`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`
`
`Civil Action No. 1:12-cv-10576-DJC
`
`JURY TRIAL DEMANDED
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`
`WORLDS, INC.,
` Plaintiff,
`
`v.
`ACTIVISION BLIZZARD, INC., BLIZZARD
`ENTERTAINMENT, INC., and ACTIVISION
`PUBLISHING, INC.,
`
`
`Defendants.
`
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff, Worlds, Inc. (“Worlds”), alleges the following:
`
`1.
`
`This is an action for patent infringement arising under the patent laws of the
`
`United States, Title 35 of the United States Code.
`
`2.
`
`Plaintiff, Worlds, Inc., is a corporation organized and existing under the laws of
`
`the State of Delaware, having a principal place of business at 11 Royal Road, Brookline,
`
`Massachusetts.
`
`3.
`
`Defendant Activision Blizzard, Inc. is a corporation organized and existing under
`
`the laws of Delaware with its principal place of business at 3100 Ocean Park Boulevard, Santa
`
`Monica, CA.
`
`4.
`
`Defendant Blizzard Entertainment, Inc. is a corporation organized and existing
`
`under the laws of Delaware with its principal place of business at 3100 Ocean Park Boulevard,
`
`Santa Monica, CA.
`
`5.
`
`Defendant Activision Publishing, Inc. is a corporation organized and existing
`
`under the laws of Delaware with its principal place of business at 3100 Ocean Park Boulevard,
`
`
`
`BUNGIE - EXHIBIT 1031
`
`
`
`Case 1:12-cv-10576-DJC Document 32 Filed 09/21/12 Page 2 of 13
`
`
`
`Santa Monica, CA.
`
`6.
`
`On information and belief, Blizzard Entertainment is a wholly owned subsidiary
`
`of Activision Blizzard and transacts substantial business, either directly or through their agents,
`
`on an ongoing basis in this judicial district and elsewhere in the United States.
`
`7.
`
`On information and belief, Blizzard Entertainment has offered and sold, and
`
`continues to offer and sell, in this judicial district and elsewhere in the United States, its World of
`
`Warcraft massively multiplayer online role playing game (MMORPG).
`
`8.
`
`On information and belief, Activision Blizzard is actively involved in the
`
`management and control of Blizzard Entertainment with regard to the latter’s offer for sale and
`
`sale of the World of Warcraft MMORPG.
`
`9.
`
`On information and belief, Activision Blizzard holds itself out as being, through
`
`Blizzard Entertainment, the leading publisher of MMORPGs that compete in the subscription-
`
`based MMORPG space.
`
`10.
`
`On information and belief, Activision Blizzard represents Blizzard Entertainment
`
`to be one of its operating segments, derives a substantial portion of its revenues from World of
`
`Warcraft subscriptions, owns World of Warcraft, and owns or controls data servers that host the
`
`World of Warcraft MMORPG.
`
`11.
`
`On information and belief, Activision Publishing, Inc. is a wholly owned
`
`subsidiary of Activision Blizzard and transacts substantial business, either directly or through
`
`their agents, on an ongoing basis in this judicial district and elsewhere in the United States.
`
`12.
`
`On information and belief, Activision Publishing has offered and sold, and
`
`continues to offer and sell, in this judicial district and elsewhere in the United States, its Call of
`
`Duty video game (with multiplayer mode).
`
`13.
`
`On information and belief, Activision Blizzard is actively involved in the
`
`
`
`-2-
`
`
`
`Case 1:12-cv-10576-DJC Document 32 Filed 09/21/12 Page 3 of 13
`
`
`
`management and control of Activision Publishing with regard to the latter’s offer for sale and
`
`sale of the Call of Duty video game.
`
`14.
`
`On information and belief, Activision Blizzard holds itself out as the owner of
`
`Call of Duty video game franchise and its intellectual property.
`
`15.
`
`On information and belief, Activision Blizzard represents Activision Publishing to
`
`be one of its operating segments and that the Call of Duty franchise has generated $4.2 billion in
`
`revenues to date.
`
`16.
