Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 1 of 38 PageID# 1
`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 1 of 38 Page|D# 1
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF VIRGINIA
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`(Alexandria Division)
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`'
`Civil Action No. 1. ”1- Cu. fl];
`TS Z / ‘1- DD
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`""
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`JURY TRIAL DEMANDEI)
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`t'ff,
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`[’1'
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`TLI COMMUNICATIONS LLC,
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`AV AUTOMOTIVE, L.L.C.
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`FOR A SONG, INC.
`HALL AUTOMOTIVE, LLC,
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`MAX MEDIA LLC,
`FACEBOOK, INC. and
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`INSTAGRAM, LLC
`Defendants.
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`)
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`)
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`)
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff TLI Communications LLC (“TU") tiles this Complaint for Patent Infringement
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`against AV Automotive. L.L.C. ("AV Automotive"). For a Song. Inc. ("For a Song"). I-lall
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`Automotive, LLC (“I-Iall Automotive"). Max Media LLC (“Max Media"). Facebook. Inc.
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`(“Facebook”) and Instagram. LLC (“Instagram”). wherein. pursuant to 35 U.S.C. §§ 271 and
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`281, Plaintiff seeks ajudgment of infringement by Defendants of US. Patent Nos. 6.038.295 (the
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`"'295 Patent"). damages resulting therefrom pursuant to 35 U.S.C. § 284. as well as a
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`preliminary and permanent injunction of the infringing activity pursuant to 35 U.S.C. § 283, and
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`such other relief as the Court deemsjust and proper. and in support thereof alleges as follows:
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`The Parties
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`].
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`I’laintiff'I‘LI is a Delaware limited liability company with its principal place of
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`business at 3422 Old Capitol Trail- Suite 72. Wilmington. Delaware 19808.
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`2.
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`Defendant AV Automotive. L.L.C. is a limited liability company organized under
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`the laws ofthe State ofVirginia. with its principal place ofbusiness at 1902 Association Drive.
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`001
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`Facebook/Instagram Ex. 1012
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`Facebook/Instagram Ex. 1012
`
`001
`
`

`

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`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 2 of 38 Page|D# 2
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`Reston, Virginia 2019]. AV Automotive operates several car dealerships in the Northern
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`Virginia region, including BMW of Alexandria, 499 South Pickett Street Alexandria, Virginia
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`22304.
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`3.
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`Defendant For a Song, Inc. is a corporation organized under the laws of the State
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`of Virginia, with its principal place of business at 370] Mount Vernon Avenue, Alexandria,
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`Virginia 22305. For a Song owns and operates The Music Hall at the Birchmere.
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`4.
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`Defendant Hall Automotive, LLC is a limited liability company organized under
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`the laws of the State of Virginia, with its principal place of business at 441 Viking Drive,
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`Virginia Beach, Virginia 23452.
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`5.
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`Defendant Max Media LLC is a limited liability company organized under the
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`laws of the State of Virginia, with its principal place of business at 900 Laskin Road, Virginia
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`Beach, Virginia 2345]. Max Media operates several radio stations in Virginia, including FM
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`92.9 WVBW, FM 97.3 and FM 100.5 in Norfolk, Virginia; FM 94.] WVSP in Yorktown,
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`Virginia; and AM 1310 WGH in Newport News, Virginia.
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`6.
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`Defendant Facebook is a corporation organized under the laws of the State of
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`Delaware, with its principal place of business at 1601 Willow Road, Menlo Park, California
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`94025.
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`7.
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`Defendant Instagram, LLC is a limited liability company organized under the
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`laws of the State of Delaware, with its principal place of business at 1601 Willow Road, Menlo
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`Park, California 94025. Facebook acquired Instagram in August 2012 and Instagram is now a
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`wholly owned subsidiary of Facebook.
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`2
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`002
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`Facebook/Instagram Ex. 1012
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`Facebook/Instagram Ex. 1012
`
`002
`
`

