Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 1 of 20
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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:(310) 826-6991
`
`Attorneys for Plaintiff
`SPH AMERICA, LLC
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`SPH AMERICA, LLC,
`
`Case No. 3:13-cv-02326-CAB-NLS
`
`Plaintiff,
`
`vs.
`
`FIRST AMENDED COMPLAINT
`FOR PATENT INFRINGEMENT
`
`ZTE (USA), INC.,
`
`Jury Trial Demanded
`
`Defendant.
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`HUAWEI EXHIBIT 1014
`HUAWEI VS. SPH
`
`000001
`
`

`

`Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 2 of 20
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`This is an action for patent infringement arising under the Patent Laws of the
`
`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 Defendant
`
`ZTE (USA), Inc. ( "ZTE" or "Defendant").
`
`I.
`
`PARTIES
`
`1.
`
`Plaintiff SPH America, LLC is a Virginia limited liability company
`
`having a principal place of business at 8133 Leesburg Pike, Suite 310, Vienna,
`
`Virginia 22182.
`
`2.
`
`On information and belief, Defendant ZTE (USA), Inc. is a New
`
`Jersey corporation with its principal place of business at 33 Wood Avenue South,
`
`Iselin, New Jersey 08830.
`
`II.
`
`JURISDICTION AND VENUE
`
`3.
`
`This action arises under the patent laws of the United States, Title 35
`
`of the United States Code. This Court has original subject matter jurisdiction
`
`pursuant to 28 U.S.C. §§ 1331 and 1338(a).
`
`4.
`
`On information and belief, Defendant is subject to this Court's specific
`
`and general personal jurisdiction pursuant to due process and/or the California
`
`Long Arm Statute, due to having availed itself of the rights and benefits of
`
`California by engaging in activities, including: (i) conducting substantial business
`
`in this forum; and (ii) engaging in other persistent courses of conduct, and/or
`
`deriving substantial revenue from goods and services provided to individuals in
`
`California and in this Judicial District.
`
`5.
`
`Venue is proper in this district under 28 U.S.C. §§ 1391(b), 1391(c)
`
`and 1400(b). On information and belief, Defendant has engaged in activities
`
`including: transacting business in this district and purposefully directing its
`
`business activities, including the sale of infringing goods, to this district.
`
`140109 FAC ZTE FINAL.docx
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`HUAWEI EXHIBIT 1014
`HUAWEI VS. SPH
`
`000002
`
`

`

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`Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 3 of 20
`
`COUNT I
`
`INFRINGEMENT OF U.S. PATENT NO. RE 40,385
`
`6.
`
`Plaintiff SPH realleges and incorporates by reference paragraphs 1-5
`
`above, as if fully set forth herein.
`
`7.
`
`Plaintiff SPH is the exclusive licensee of United States Patent No. RE
`
`40,385 ("the '385 patent") titled "Orthogonal Complex Spreading Method For
`
`Multichannel And Apparatus Thereof." The '385 patent was duly and legally
`
`issued by the United States Patent and Trademark Office on June 17, 2008. SPH is
`
`the exclusive licensee, possessing all substantial rights, to the '385 patent pursuant
`
`to a license from the Electronics and Telecommunications Research Institute, a
`
`South Korean non-profit research organization, the owner of the '385 patent.
`
`8.
`
`On information and belief, ZTE makes and sells mobile handsets for
`
`use on a wireless network.
`
`9.
`
`On information and belief, ZTE has infringed and continues to
`
`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
`
`include, by way of example and without limitation, the Avid 4G, the Anthem 4G,
`
`the Fury, the Sprint Vital, the Boost Force, and the Warp Sequent mobile 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, 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, ZTE has injured SPH and is liable to SPH for
`
`infringement of the '385 patent pursuant to 35 U.S.C. § 271.
`
`10. ZTE 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 ZTE. Though that action was subsequently
`
`140109 FAC ZTE FINAL.docx
`
`2
`
`HUAWEI EXHIBIT 1014
`HUAWEI VS. SPH
`
`000003
`
`

