Case 209-cv-00345-MHS-CMC
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`Document 133 Filed 11/19/08
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`QUINSTREET INC
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`Plaintiff
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`PARALLEL NETWORKS LLC
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`C.A No 06-495-SLR
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`Defendant
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`JURY TRIAL DEMANDED
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`__________________________________________________
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`QU1NSTREET 1NC
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`Third-Party Plaintiff
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`MICROSOFT CORPORATION
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`Third-Party Defendant
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`THIRD-PARTY DEFENDANT MICROSOFT CORPORATIONS CLAIMS FOR
`DECLARATORY JUDGMENT AGAINST
`DEFENDANT PARALLEL NETWORKS LLC
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`Third-Party Defendant Microsoft Corporation Microsoft
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`brings its claims
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`against Defendant Parallel Networks LLC Parallel for
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`declaratory judgment of
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`patent invalidity and non-infringement
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`THE PARTIES
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`Microsoft is
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`corporation organized and existing under the laws of the State
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`of Washington
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`having its principal place of business located at One Microsoft Way
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`Redmond Washington 98052
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`Upon information and belief Parallel is
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`limited liability company
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`organized and existing under the laws of the State of Texas having its principal place of
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`00253792
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`Petitioner IBM – Ex. 1050, p. 1
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`Case 209-cv-00345-MHS-CMC
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`business at 1700 Pacific Avenue Suite 2320 Dallas Texas 75201 Upon information
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`and belief Parallel is the successor-in-interest
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`to epicRealm Licensing LLC
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`epicRealm
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`JURISDICTION AND VENUE
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`This is
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`complaint
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`for declaratory relief under the patent laws of the United
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`States This Court has subject matter jurisdiction over this action pursuant
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`to 28 U.S.C
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`1331 1338a2201aand2202
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`This Court has personal jurisdiction over Parallel because it already is
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`properly before this Court in this case and in Oracle Corp
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`Parallel Networks LLP
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`C.A No 06-414-SLR
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`Venue is proper in this judicial district pursuant to 28 U.S.C
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`139 1c
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`and 1400b
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`THE PARALLEL PATENTS
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`Parallel has claimed to be the owner of U.S Patent No 5894554 the 554
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`Patent and U.S Patent No 6415335 the 335 Patent D.I 130 Exhs
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`and
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`collectively the Parallel Patents
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`Upon information and belief Parallel has the right to enforce the Parallel
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`Patents against Microsoft
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`MICROSOFTS SHOWING OF SUBSTANTIAL CONTROVERSY
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`On April 15 2005 Parallel filed
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`complaint
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`in the United States District
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`Court for the Eastern District of Texas Marshall Division C.A No 205-150 accusing
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`00253792
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`Petitioner IBM – Ex. 1050, p. 2
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`Case 209-cv-00345-MHS-CMC
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`defendant Speedera Networks Inc of infringing one or more claims of the Parallel
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`Patents the Speedera Action That case was resolved through settlement
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`On May
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`2005 Parallel filed
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`complaint in the United States District
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`Court for the Eastern District of Texas Marshall Division C.A No 205-163 accusing
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`six
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`defendants of infringing one or more claims of the Parallel Patents the 163
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`Action On August
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`2005 Parallel filed
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`complaint in the United States District
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`Court for the Eastern District of Texas Marshall Division C.A No 205-356 accusing
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`six
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`other defendants including Herbalife International of America Inc Herbalife
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`of infringing one or more claims of the Parallel Patents the 356 Action On
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`November
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`2005 the Honorable
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`John Ward consolidated the 163 and 356 Actions
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`the Consolidated Actions which subsequently were reassigned to the Honorable
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`David
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`Folsom
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`10
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`In the Consolidated Actions Parallel has alleged
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`broad scope for the
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`Parallel Patents contending that they cover virtually all systems and methods wherein
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`dynamic web page requests are intercepted at web server or other HTTP-compliant
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`device and transferred to page server software capable of processing dynamic web
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`pages According to Parallel web servers caching servers and layer-7 switches are
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`types of HTTP-compliant devices Web requests are initially evaluated by the HTTP
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`compliant device The requests for dynamic content are transferred to the page servers
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`or application server servlet container or software etc such as Tomcat J-Boss and/or
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`Resin for processing According to Parallel any system and method incorporating these
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`or similar elements that also releases the HTTP-compliant device to concurrently process
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`other requests infringes the Parallel Patents
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`11 On or about January 25 2006 in
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`letter responding to counsel for Clark
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`Consulting Inc
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`defendant in the Consolidated Actions counsel for Parallel asserted
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`that Microsoft ITS could if used to generate webpages with dynamic content be
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`00253792
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`Petitioner IBM – Ex. 1050, p. 3
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`Case 209-cv-00345-MHS-CMC
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`configured in way that would infringe claims of the Parallel Patents the Microsoft ITS
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`Allegation
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`12
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`In February 2006 QuinStreet Inc California corporation QuinStreet
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`undertook the defense and indemnification of Herbalife
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`defendant
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`in the Consolidated
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`Actions
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`13 On August
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`2006 QuinStreet
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`filed the instant case against Parallel
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`seeking
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`declaration that none of QuinStreets hardware/software configurations for
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`dynamic web page generation infringes