`

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`Jurisdiction and Venue
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`8.
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`This is an action for patent infringement arising under the Patent Laws of the
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`United States, Title 35 of the United States Code.
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`9.
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`This Court has subject matterjurisdiction over this action pursuant to 28 U.S.C.
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`§§ 1331 and 1338(a) because the action concerns infringement of a United States patent.
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`10.
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`This Court has personal jurisdiction over AV Automotive because AV
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`Automotive is located in this district and it conducts substantial business in this district, directly
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`or through intermediaries, including: (i) at least a portion of the infringements alleged herein;
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`and (ii) regularly doing or soliciting business in this district, engaging in other persistent courses
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`of conduct in this district and/or deriving substantial revenue from goods and services provided
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`to individuals in this district. Further, this Court has personal jurisdiction over AV Automotive
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`because it is a Virginia limited liability company and it has purposely availed itself of the
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`privileges and benefits of the laws of the State of Virginia.
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`1 1.
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`Venue is proper in this judicial district as to AV Automotive pursuant to 28
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`U.S.C. §§ 1391 and 1400(b) because, among other reasons, AV Automotive is subject to
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`personal jurisdiction in this district, AV Automotive is located in this district, AV Automotive
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`has facilities and employees in this district, and AV Automotive has committed and continues to
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`commit acts of patent infringement in this district. For example, AV Automotive uses infringing
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`products and services in this district. Moreover, to the extent any patent claim is construed to
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`require a system, AV Automotive places that system into use in this district.
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`12.
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`This Court has personal jurisdiction over For a Song because For a Song is
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`located in this district and it conducts substantial business in this district, directly or through
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`intermediaries, including: (i) at least a portion of the infringements alleged herein; and (ii)
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`3
`
`003
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`Facebook/Instagram Ex. 1012
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`Facebook/Instagram Ex. 1012
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`003
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`

`

`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 4 of 38 PageID# 4
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`regularly doing or soliciting business in this district, engaging in other persistent courses of
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`conduct in this district and/or deriving substantial revenue from goods and services provided to
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`individuals in this district. Further, this Court has personal jurisdiction over For a Song because
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`it is a Virginia corporation and it has purposely availed itself of the privileges and benefits of the
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`laws of the State of Virginia.
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`13.
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`Venue is proper in this judicial district as to For a Song pursuant to 28 U.S.C. §§
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`1391 and 1400(b) because, among other reasons, For a Song is subject to personal jurisdiction in
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`this district, For a Song is located in this district, For a Song has facilities and employees in this
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`district, and For a Song has committed and continues to commit acts of patent infringement in
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`this district. For example, For a Song uses infringing products and services in this district.
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`Moreover, to the extent any patent claim is construed to require a system, For a Song places that
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`system into use in this district.
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`14.
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`This Court has personal jurisdiction over Hall Automotive because I-Iall
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`Automotive is located in this district and it conducts substantial business in this district, directly
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`or through intermediaries, including: (i) at least a portion of the infringements alleged herein;
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`and (ii) regularly doing or soliciting business in this district, engaging in other persistent courses
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`of conduct in this district and/or deriving substantial revenue from goods and services provided
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`to individuals in this district. Further, this Court has personal jurisdiction over Hall Automotive
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`because it is a Virginia limited liability company and it has purposely availed itself of the
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`privileges and benefits of the laws of the State of Virginia.
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`15.
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`Venue is proper in this judicial district as to Hall Automotive pursuant to 28
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`U.S.C. §§ 1391 and 1400(b) because, among other reasons, Hall Automotive is subject to
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`personal jurisdiction in this district, Hall Automotive is located in this district, Hall Automotive
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`4
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`004
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`Facebook/Instagram Ex. 1012
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`Facebook/Instagram Ex. 1012
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`004
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`