`

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`Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 4 of 20
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`dismissed without prejudice as to ZTE, it placed ZTE on notice of its infringing
`
`activities.
`
`11. On information and belief, ZTE 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. § 271(b).
`
`12. On information and belief, ZTE takes active steps to induce its
`
`customers to infringe the '385 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 '385 patent. For
`
`example, and without limitation, on information and belief, ZTE advertises that
`
`customers can utilize mobile devices to communicate using its network services for
`
`3G communications enabled pursuant to CDMA2000 technology or WCDMA
`
`technology. Since at least the time of prior complaint in July 2009, ZTE has 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
`
`knowledge, ZTE has continued to offer its infringing products, to facilitate and
`
`encourage infringing use of its products, and to encourage its customers to use its
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`products and services in a manner that infringes the '385 patent.
`
`13. On information and belief, ZTE has also infringed the '385 patent by
`
`contributing to the infringement of others, including users of its handsets, to
`
`infringe one or more claims of the '385 patent in violation of 35 U.S.C. § 271(c).
`
`14. On information and belief, ZTE sells devices that are a component of
`
`the patented invention of the '385 patent or an apparatus for use in practicing a
`
`patented process of the '385 patent and they are especially made or especially
`
`adapted for use in infringement of the '385 patent. In particular, the mobile
`
`handsets sold and offered for sale by ZTE are apparatus for use in practicing one or
`
`more claimed processes of the '385 patent and are especially made or especially
`
`140109 FAC ZTE FINAL.docx
`
`3
`
`HUAWEI EXHIBIT 1014
`HUAWEI VS. SPH
`
`000004
`
`

`

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`Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 5 of 20
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`adapted for use in practicing one or more claimed processes of the '385 patent,
`
`including through use in communications using CDMA2000 technology or
`
`WCDMA technology. ZTE sold these devices despite its knowledge that they
`
`were especially made or especially adapted for use in infringement of the '385
`
`patent. ZTE was put on notice of the infringing nature of these goods since at least
`
`the time of SPH' s prior complaint in July 2009.
`
`15. ZTE 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 '385 patent,
`
`which has been duly issued by the United States Patent and Trademark Office, and
`
`is presumed valid. Since at least the time of the 2009 complaint, ZTE has been
`
`aware of an objectively high likelihood that its actions constituted, and continue to
`
`constitute, infringement of the '385 patent and that the '385 patent is valid.
`
`Despite that knowledge, on information and belief, ZTE has continued its
`
`infringing activities. As such, ZTE willfully infringed the '385 patent.
`
`16. As a result of ZTE's infringement of the '385 patent, PlaintiffSPH
`
`has suffered monetary damages and is entitled to a money judgment in an amount
`
`adequate to compensate for ZTE' s infringement, but in no event less than a
`
`reasonable royalty for the use made of the invention by ZTE, enhancement of
`
`damages due to ZTE' s willful infringement, and interest and costs as fixed by the
`
`Court.
`
`COUNT II
`
`INFRINGEMENT OF U.S. PATENT NO. RE 40,253
`
`1 7.
`
`Plaintiff SPH realleges and incorporates by reference paragraphs 1-16
`
`above, as if fully set forth herein.
`
`18.
`
`Plaintiff SPH is the exclusive licensee of United States Patent No. RE
`
`40,253 ("the '253 patent") titled "Apparatus For Making A Random Access To the
`
`Reverse Common Channel Of A Base Station In CDMA And Method Therefor."
`
`140109 FAC ZTE FINAL.docx
`
`4
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`HUAWEI EXHIBIT 1014
`HUAWEI VS. SPH
`
`000005
`
`