`
`Activision Blizzard, Blizzard Entertainment and Activision Publishing are
`
`collectively referred to herein as “Activision.” Unless specifically stated otherwise, the acts
`
`complained of herein were committed by, on behalf of, and/or for the benefit of Activision.
`
`
`
`JURISDICTION AND VENUE
`
`17.
`
`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
`
`1338(a).
`
`18.
`
`This Court has personal jurisdiction over Activision because Activision has
`
`committed acts of infringement in violation of 35 U.S.C. § 271 and has offered and provided to
`
`customers in Massachusetts subscription to and use of Activision’s World of Warcraft and Call
`
`of Duty video games. Additionally, Activision regularly does business or solicits business,
`
`engages in other persistent courses of conduct, and/or derives substantial revenue from products
`
`and/or services provided to individuals in this district and has purposefully established
`
`substantial, systematic, and continuous contacts with this district and expects, or should
`
`reasonably expect, to be haled into court here. Moreover, Activision Blizzard exercises
`
`sufficient control over Blizzard Entertainment and Activision Publishing as to render the latter
`
`two instrumentalities of the former. Thus, this Court’s exercise of jurisdiction over Activision
`
`
`
`-3-
`
`
`
`Case 1:12-cv-10576-DJC Document 32 Filed 09/21/12 Page 4 of 13
`
`
`
`will not offend traditional notions of fair play and substantial justice.
`
`19.
`
`These acts cause injury to Worlds within the district. On information and belief,
`
`Activision’s products continue to be offered in channels of commerce with the intent that
`
`customers located in this district make use of Activision’s World of Warcraft and Call of Duty
`
`Video games within this district.
`
`20.
`
`On information and belief, Activision will derive substantial revenue from the use
`
`of Activision’s World of Warcraft and Call of Duty video games within this district, and/or
`
`expects or should reasonably expect its actions to have consequences within the district, and
`
`derives substantial revenue from interstate and international commerce.
`
`21.
`
`Activision has knowingly induced, and continues to knowingly induce,
`
`infringement within this district by offering to employ Activision’s World of Warcraft and Call
`
`of Duty video games with the knowledge and intent of facilitating infringing transactions within
`
`this district and by creating and/or disseminating user guides and other instructional and
`
`promotional materials for Activision’s World of Warcraft and Call of Duty video games with like
`
`mind and intent.
`
`22.
`
`Venue is proper in this district pursuant to 28 U.S.C. §§ 1391 and 1400(b).
`
`COUNT 1 - INFRINGEMENT OF U.S. PATENT NO. 8,082,501
`
`23.
`
`On December 20, 2011 United States Patent No. 8,082,501 (“the ‘501 patent”)
`
`was duly and legally issued for an invention entitled “System and Method for Enabling Users to
`
`Interact in a Virtual Space.” The ‘501 patent has been assigned by the inventors to Worlds, and
`
`Worlds is the sole and exclusive owner of the ‘501 patent and holds all rights and interests in the
`
`‘501 patent. Among other things, Worlds holds the sole and exclusive rights to manufacture,
`
`use, sell, import and offer to sell under the ‘501 patent and the right to enforce the ‘501 patent
`
`against alleged infringers.
`
`
`
`-4-
`
`
`
`Case 1:12-cv-10576-DJC Document 32 Filed 09/21/12 Page 5 of 13
`
`
`
`24. Worlds has complied with any applicable statutory notice requirements by posting
`
`notice of the ‘501 patent on its website and downloadable software.
`
`25.
`
`Activision has infringed and continues to infringe one or more claims of the ‘501
`
`patent by its manufacture, use, sale, importation, licensing and/or offer for sale of its Worlds of
`
`Warcraft MMORPG, which embodies one or more claims of the ‘501 patent. Activision also has
`
`infringed and continues to infringe one or more claims of the ‘501 patent by contributing to and
`
`actively inducing others to use, sell, import, and/or offer for sale its Worlds of Warcraft
`
`MMORPG. Activision is liable for its infringement of the ‘501 patent pursuant to 35 U.S.C. §
`
`271.
`
`26.