`

`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 5 of 38 PageID# 5
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`has facilities and employees in this district, and Hall Automotive has committed and continues to
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`commit acts of patent infringement in this district. For example, Hall Automotive uses
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`infringing products and services in this district. Moreover, to the extent any patent claim is
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`construed to require a system, Hall Automotive places that system into use in this district.
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`16.
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`This Court has personal jurisdiction over Max Media because Max Media is
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`located in this district and it conducts substantial business in this district, directly or through
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`intermediaries, including: (i) at least a portion of the infringements alleged herein; and (ii)
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`regularly doing or soliciting business in this district, engaging in other persistent courses of
`
`conduct in this district and/or deriving substantial revenue from goods and services provided to
`
`individuals in this district. Further, this Court has personal jurisdiction over Max Media because
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`it is a Virginia limited liability company and it has purposely availed itself of the privileges and
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`benefits of the laws of the State of Virginia.
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`17.
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`Venue is proper in thisjudicial district as to Max Media pursuant to 28 U.S.C. §§
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`1391 and 1400(b) because, among other reasons, Max Media is subject to personal jurisdiction in
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`this district, Max Media is located in this district, Max Media has facilities and employees in this
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`district, and Max Media has committed and continues to commit acts of patent infringement in
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`this district. For example, Max Media uses infringing products and services in this district.
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`Moreover, to the extent any patent claim is construed to require a system, Max Media places that
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`system into use in this district.
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`18.
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`This Court has personal jurisdiction over Facebook because Facebook conducts
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`substantial business in this district, directly or through intermediaries, including: (i) at least a
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`portion of the infringements alleged herein; and (ii) regularly doing or soliciting business in this
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`district, engaging in other persistent courses of conduct in this district, deriving substantial
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`5
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`005
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`Facebook/Instagram Ex. 1012
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`Facebook/Instagram Ex. 1012
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`005
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`

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`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 6 of 38 PageID# 6
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`revenue from goods and services provided to individuals in this district, maintaining continuous
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`and systematic contacts with this district, and/or purposely availing itself of the privileges of
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`doing business in Virginia.
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`19.
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`Venue is proper in this judicial district as to Facebook pursuant to 28 U.S.C. §§
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`1391 and 1400(b) because, among other reasons, Facebook is subject to personaljurisdiction in
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`this district and Facebook has committed and continues to commit acts of patent infringement in
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`this district. For example, Facebook has used, sold, offered for sale, and/or imported infringing
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`products and services in this district. Facebook, for example, provides infringing web pages and
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`software in this district, and thus directly infringes the ’295 Patent in this district, and, to the
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`extent any claim is construed to require a system, (i) Facebook puts that system into use in this
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`district by providing infringing web pages and sofiware in this district, and thus directly infringes
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`the ’295 Patent in this district and elsewhere, (ii) Facebook provides key components of the
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`system to its users, including to Hall Automotive, For a Song, Max Media and AV Automotive,
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`in this district and thus contributorily infringes the ’295 Patent in this district and elsewhere,
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`and/or (iii) Facebook induces its users, including Hall Automotive, For a Song, Max Media and
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`AV Automotive, to use the system and to put the system into use, and thus induces infringement
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`of the ’295 Patent in this district and elsewhere.
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`20.
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`This Court has personal jurisdiction over lnstagram because lnstagram conducts
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`substantial business in this district, directly or through intermediaries, including: (i) at least a
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`portion of the infringements alleged herein; and (ii) regularly doing or soliciting business in this
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`district, engaging in other persistent courses of conduct in this district, deriving substantial
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`revenue from goods and services provided to individuals in this district, maintaining continuous
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`6
`
`006
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`Facebook/lnstagram Ex. 1012
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`Facebook/Instagram Ex. 1012
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`006
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`

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`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 7 of 38 PageID# 7
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`and systematic contacts with this district, and/or purposely availing itself of the privileges of
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`doing business in Virginia.
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`21.
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`Venue is proper in this judicial district as to Instagram pursuant to 28 U.S.C. §§
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`1391 and 1400(b) because, among other reasons, Instagram is subject to personal jurisdiction in
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`this district and Instagram has committed and continues to commit acts of patent infringement in
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`this district. For example, Instagram has used, sold, offered for sale, and/or imported infringing
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`products and services in this district. Instagram, for example, provides infringing web pages and
`
`software in this district, and thus directly infringes the ’295 Patent in this district, and, to the
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`extent any claim is construed to require a system, (i) Instagram puts that system into use in this
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`district by providing infringing web pages and software in this district, and thus directly infringes
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`the ’295 Patent in this district and elsewhere, (ii) Instagram provides key components of the
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`system to its users, including to Hall Automotive, For a Song, Max Media and AV Automotive,
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`and thus contributorily infringes the ’295 Patent in this district and elsewhere, and/or (iii)
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`Facebook induces its users, including Hall Automotive, For a Song, Max Media and AV
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`Automotive, to use the system and to put the system into use, and thus induces infringement of
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`the ’295 Patent in this district and elsewhere.
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`22.
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`Joinder is proper under 35 U.S.C. § 299 because, and as explained further below,
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`Facebook and Instagram provide the same infringing platform to AV Automotive, For a Song,
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`Hall Automotive and Max Media, and Facebook and Instagram instruct them how to use the
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`platform and how to put the platform into use. As a result, AV Automotive, Facebook and
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`Instagram are jointly and severally liable for infringement arising out of the same series of
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`transaction or occurrences related to the use of the same infringing platform. Similarly, For a
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`Song, Facebook and Instagram are jointly and severally liable for infringement arising out of the
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`7
`
`007
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`Facebook/Instagram Ex. 1012
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`Facebook/Instagram Ex. 1012
`
`007
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`