`

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`Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 6 of 20
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`The '253 patent was duly and legally issued by the United States Patent and
`
`Trademark Office on April 22, 2008. SPH is the exclusive licensee, possessing all
`
`substantial rights, to the '253 patent pursuant to a license from the Electronics and
`
`Telecommunications Research Institute, a South Korean non-profit research
`
`organization, the owner of the '253 patent.
`
`19. On information and belief, ZTE makes and sells mobile handsets for
`
`use on a wireless network.
`
`20. On information and belief, ZTE has infringed and continues to
`
`infringe the '253 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 '253 patent. Such unlicensed products
`
`include, by way of example and without limitation, the Avid 4G and Anthem 4G
`
`mobile devices, which are covered by one or more claims of the '253 patent,
`
`including but not limited to claim 34. 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 '253 patent, ZTE has injured SPH and is liable to SPH for
`
`infringement of the '253 patent pursuant to 35 U.S.C. § 271.
`
`21. ZTE was placed on notice of its infringement of the '253 Patent no
`
`later than approximately July 2009 as a result of a complaint filed by SPH alleging
`
`infringement of the '253 patent by ZTE. Though that action was subsequently
`
`dismissed without prejudice as to ZTE, it placed ZTE on notice of its infringing
`
`activities.
`
`22. On information and belief, ZTE has also infringed the '253 patent by
`
`inducing others, including users of its wireless handsets, to infringe one or more
`
`claims of the '253 patent in violation of 35 U.S.C. § 271(b).
`
`23. On information and belief, ZTE takes active steps to induce its
`
`customers to infringe the '253 patent by taking affirmative steps to encourage and
`
`facilitate direct infringement by others with knowledge of that infringement, such
`
`140109 FAC ZTE FINAL.docx
`
`5
`
`HUAWEI EXHIBIT 1014
`HUAWEI VS. SPH
`
`000006
`
`

`

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`Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 7 of 20
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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
`
`example, and without limitation, on information and belief, ZTE 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, ZTE has had actual knowledge of the '253 patent and that the use of
`
`products and services by its customers constituted direct infringement of the '253
`
`patent. Despite this knowledge, ZTE 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 '253
`
`patent.
`
`24. On information and belief, ZTE has also infringed the '253 patent by
`
`contributing to the infringement of others, including users of its wireless handsets,
`
`to infringe one or more claims of the '253 patent in violation of 35 U.S.C. §
`
`271(c).
`
`25. On information and belief, ZTE sells devices that are a component of
`
`the patented invention of the '253 patent or an apparatus for use in practicing a
`
`patented process of the '253 patent and they are especially made or especially
`
`adapted for use in infringement of the '253 patent. In particular, the mobile
`
`handsets sold and offered for sale by ZTE are apparatus for use in practicing one or
`
`more claimed processes of the '253 patent and are especially made or especially
`
`adapted for use in practicing one or more claimed processes of the '253 patent,
`
`including through use in communications using WCDMA technology. ZTE sold
`
`these unlicensed devices despite its knowledge that they were especially made or
`
`especially adapted for use in infringement of the '253 patent. ZTE was put on
`
`notice of the infringing nature of these goods since at least the time of SPH's prior
`
`complaint in July 2009.
`
`140109 FAC ZTE FINAL.docx
`
`6
`
`HUAWEI EXHIBIT 1014
`HUAWEI VS. SPH
`
`000007
`
`

`

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`Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 8 of 20
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`26. ZTE 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,
`
`ZTE 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, ZTE has continued its
`
`infringing activities. As such, ZTE willfully infringed the '253 patent.
`
`27. As a result of ZTE's infringement of the '253 patent, PlaintiffSPH
`
`has suffered monetary damages and is entitled to a money judgment in an amount
`
`adequate to compensate for ZTE' s infringement, but in no event less than a
`
`reasonable royalty for the use made of the invention by ZTE, enhancement of
`
`damages due to ZTE' s willful infringement, and interest and costs as fixed by the
`
`Court.
`
`COUNT III
`
`INFRINGEMENT OF U.S. PATENT NO. 7,443,906
`
`28.
`
`Plaintiff SPH realleges and incorporates by reference paragraphs 1-27
`
`above, as if fully set forth herein.
`
`29.
`
`Plaintiff SPH is the exclusive licensee of United States Patent No.
`
`7,443,906 ("the '906 patent") titled "Apparatus and Method For Modulating Data
`
`Message by Employing Orthogonal Variable Spreading Factor (OVSF) Codes In
`
`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.
`
`140109 FAC ZTE FINAL.docx
`
`7
`
`HUAWEI EXHIBIT 1014
`HUAWEI VS. SPH
`
`000008
`
`