`
`Activision’s acts of infringement have caused damage to Worlds, and Worlds is
`
`entitled to recover from Activision the damages it has sustained as a result of Activision’s
`
`wrongful acts in an amount subject to proof at trial. Worlds has owned the ‘501 patent
`
`throughout the period of Activision’s infringing acts. Activision’s infringement of Worlds’
`
`exclusive rights under the ‘501 patent will continue to damage Worlds, causing irreparable harm
`
`for which there is no adequate remedy at law, unless enjoined by this Court.
`
`27.
`
`Upon information and belief, Activision’s infringement of the ‘501 patent is
`
`willful and deliberate, entitling Worlds to increased damages under 35 U.S.C. § 284 and to
`
`attorneys’ fees and costs incurred in prosecuting this action under 35 U.S.C. § 285.
`
`28.
`
`Activision has been on constructive notice of the ‘501 patent since at least as early
`
`as December 20, 2011 when the ‘501 patent was issued. Moreover, upon information and belief,
`
`Activision has been aware of Worlds’ patent portfolio through its knowledge of Worlds’
`
`infringement litigation against NCSoft Corporation, Civil Action No. 6:08-cv-508 in the Eastern
`
`District of Texas. Nevertheless, Activision has infringed and continues to infringe the ‘501
`
`patent.
`
`
`
`-5-
`
`
`
`Case 1:12-cv-10576-DJC Document 32 Filed 09/21/12 Page 6 of 13
`
`
`
`COUNT 2 - INFRINGEMENT OF U.S. PATENT NO. 7,945,856
`
`29.
`
`On May 17, 2011 United States Patent No. 7,945,856 (“the ‘856 patent”) was
`
`duly and legally issued for an invention entitled “System and Method for Enabling Users to
`
`Interact in a Virtual Space.” The ‘856 patent has been assigned by the inventors to Worlds, and
`
`Worlds is the sole and exclusive owner of the ‘856 patent and holds all rights and interests in the
`
`‘856 patent. Among other things, Worlds holds the sole and exclusive rights to manufacture,
`
`use, sell, import and offer to sell under the ‘856 patent and the right to enforce the ‘856 patent
`
`against alleged infringers.
`
`30. Worlds has complied with any applicable statutory notice requirement by posting
`
`notice of the ‘856 patent on its website and downloadable software.
`
`31.
`
`Activision has infringed and continues to infringe one or more claims of the ‘856
`
`patent by its manufacture, use, sale, importation, licensing and/or offer for sale of its Worlds of
`
`Warcraft and Call of Duty video games, which each embody one or more claims of the ‘856
`
`patent. Activision also has infringed and continues to infringe one or more claims of the ‘856
`
`patent by contributing to and actively inducing others to use, sell, import, and/or offer for sale its
`
`Worlds of Warcraft and Call of Duty video games. Activision is liable for its infringement of the
`
`‘856 patent pursuant to 35 U.S.C. § 271.
`
`32.
`
`Activision’s acts of infringement have caused damage to Worlds, and Worlds is
`
`entitled to recover from Activision the damages it has sustained as a result of Activision’s
`
`wrongful acts in an amount subject to proof at trial. Worlds has owned the ‘856 patent
`
`throughout the period of Activision’s infringing acts. Activision’s infringement of Worlds’
`
`exclusive rights under the ‘856 patent will continue to damage Worlds, causing irreparable harm
`
`for which there is no adequate remedy at law, unless enjoined by this Court.
`
`33.
`
`Upon information and belief, Activision’s infringement of the ‘856 patent is
`
`
`
`-6-
`
`
`
`Case 1:12-cv-10576-DJC Document 32 Filed 09/21/12 Page 7 of 13
`
`
`
`willful and deliberate, entitling Worlds to increased damages under 35 U.S.C. § 284 and to
`
`attorneys’ fees and costs incurred in prosecuting this action under 35 U.S.C. § 285.
`
`34.