`

`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 8 of 38 PageID# 8
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`same series of transactions or occurrences related to the use of the same infringing platform.
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`Hall Automotive, Facebook and Instagram are jointly and severally liable for infringement
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`arising out of the same series of transactions or occurrences related to the use of the same
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`infringing platform. And Max Media, Facebook and Instagram are jointly and severally liable
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`for infringement arising out of the same series of transactions or occurrences related to the use of
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`the same infringing platform. Questions and facts common to all defendants will arise in the
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`action.
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`The Patent-in-Suit
`
`23.
`
`TLI is the owner of the ’295 Patent entitled “Apparatus and Method for
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`Recording, Communicating and Administering Digital Images,” which the United States Patent
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`& Trademark Office lawfully and duly issued on March 14, 2000. A true and correct copy of the
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`’295 Patent is attached hereto as Exhibit A.
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`Factual Background
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`24.
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`Dr. Heinz Mattes is the named inventor of the ’295 patent.
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`25.
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`The ’295 patent has a priority date of June 17, 1996. The ’295 patent was
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`originally assigned to Siemens Aktiengesellschaft of Munich, Germany. TLI is the current
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`owner of the ’295 patent via assignment.
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`26.
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`In the mid 1990’s, Dr. Mattes, while working as a scientist for Siemens,
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`recognized that mobile telephony and digital photography, each then in their infancy, would
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`likely become more and more popular. Dr. Mattes recognized that mobile telephones could be
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`integrated with digital cameras, resulting in a proliferation of the quantity of digital images that
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`could and would be taken.
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`8
`
`008
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`Facebook/lnstagram Ex. 1012
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`Facebook/Instagram Ex. 1012
`
`008
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`

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`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 9 of 38 PageID# 9
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`27.
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`Dr. Mattes invented a revolutionary way of communicating and recording such
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`digital images, which allowed numerous images to be simply and quickly recorded, tracked,
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`accessed and transmitted.
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`28.
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`In 1996, Dr. Mattes’ invention was among the winners of a Siemens idea
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`competition, leading to Siemens initiating a project to develop a cellular telephone with an
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`integrated camera.
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`29.
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`The ’295’s patented inventions are applicable to the uploading and organization
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`of digital images from a telephone. Over the past few years, smart cellular telephones that
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`incorporate sophisticated digital cameras have exploded in popularity, as has social media.
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`Today, hundreds of millions of digital images are uploaded onto computer servers and social
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`media websites every day, including onto Facebook and Facebook’s lnstagram. Facebook’s
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`products use the ’295’s patented technology, without license or authority, to classify those
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`images so that they can be easily uploaded, stored, organized, retrieved and shared.
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`Facebook‘s Infringing Products
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`30.
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`Facebook owns and operates the widely used social networking service accessible
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`for example on the World Wide Web at the web address of www.facebook.com and through
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`specialized mobile applications. Facebook also owns Instagram, which is a social networking
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`service accessible for example on the World Wide Web at the web address of
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`www.instagram.com and through specialized mobile applications. Facebook provides web based
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`products and services, including its Facebook and Instagram products. Facebook’s revenues are
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`attributed to, among other things, advertising and fee-based services.
`
`9
`
`009
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`Facebook/lnstagram Ex. 1012
`
`Facebook/Instagram Ex. 1012
`
`009
`
`