`

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`Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 9 of 20
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`30. On information and belief, ZTE makes and sells mobile handsets for
`
`use on a wireless network.
`
`31. On information and belief, ZTE 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 patent. Such unlicensed products
`
`include, by way of example and without limitation, the Avid 4G and Anthem 4G
`
`mobile 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, ZTE has injured SPH and is liable to SPH for
`
`infringement of the '906 patent pursuant to 35 U.S.C. § 271.
`
`32. ZTE 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 ZTE. Though that action was subsequently
`
`dismissed without prejudice as to ZTE, it placed ZTE on notice of its infringing
`
`activities.
`
`33. On information and belief, ZTE 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. § 271(b).
`
`34. On information and belief, ZTE 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, ZTE 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
`
`140109 FAC ZTE FINAL.docx
`
`8
`
`HUAWEI EXHIBIT 1014
`HUAWEI VS. SPH
`
`000009
`
`

`

`E-<
`
`< P=l
`;2
`d8
`E-<
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`~
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`~
`~
`r
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`~ 17
`18
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`28
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`Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 10 of 20
`
`complaint in July 2009, ZTE 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, ZTE 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, ZTE 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. §
`
`271(c).
`
`36. On information and belief, ZTE 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 ZTE 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
`
`the '906 patent, including through use in communications using WCDMA
`
`technology. ZTE sold these unlicensed devices despite its knowledge that they
`
`were especially made or especially adapted for use in infringement of the '906
`
`patent. ZTE 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. ZTE 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,
`
`ZTE has been aware of an objectively high likelihood that its actions constituted,
`
`140109 FAC ZTE FINAL.docx
`
`9
`
`HUAWEI EXHIBIT 1014
`HUAWEI VS. SPH
`
`000010
`
`

`

`Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 11 of 20
`
`and continue to constitute, infringement of the '906 patent and that the '906 patent
`
`is valid. Despite that knowledge, on information and belief, ZTE has continued its
`
`infringing activities. As such, ZTE willfully infringed the '906 patent.
`
`3 8. As a result of ZTE' 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 ZTE' s infringement, but in no event less than a
`
`reasonable royalty for the use made of the invention by ZTE, enhancement of
`
`damages due to ZTE' 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
`
`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, ZTE makes and sells mobile handsets for
`
`use on a wireless network.
`
`42. On information and belief, ZTE 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 patent. Such unlicensed products
`
`include, by way of example and without limitation, the Avid 4G, the Anthem 4G,
`
`140109 FAC ZTE FINAL.docx
`
`10
`
`E-<
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`< P=l
`;2
`d8
`E-<
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`0
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`16
`~ 17
`18
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`1
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`2
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`3
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`4
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`5
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`6
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`7
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`24
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`25
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`26
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`27
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`28
`
`HUAWEI EXHIBIT 1014
`HUAWEI VS. SPH
`
`000011
`
`