`
`Activision has been on constructive notice of the ‘856 patent by at least as early
`
`as May 17, 2011 when the ‘856 patent was issued. Moreover, upon information and belief,
`
`Activision has been aware of Worlds’ patent portfolio through its knowledge of Worlds’
`
`infringement litigation against NCSoft Corporation, Civil Action No. 6:08-cv-508 in the Eastern
`
`District of Texas. Nevertheless, Activision has infringed and continues to infringe the ‘856
`
`patent.
`
`COUNT 3 - INFRINGEMENT OF U.S. PATENT NO. 7,493,558
`
`35.
`
`On February 17, 2009, United States Patent No. 7,493,558 (“the ‘558 patent”)
`
`was duly and legally issued for an invention entitled “System and Method for Enabling Users to
`
`Interact in a Virtual Space.” The ‘558 patent has been assigned by the inventors to Worlds, and
`
`Worlds is the sole and exclusive owner of the ‘558 patent and holds all rights and interests in the
`
`‘558 patent. Among other things, Worlds holds the sole and exclusive rights to manufacture,
`
`use, sell, import and offer to sell under the ‘558 patent and the right to enforce the ‘558 patent
`
`against alleged infringers.
`
`36. Worlds has complied with any applicable statutory notice requirements by posting
`
`notice of the ‘558 patent on its website and downloadable software.
`
`37.
`
`Activision has infringed and will continue to infringe one or more claims of the
`
`‘558 patent by its manufacture, use, sale, importation, licensing and/or offer for sale of its
`
`Worlds of Warcraft and Call of Duty video games, which each embody one or more claims of the
`
`‘558 patent. Activision also has infringed and continues to infringe one or more claims of the
`
`‘558 patent by contributing to and actively inducing others to use, sell, import, and/or offer for
`
`sale its Worlds of Warcraft
`
` and Call of Duty video games. Activision is liable for its
`
`
`
`-7-
`
`
`
`Case 1:12-cv-10576-DJC Document 32 Filed 09/21/12 Page 8 of 13
`
`
`
`infringement of the ‘558 patent pursuant to 35 U.S.C. § 271.
`
`38.
`
`Activision’s acts of infringement have caused damage to Worlds, and Worlds is
`
`entitled to recover from Activision the damages it has sustained as a result of Activision’s
`
`wrongful acts in an amount subject to proof at trial. Worlds has owned the ‘558 patent
`
`throughout the period of the Activision’s infringing acts. Activision’s infringement of Worlds’
`
`exclusive rights under the ‘558 patent will continue to damage Worlds, causing irreparable harm
`
`for which there is no adequate remedy at law, unless enjoined by this Court.
`
`39.
`
`Upon information and belief, Activision’s infringement of the ‘558 patent is
`
`willful and deliberate, entitling Worlds to increased damages under 35 U.S.C. § 284 and to
`
`attorneys’ fees and costs incurred in prosecuting this action under 35 U.S.C. § 285.
`
`40.
`
`Activision has been on constructive notice of the ‘558 patent by at least as early
`
`as February 17, 2009, when the ‘558 patent was issued. Moreover, upon information and belief,
`
`Activision has been aware of Worlds’ patent portfolio through its knowledge of Worlds’
`
`infringement litigation against NCSoft Corporation, Civil Action No. 6:08-cv-508 in the Eastern
`
`District of Texas. Nevertheless, Activision has infringed and continues to infringe the ‘558
`
`patent.
`
`COUNT 4 - INFRINGEMENT OF U.S. PATENT NO. 7,181,690
`
`41.
`
`On February 20, 2007, United States Patent No. 7,181,690 (“the ‘690 patent”)
`
`was duly and legally issued for an invention entitled “System and Method for Enabling Users to
`
`Interact in a Virtual Space.” The ‘690 patent has been assigned by the inventors to Worlds, and
`
`Worlds is the sole and exclusive owner of the ‘690 patent and holds all rights and interests in the
`
`‘690 patent. Among other things, Worlds holds the sole and exclusive rights to manufacture,
`
`use, sell, import and offer to sell under the ‘690 patent and the right to enforce the ‘690 patent
`
`against alleged infringers.
`
`
`
`-8-
`
`
`
`Case 1:12-cv-10576-DJC Document 32 Filed 09/21/12 Page 9 of 13
`
`
`
`42. Worlds has complied with any applicable statutory notice requirements by posting
`
`notice of the ‘690 patent on its website and downloadable software.