`

`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 10 of 38 PageID# 10
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`31.
`
`Facebook purports to be the “most popular photo uploading service on the web.”l
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`“People can upload an unlimited number of high resolution photos, create photo albums, and
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`share them with their friends or any audience they choose.”2 Facebook purports that it has over
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`550 million daily active users that access Facebook from mobile devices.3 In the fourth quarter
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`of 2012, Facebook purported that, on average, it uploaded more than 350 million images per
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`day.4
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`32.
`
`Facebook offers websites, software and downloadable applications, especially
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`designed for mobile devices having telephones, including iPhone and Android mobile
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`telephones, and other mobile telephone platforms, which allow telephone users to easily
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`characterize and upload digital images to Facebook and/or Instagram servers. Facebook image-
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`uploading sofiware is preloaded on many mobile telephones, and its website can be directly
`
`accessed from many mobile telephones, which also uploads digital images characterized with
`
`user-information. Facebook also provides downloadable applications, which also provide for
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`uploading digital images to Facebook servers. Facebook entices its users to upload digital
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`images by providing easy-to-use platforms and instructions, and Facebook stores and archives
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`the digital images uploaded to its servers using the characterization information provided by its
`
`users.5 As a result, visitors are attracted to Facebook where they can easily view, retrieve and
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`share those images, resulting in more visitors to Facebook, and increased Facebook revenues.
`
`; Facebook Form 10k (Annual Report) for the fiscal year ending December 31, 2012 at 6.
`Id.
`3 Facebook Form 10k (Annual Report) for the fiscal year ending December 31, 2013 at 5.
`4 Facebook Form 10k (Annual Report) for the fiscal year ending December 31, 2012 at 5.
`5 See http://files.shareholder.com/downloads/AMDA-NJSDZ/2930224485x0x721 81 l/f028299e-
`a5b9-4ed5-9a2d-e3f0923ef261/FacebookReportsFourthQuarterAndFullYear201 3Results.pdf
`(Facebook’s Fourth Quarter 2013 Results, reporting that 945 million of its 1.2 billion monthly
`active users were mobile active users).
`
`to
`
`010
`
`Facebook/Instagram Ex. 1012
`
`Facebook/Instagram Ex. 1012
`
`010
`
`

`

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`33.
`
`So that these digital images could be captured, uploaded, stored and organized,
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`Facebook fashioned products and processes that, on information and belief, employ TLI’s
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`patented technology. The infringing products include, but are not limited to, the products and
`
`processes that Facebook uses to capture, upload, store and organize the digital images it receives
`
`from mobile devices having telephones, including via Facebook and Instagram.
`
`lnstagram’s Infringing Products
`
`34.
`
`Instagram provides web based products and services, including its instagram.com
`
`products. Facebook purports that “Instagram is a mobile app and website that enable people to
`
`take photos or videos, customize them with filter effects, and share them with friends and
`
`followers in a photo feed or send them directly to friends.”6
`
`35.
`
`Instagram recently released software and platforms, especially designed for
`
`mobile devices having telephones, including iPhone and Android mobile telephones, and other
`
`mobile telephone platforms, which allow telephone users to easily characterize and upload
`
`digital images to Instagram and/or Facebook servers. So that these digital images could be
`
`captured, uploaded, stored and organized, Instagram fashioned products and processes that
`
`employ TLI’s patented technology. The infringing products include, but are not limited to, the
`
`products and processes that Instagram uses to capture, upload, store and organize the digital
`
`images it receives from mobile devices having telephones, including via Facebook and
`
`Instagram.
`
`6 Facebook Form 10k (Annual Report) for the fiscal year ending December 31, 2013 at 7.
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`II
`
`011
`
`Facebook/Instagram Ex. 1012
`
`Facebook/Instagram Ex. 1012
`
`011
`
`

`

`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 12 of 38 PageID# 12
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`AV Automotive’s Infringing Products
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`36.
`
`AV Automotive uses Facebook and lnstagram to market its services and
`
`products? AV Automotive’s customers can access Facebook and lnstagram directly, for
`
`example, at www.facebook.com and m.facebook.com, including access to the digital images that
`
`Facebook and lnstagram uploaded, archived and characterized on AV Automotive’s behalf. In
`
`addition, AV Automotive provides direct links to Facebook and lnstagram on its website.8
`
`37.
`
`AV Automotive captures digital images on mobile devices having telephones and
`
`it uploads those images to databases where those images are archive and stored, including to
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`Facebook’s databases and Instagram’s databases.9 Those images are uniquely identified and
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`characterized by AV Automotive, or persons acting on AV Automotive’s behalf, and can be
`
`easily accessed on the databases using those identifiers and characterizations.lo Such actions of
`
`uploading digital images from mobile devices having telephones infringe one or more claims of
`
`the ’295 Patent.
`
`For a Song’s Infringing Products
`
`38.
`
`For a Song uses Facebook and lnstagram to market its services and products.ll
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`For a Song’s customers can access Facebook and lnstagram directly, for example, at
`
`www.facebook.com, m.facebook.com and instagram.com, including access to the digital images
`
`7 See, e.g., https://www.facebook.com/BMWofAlexandriaArlington;
`http://instagram.com/bmwofalexandria#.
`8 See, e.g., http://www.bmwofalexandria.com/.
`9 See, e.g., https://www.facebook.com/BMWofAlexandriaArlington/photos_albums;
`http://instagram.com/bmwofalexandria#.
`I0
`.
`See 10'.
`” See, e.g., https:l/www.facebook.com/birchmere; http://instagram.com/thebirchmere.
`
`12
`
`012
`
`Facebook/lnstagram Ex. 1012
`
`Facebook/Instagram Ex. 1012
`
`012
`
`