`

`E-<
`
`< P=l
`;2
`d8
`E-<
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`~
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`16
`~ 17
`18
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`1
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`2
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`3
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`4
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`5
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`Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 12 of 20
`
`the Fury, the Sprint Vital, the Boost Force, and the Warp Sequent mobile 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, ZTE has injured SPH and is liable to SPH for
`
`infringement of the '029 patent pursuant to 35 U.S.C. § 271.
`
`43. ZTE 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 ZTE. Though that action was subsequently
`
`dismissed without prejudice as to ZTE, it placed ZTE on notice of its infringing
`
`activities.
`
`44. On information and belief, ZTE 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. § 271(b).
`
`45. On information and belief, ZTE takes active steps to induce its
`
`customers to infringe the '029 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 '029 patent. For
`
`example, and without limitation, on information and belief, ZTE 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, ZTE 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, ZTE
`
`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.
`
`140109 FAC ZTE FINAL.docx
`
`11
`
`HUAWEI EXHIBIT 1014
`HUAWEI VS. SPH
`
`000012
`
`

`

`E-<
`
`< P=l
`;2
`d8
`E-<
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`~
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`16
`~ 17
`18
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`1
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`2
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`5
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`Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 13 of 20
`
`46. On information and belief, ZTE 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. § 271(c).
`
`4 7. On information and belief, ZTE 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 ZTE 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. ZTE sold these unlicensed devices despite its
`
`knowledge that they were especially made or especially adapted for use in
`
`infringement of the '029 patent. ZTE was put on notice of the infringing nature of
`
`these goods since at least the time of SPH' s prior complaint in July 2009.
`
`48. ZTE 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,
`
`ZTE 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, ZTE has continued its
`
`infringing activities. As such, ZTE willfully infringed the '029 patent.
`
`49. As a result of ZTE's infringement of the '029 patent, PlaintiffSPH
`
`has suffered monetary damages and is entitled to a money judgment in an amount
`
`adequate to compensate for ZTE' s infringement, but in no event less than a
`
`140109 FAC ZTE FINAL.docx
`
`12
`
`HUAWEI EXHIBIT 1014
`HUAWEI VS. SPH
`
`000013
`
`

`

`Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 14 of 20
`
`reasonable royalty for the use made of the invention by ZTE, enhancement of
`
`damages due to ZTE' 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 '1 73 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 ' 1 73 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.
`
`52. On information and belief, ZTE makes and sells mobile handsets for
`
`use on a wireless network.
`
`53. On information and belief, ZTE 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 patent. Such unlicensed products
`
`include, by way of example and without limitation, the Avid 4G and Anthem 4G
`
`mobile 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 '1 73 patent, ZTE has injured SPH and is liable to SPH for
`
`infringement of the' 173 patent pursuant to 35 U.S.C. § 271.
`
`140109 FAC ZTE FINAL.docx
`
`13
`
`E-<
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`E-<
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`16
`~ 17
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`1
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`2
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`3
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`4
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`5
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`6
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`7
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`8
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`
`HUAWEI EXHIBIT 1014
`HUAWEI VS. SPH
`
`000014
`
`

`

`1
`
`2
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`3
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`15
`
`Case 3:13-cv-02326-CAB-KSC Document 17 Filed 01/09/14 Page 15 of 20
`
`54. As a result of ZTE's infringement of the '173 patent, PlaintiffSPH
`
`has suffered monetary damages and is entitled to a money judgment in an amount
`
`adequate to compensate for ZTE' s infringement, but in no event less than a
`
`reasonable royalty for the use made of the invention by ZTE, and interest and costs
`
`as fixed by the Court.
`
`COUNT VI
`
`INFRINGEMENT OF U.S. PATENT NO. RE 44,507
`
`55.
`
`Plaintiff SPH realleges and incorporates by reference paragraphs 1-54
`
`above, as if fully set forth herein.
`
`56.
`
`Plaintiff SPH is the exclusive licensee of United States Patent No. RE
`
`44,507 ("the '507 patent") titled "Orthogonal Complex Spreading Method for
`
`Multichannel and Apparatus Thereof." The '507 patent was duly and legally
`
`issued by the United States Patent and Trademark Office on September 24, 2013.
`
`SPH is the exclusive licensee, possessing all substantial rights, to the '507 patent
`
`pursuant to a license from the Electronics and Telecommunications Research
`
`Institute, a South Korean non-profit research