`
`43.
`
`Activision has infringed and will continue to infringe one or more claims of the
`
`‘690 patent by its manufacture, use, sale, importation, licensing and/or offer for sale of its
`
`Worlds of Warcraft and Call of Duty video games, which each embody one or more claims of the
`
`‘690 patent. Activision also has infringed and continues to infringe one or more claims of the
`
`‘690 patent by contributing to and actively inducing others to use, sell, import, and/or offer for
`
`sale its Worlds of Warcraft and Call of Duty video games. Activision is liable for its
`
`infringement of the ‘690 patent pursuant to 35 U.S.C. § 271.
`
`44.
`
`Activision’s acts of infringement have caused damage to Worlds, and Worlds is
`
`entitled to recover from Activision the damages it has sustained as a result of Activision’s
`
`wrongful acts in an amount subject to proof at trial. Worlds has owned the ‘690 patent
`
`throughout the period of the Activision’s infringing acts. Activision’s infringement of Worlds’
`
`exclusive rights under the ‘690 patent will continue to damage Worlds, causing irreparable harm
`
`for which there is no adequate remedy at law, unless enjoined by this Court.
`
`45.
`
`Upon information and belief, Activision’s infringement of the ‘690 patent is
`
`willful and deliberate, entitling Worlds to increased damages under 35 U.S.C. §284 and to
`
`attorneys’ fees and costs incurred in prosecuting this action under 35 U.S.C. § 285.
`
`46.
`
`Activision has been on constructive notice of the ‘690 patent by at least as early
`
`as February 20, 2007, when the ‘690 patent was issued. Moreover, upon information and belief,
`
`Activision has been aware of Worlds’ patent portfolio through its knowledge of Worlds’
`
`infringement litigation against NCSoft Corporation, Civil Action No. 6:08-cv-508 in the Eastern
`
`District of Texas. Nevertheless, Activision has infringed and continues to infringe the ‘690
`
`patent.
`
`
`
`-9-
`
`
`
`Case 1:12-cv-10576-DJC Document 32 Filed 09/21/12 Page 10 of 13
`
`
`
`COUNT 5 - INFRINGEMENT OF U.S. PATENT NO. 8,145,998
`
`47.
`
`On March 27, 2012, United States Patent No. 8,145,998 (“the ‘998 patent”) was
`
`duly and legally issued for an invention entitled “System and Method for Enabling Users to
`
`Interact in a Virtual Space.” The ‘998 patent has been assigned by the inventors to Worlds, and
`
`Worlds is the sole and exclusive owner of the ‘998 patent and holds all rights and interests in the
`
`‘998 patent. Among other things, Worlds holds the sole and exclusive rights to manufacture,
`
`use, sell, import and offer to sell under the ‘998 patent and the right to enforce the ‘998 patent
`
`against alleged infringers.
`
`48. Worlds has complied with any applicable statutory notice requirements by posting
`
`notice of the ‘998 patent on its website and downloadable software.
`
`49.
`
`Activision has infringed and will continue to infringe one or more claims of the
`
`‘998 patent by its manufacture, use, sale, importation, licensing and/or offer for sale of its
`
`Worlds of Warcraft and Call of Duty video games, which each embody one or more claims of the
`
`‘998 patent. Activision also has infringed and continues to infringe one or more claims of the
`
`‘998 patent by contributing to and actively inducing others to use, sell, import, and/or offer for
`
`sale its Worlds of Warcraft
`
` and Call of Duty video games. Activision is liable for its
`
`infringement of the ‘998 patent pursuant to 35 U.S.C. § 271.
`
`50.
`
`Activision’s acts of infringement have caused damage to Worlds, and Worlds is
`
`entitled to recover from Activision the damages it has sustained as a result of Activision’s
`
`wrongful acts in an amount subject to proof at trial. Worlds has owned the ‘998 patent
`
`throughout the period of the Activision’s infringing acts. Activision’s infringement of Worlds’
`
`exclusive rights under the ‘998 patent will continue to damage Worlds, causing irreparable harm
`
`for which there is no adequate remedy at law, unless enjoined by this Court.