`

`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 13 of 38 PageID# 13
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`that Facebook and/or Instagram uploaded, archived and characterized on For a Song’s behalf. In
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`addition, For a Song provides direct links to Facebook and Instagram on its website.”
`
`39.
`
`For a Song captures digital images on mobile devices having telephones and it
`
`uploads those images to databases where those images are archive and stored, including to
`
`Facebook’s databases.l3 Those images are uniquely identified and characterized by For a Song,
`
`or persons acting on For a Song’s behalf, and can be easily accessed on the databases using those
`
`identifiers and characterizations.l4 Such actions of uploading digital images from mobile devices
`
`having telephones infringe one or more claims of the ’295 Patent.
`
`Hall Automotive’s Infringing Products
`
`40.
`
`Hall Automotive uses Facebook to market its services and products.'5 Hall
`
`Automotive’s customers can access Facebook directly, for example, at www.facebook.com and
`
`m.facebook.com, including access to the digital images that Facebook uploaded, archived and
`
`characterized on Hall Automotive’s behalf.
`
`In addition, Hall Automotive provides direct links to
`
`Facebook on its website. '6
`
`41.
`
`Hall Automotive captures digital images on mobile devices having telephones and
`
`it uploads those images to databases where those images are archive and stored, including to
`
`Facebook’s databases.l7 Those images are uniquely identified and characterized by Hall
`
`Automotive, or persons acting on Hall Automotive’s behalf, and can be easily accessed on the
`
`'2 See http://www.birchmere.com/.
`'3 See, e.g., https://www.facebook.com/birchmere/photos_stream;
`http://instagram.com/thebirchmere.
`'4 See id.
`'5 See, e.g., https://www.facebook.com/HallAutomotive/photos_stream.
`'6 See http://www.hallauto.com/.
`'7 See, e.g., https://www.facebook.com/HallAutomotive/photos_stream.
`
`13
`
`013
`
`Facebook/Instagram Ex. 1012
`
`Facebook/Instagram Ex. 1012
`
`013
`
`

`

`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 14 of 38 PageID# 14
`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 14 of 38 PagelD# 14
`
`databases using those identifiers and characterizations. Such actions of uploading digital images
`
`from mobile devices having telephones infringe one or more claims of the ’295 Patent.
`
`Max Media’s Infringing Products
`
`42.
`
`Max Media uses Facebook and Instagram to market its services and products.‘8
`
`Max Media’s customers can access Facebook and Instagram directly, for example, at
`
`www.facebook.com and m.facebook.com, including access to the thousands of digital images
`
`that Facebook and Instagram uploaded, archived and characterized on Max Media’s behalf. In
`
`addition, Max Media provides direct links to Facebook and/or Instagram on the websites of its
`
`radio stations.19
`
`43.
`
`Max Media captures digital images on mobile devices having telephones and it
`
`uploads those images to databases where those images are archive and stored, including to
`
`Facebook’s databases and Instagram’s databases.20 Those images are uniquely identified and
`
`characterized by Max Media, or persons acting on Max Media’s behalf, and can be easily
`
`accessed on the databases using those identifiers and characterizations.2| Such actions of
`
`uploading digital images from mobile devices having telephones infringe one or more claims of
`
`the ’295 Patent.
`
`'3 See, e.g.,https://www.facebook.com/929thewave?ref=ts&fref=ts;
`https://www.facebook.com/973theeagle; https://www.facebook.com/Star13 1 O;
`https://www.facebook.com/ESPNRadio94 l ?ref=ts&fref=ts; www.facebook.com/hot1005;
`http://instagram.com/973theeagle; http://instagram.com/hot1005.
`'9 See, e.g., http://www.eagle97.com; http://www.929thewave.com; http://www.starl3lO.com;
`http://www.espnradio94l .com; www.hot1005.com.
`20 See, e.g.,https://www.facebook.com/929thewave/photos_albums;
`https://www.facebook.com/973theeagle/photos_albums;
`https://www.facebook.com/Starl310/photos_albums;
`https://www.facebook.com/ESPNRadio94l/photos_albums;
`https://www.facebook.com/hotl 005/photos_albums; http://instagram.com/9731heeagle;
`http://instagram.com/hot1005.
`2‘ See id.
`
`14
`
`014
`
`Facebook/lnstagram Ex. 1012
`
`Facebook/Instagram Ex. 1012
`
`014
`
`