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`valid and enforceable claim of the Parallel
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`Patents and that the Parallel Patents are invalid Delaware Action
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`14 Upon information and belief Parallel has sought discovery from Herbalife
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`and/or QuinStreet
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`regarding Microsoft ITS and QuinStreets configurations of Microsoft
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`IS
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`15 On or about October 15 2008 Microsoft was served with QuinStreets
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`third-party complaint against Microsoft
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`in the Delaware Action Upon information and
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`belief QuinStreet asserts that Parallel has consistently contended in the Texas lawsuit
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`that Microsoft ITS can be configured in ways that infringe the Parallel Patents Upon
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`information and belief Parallel has taken that same position in this case and has refused
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`to state that its counterclaim of infringement does not apply to the ITS platforms used by
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`QuinStreet
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`16
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`The Microsoft uS Allegation that Microsoft
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`ITS can be configured to
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`infringe Parallels seeking of Microsoft
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`ITS discovery in the Delaware Action Parallels
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`apparent
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`refusal
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`in the Delaware action to state that Microsoft ITS does not infringe and
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`the extent to which Parallel has already litigated the Parallel Patents have created under
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`all
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`the these circumstances
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`showing that there is
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`substantial controversy between
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`Microsoft and Parallel of sufficient
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`immediacy and reality to warrant
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`the issuance of
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`declaratory judgment
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`00253792
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`Petitioner IBM – Ex. 1050, p. 4
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`Case 209-cv-00345-MHS-CMC
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`Document 133 Filed 11/19/08
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`CLAIM
`Declaration of Noninfringement by Microsoft uS
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`17 Microsoft
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`incorporates by reference Paragraphs
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`through 16 above
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`18 By virtue of Parallels patent infringement allegations in the Speedera action
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`and the consolidated Actions the Microsoft uS Allegation Parallels seeking of
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`Microsoft ITS discovery in the Delaware Action and Parallels apparent refusal
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`in the
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`Delaware action to state that the Microsoft ITS does not infringe Parallel has placed
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`cloud over Microsoft ITS Accordingly an actual controversy exists between Microsoft
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`and Parallel as to whether Microsoft
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`ITS and/or one or more Microsoft customers infringe
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`the Parallel Patents
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`19 Microsoft ITS has not infringed and does not infringe literally or under the
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`doctrine of equivalents either directly indirectly or willfully any valid and enforceable
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`claim of the Parallel Patents
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`20
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`Pursuant to 28 U.S.C
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`2201 and 2202
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`judicial determination of the
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`respective rights of the parties with respect
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`to Microsoft ITSs noninfringement of the
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`Parallel Patents is necessary and appropriate under the circumstances
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`CLAIM
`Declaration of invalidity of the Parallel Patents
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`21 Microsoft incorporates by reference Paragraphs
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`through 20 above
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`22 By virtue of Parallels patent infringement allegations in the Speedera action
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`and the consolidated Actions the Microsoft ITS Allegation Parallels seeking of
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`Microsoft ITS discovery in the Delaware Action and Parallels apparent refusal
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`in the
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`Delaware action to state that Microsoft
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`ITS does not infringe Parallel has placed
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`cloud
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`00253792
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`Petitioner IBM – Ex. 1050, p. 5
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`Case 209-cv-00345-MHS-CMC
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`Document 133 Filed 11/19/08
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`over Microsoft uS Accordingly an actual controversy exists between Microsoft and
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`Parallel as to the validity of the Parallel Patents
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`23
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`Each claim of the Parallel Patents is invalid for failure to meet one or more
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`of the conditions of patentability specified in 35 U.S.C
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`101 102 103 and/or 112
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`24
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`Pursuant to 28 U.S.C
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`2201 and 2202 ajudicial determination of the
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`respective rights of the parties with respect to the validity of the Parallel Patents is
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`necessary and appropriate under the circumstances
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`REQUEST FOR RELIEF
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`WHEREFORE Microsoft respectfully requests entry ofjudgment
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`in its favor and
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`against Parallel as follows
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`Declaring that Microsoft ITS does not infringe literally or under the doctrine of
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`equivalents either directly indirectly or willfully any valid and enforceable claim of the
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`Parallel Patents
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`Declaring that the claims of the Parallel Patents are invalid
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`Decreeing this case an exceptional case within the meaning of 35 U.S.C
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`285 and awarding reasonable attorneys fees to Microsoft and
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`Awarding Microsoft
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`its costs and such further relief as the Court deems just
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`and proper
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`00253792
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`Petitioner IBM – Ex. 1050, p. 6
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`Case 209-cv-00345-MHS-CMC
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`Document 133 Filed 11/19/08
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`ASHBY
`
`GEDDES
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`/s/ Steven
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`Balick
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`Steven
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`Balick I.D 2114
`Day I.D 2403
`John
`Maguire I.D 426
`Lauren
`500 Delaware Avenue 8th Floor
`P.O Box 1150
`Wilmington DE 19899
`302-654-1888
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`sbalick@ashby-geddes.com
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`jdayashby-geddes.com
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`lmaguire@ashby-geddes.com
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`Attorneys for Microsoft Corporation
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`Of Counsel
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`Kevin
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`Kudlac
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`Cabrach
`Connor
`WElL GOTSHAL MANGES LLP
`8911 Capital of Texas Highway
`Building One Suite 1350
`Austin Texas 78759
`512-349-1700
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`kevin.kudlac@weil.com
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`cabrach.connor@weil.com
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`Dated November 19 2008
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`00253792
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`Petitioner IBM – Ex. 1050, p. 7