`
`51.
`
`Upon information and belief, Activision’s infringement of the ‘998 patent is
`
`
`
`-10-
`
`
`
`Case 1:12-cv-10576-DJC Document 32 Filed 09/21/12 Page 11 of 13
`
`
`
`willful and deliberate, entitling Worlds to increased damages under 35 U.S.C. §284 and to
`
`attorneys’ fees and costs incurred in prosecuting this action under 35 U.S.C. § 285.
`
`52.
`
`Activision has been on constructive notice of the ‘998 patent by at least as early
`
`as March 27, 2012, when the ‘998 patent was issued. Moreover, upon information and belief,
`
`Activision has been aware of Worlds’ patent portfolio through its knowledge of Worlds’
`
`infringement litigation against NCSoft Corporation, Civil Action No. 6:08-cv-508 in the Eastern
`
`District of Texas. Nevertheless, Activision has infringed and continues to infringe the ‘998
`
`patent.
`
`PRAYER FOR RELIEF
`
`
`WHEREFORE, Worlds requests entry of judgment in its favor and against the Activision
`
`defendants as follows:
`
`a.
`
`Declaring that the Activision defendants have infringed U.S. Patent Nos. 8,082,501;
`
`7,945,856; 7,493,558; 7,181,690; and 8,145,998.
`
`b.
`
`Awarding the damages arising out of the Activision defendants’ infringement of U.S.
`
`Patent Nos. 8,082,501; 7,945,856; 7,493,558; 7,181,690; and 8,145,998, including
`
`enhanced damages pursuant to 35 U.S.C. § 284, to Worlds, together with
`
`prejudgment and post-judgment interest, in an amount according to proof;
`
`c.
`
`Permanently enjoining the Activision defendants and their respective officers, agents,
`
`employees, and those acting in privity with them, from further infringement,
`
`including contributory infringement and/or inducing infringement, of U.S. Patent
`
`Nos. 8,082,501; 7,945,856; 7,493,558; 7,181,690; and 8,145,998;
`
`d.
`
`Awarding attorney’s fees pursuant to 35 U.S.C. § 285 or as otherwise permitted by
`
`law; and
`
`
`
`-11-
`
`
`
`Case 1:12-cv-10576-DJC Document 32 Filed 09/21/12 Page 12 of 13
`
`e.
`
`Awarding such other costs and further relief as the Court may deem just and proper.
`
`JURY DEMAND
`
`Worlds requests a trial by jury.
`
`
`
`
`
`Dated: September 21, 2012
`
`
`
` Respectfully submitted,
`
`
`WORLDS, INC.,
`
`By its attorneys,
`
` /s/ Joel R. Leeman
`Joel R. Leeman, BBO # 292070
`Jack C. Schecter, BBO # 652349
`SUNSTEIN KANN MURPHY
` & TIMBERS LLP
`125 Summer Street
`Boston, MA 02110-1618
`Tel: 617-443-9292
`jleeman@sunsteinlaw.com
`jschecter@sunsteinlaw.com
`
`
`Pro hac vice
`
`Max L. Tribble
`Brian D. Melton
`Joseph S. Grinstein
`Sandeep Seth
`Ryan Caughey
`SUSMAN GODFREY L.L.P.
`1000 Louisiana, Suite 5100
`Houston, TX 77002-5096
`(713) 651-9366
`mtribble@susmangodfrey.com
`bmelton@susmangodfrey.com
`jgrinstein@susmangodfrey.com
`sseth@susmangodfrey.com
`rcaughey@susmangodfrey.com
`
`
`
`-12-
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case 1:12-cv-10576-DJC Document 32 Filed 09/21/12 Page 13 of 13
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I certify that a true copy of the above document was filed through the Court’s ECF
`system on the above date and will be sent electronically to the registered participants as
`identified on the Notice of Electronic Filing.
`
`
`/s/Joel R. Leeman
`Joel R. Leeman
`
`
`
`
`
`
`
`
`
`
`
`-13-