`

`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 15 of 38 PageID# 15
`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 15 of 38 PagelD# 15
`
`CLAIM FOR RELIEF
`
`COUNT I
`
`(Facebook’s Infringement of the ’295 Patent)
`
`44.
`
`TLI incorporates by reference paragraphs 1 through 43 of the Complaint as if set
`
`forth here in full.
`
`Direct Infringement
`
`45.
`
`Facebook has been and is currently directly infringing one or more claims of the
`
`’295 Patent by making, using, offering to sell, and/or selling within the United States, and/or
`
`importing into the United States, without authority, the aforementioned platforms that upload and
`
`store digital images from mobile devices having telephones. For example, and without
`
`limitation, Facebook has directly infringed and continues to directly infringe the ’295 Patent in
`
`this judicial district and elsewhere in the United States. Facebook’s infringement includes,
`
`without limitation, (i) making and using the apparatus of claim 1 and claims dependent thereon,
`
`and (ii) practicing the method of claim 17 and claims dependent thereon.
`
`46.
`
`Specifically, Facebook’s direct infringement includes, without limitation (i) its
`
`uploading of digital images from mobile devices having telephones onto Facebook servers and/or
`
`lnstagram servers (or onto servers operated on or for Facebook’s behalf (“Facebook servers”)),
`
`(ii) its testing of its Facebook and lnstagram products by uploading images from mobile devices
`
`having telephones onto Facebook servers within the United States, and (iii) its maintaining
`
`Facebook servers that categorize and store images that were uploaded via mobile devices having
`
`telephones. Facebook also directs and/or controls its employees, executives, agents, customers
`
`and agents to use the aforementioned digital image uploading platforms to upload images from
`
`mobile devices having telephones onto Facebook servers within the United States.
`
`15
`
`015
`
`Facebook/lnstagram Ex. 1012
`
`Facebook/Instagram Ex. 1012
`
`015
`
`

`

`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 16 of 38 PageID# 16
`Case 1:14-cv-00142-TSE-JFA Document 1 Filed 02/10/14 Page 16 of 38 PagelD# 16
`
`47.
`
`To the extent that claim 1 of the ’295 Patent is construed to require a system with
`
`a claim element not practiced by Facebook, Facebook would also directly infringe claim 1 at
`
`least because it directs and/or controls the practicing of all claim elements or because it places
`
`the invention into service. For example, Facebook provides websites, platforms and pre-loaded
`
`software to mobile telephone users that provide and enable image uploading, thereby putting the
`
`invention into service.22 Moreover, Facebook directs and/or controls the practicing of all claim
`
`elements, as shown for example, by Facebook entering into contracts with its users, Facebook
`
`instructing its users how to upload digital images from mobile devices having telephones,
`
`Facebook automatically syncing digital images from mobile devices having telephones onto its
`
`servers, Facebook automatically uploading digital images from mobile devices having
`
`telephones onto its servers, Facebook automatically tagging digital images that it uploads onto its
`
`servers from mobile devices having telephones with characterization information of the users,
`
`and Facebook automatically archiving the digital images that it uploads onto its servers with
`
`characterization information of the users.
`
`48.
`
`To the extent that claim 17 of the ’295 Patent is construed to require a method
`
`with a step not practiced by Facebook, Facebook would also d