
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`48. Huawei undertook its actions of, inter alia, making, using, offering for
`
`sale, and/or selling unlicensed systems, and products and/or services related thereto
`
`despite an objectively high likelihood that such activities infringed the '029 patent,
`
`which has been duly issued by the United States Patent and Trademark Office, and
`
`is presumed valid. Since at least the time of SPH's prior complaint in July 2009,
`
`Huawei has been aware of an objectively high likelihood that its actions
`
`constituted, and continue to constitute, infringement of the '029 patent and that the
`
`'029 patent is valid. Despite that knowledge, on information and belief, Huawei
`
`has continued its infringing activities. As such, Huawei willfully infringed the
`
`'029 patent.
`
`49. As a result ofHuawei's infringement of the '029 patent, Plaintiff SPH
`
`has suffered monetary damages and is entitled to a money judgment in an amount
`
`adequate to compensate for Huawei's infringement, but in no event less than a
`
`reasonable royalty for the use made of the invention by Huawei, enhancement of
`
`damages due to Huawei's willful infringement, and interest and costs as fixed by
`
`the Court.
`
`COUNTV
`
`INFRINGEMENT OF U.S. PATENT NO. 8,121,173
`
`50.
`
`Plaintiff SPH realleges and incorporates by reference paragraphs 1-49
`
`above, as if fully set forth herein.
`
`51.
`
`Plaintiff SPH is the exclusive licensee of United States Patent No.
`
`8, 121 , 173 ("the '173 patent") titled "Apparatus And Method For Modulating Data
`
`Message By Employing Orthogonal Variable Spreading Factor (OVSF) Codes In
`
`Mobile Communicating System." The ' 173 patent was duly and legally issued by
`
`the United States Patent and Trademark Office on February 21, 2012. SPH is the
`
`exclusive licensee, possessing all substantial rights, to the '173 patent pursuant to a
`
`license from the Electronics and Telecommunications Research Institute, a South
`
`Korean non-profit research organization, the owner of the '173 patent.
`
`140103 FACHuawei.docx
`
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`28
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`<
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`;2
`o(3
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`0
`0
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`r.n
`
`~
`
`16
`~ 17
`18
`
`HUAWEI EXHIBIT 1013
`HUAWEI VS. SPH
`
`000014
`
`

`

`E-
`<
`i:Q
`;2
`o(3
`E-r.n
`0
`0
`0
`~
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`r.n
`
`~
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`16
`~ 17
`18
`
`1
`
`2
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`3
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`5
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`Case 3:13-cv-02323-CAB-NLS Document 8 Filed 01/03/14 Page 15 of 21
`
`52. On information and belief, Huawei makes and sells mobile handsets
`
`for use on a wireless network.
`
`53. On information and belief, Huawei has infringed and continues to
`
`infringe the '173 patent by, among other things, making, using, offering for sale,
`
`and/or selling unlicensed systems, and products and/or services related thereto,
`
`covered by one or more claims of the '173 pat,ent. Such unlicensed products
`
`include, by way of example and without limitation, the T-Mobile Prism II, the
`
`Premia 4G, and the Pinnacle 2 devices, which are covered by one or more claims
`
`of the '173 patent, including but not limited to claim 1. By making, using, offering
`
`for sale, and/or selling such systems, and products and/or services related thereto,
`
`covered by one or more claims of the '173 pat,ent, Huawei has injured SPH and is
`
`liable to SPH for infringement of the' 173 patent pursuant to 35 U.S.C. § 271.
`
`54. As a result of Huawei 's infringe