ADDUCI, MASTRIANI & SCHAUMBERG, L.L.P.
`
`ATTORNEYS AT LAW
`
`1200 SEVENTEENTH STREET, N.W
`WASHINGTON, D.C. 20036
`Telephone: (202) 467-6300
`Facsimile: (202) 4662006
`e-mail: [lastname]@adduci.com
`www.adduci.com
`
`June 6,2006
`
`OF COUNSEL
`
`ROBERT A. WESTERLUND
`DAVID G. POSZ
`JAMES E. BARLOW'
`GREGORY C. ANTHES
`JOHN C. STEINBERGER
`
`AFFILIATE
`
`AM&S TRADE SERVICES, LLC
`CARLOS MOORE, PRESIDENT
`
`V. JAMES ADDUCI I1
`LOUIS S. MASTRlANI
`TOM M. SCHAUMBERG
`BARBARA A. MURPHY
`HARVEY B. FOX
`WILL E. LEONARD
`JAMES TAYLOR, JR.
`MAUREEN F. BROWNE
`MICHAEL G. McMANUS
`RODNEY R. SWEETLAND, 111
`MICHAEL L. DOANE
`WILLIAM C. SJOBERG
`PAUL G. HEGLAND
`DAVID F. NICKEL
`SARAH E. HAMBLIN'
`MARK R. LEVENTHAL
`S. ALEX LASHER
`TALI LEAH ALBAN'
`*ADMlTED TO A BAR OTHER THAN D C
`
`VIA HAND DELIVERY
`
`Marilyn R. Abbott, Secretary
`U.S. International Trade Commission
`500 E Street, S.W., Room 112A
`Washington, D.C. 20436
`
`Re: Certain Portable Digital Media Players and
`Components Thereof Inv. No. 337-TA-
`
`Dear Secretary Abbott:
`
`Enclosed for filing on behalf of Complainant Apple Computer, Inc. ("Apple1' or
`"Complainant") are the following documents in support of Apple's request that the Commission
`commence an investigation pursuant to Section 337 of the Tariff Act of 1930, as amended. A
`request for confidential treatment of Confidential Exhibit 27 is included with this filing.
`
`Accordingly, Complainant submits the following documents for filing:
`
`1.
`
`An original and twelve (12) copies of the Amended Complaint1 and
`original and six (6) copies of the accompanying exhibits 25-28 and 30-32,
`with the Confidential Exhibits segregated from the other material
`submitted (original and one (1) copy unbound, without tabs).
`(Rules
`201.6(c), 210.4(f)(3)(i), and 210.8(a));
`
`The Amended Complaint is unverified but Apple anticipates filing a verification on or before
`June 8,2006.
`
`1
`
`

`

`Marilyn R. Abbott, Secretary
`June 6,2006
`Page 2
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`7.
`
`8.
`
`Two (2) additional copies of both the Amended Complaint and
`accompanying non-confidential exhibits for service upon each proposed
`respondent. (Rules 210.4(f)(3)(i), 210.8(a), and 210.1 l(a));
`
`Two (2) additional copies of the Confidential Exhibit for service upon
`respondents' counsel after appropriate notices of appearance and
`subscriptions to the protective order have been filed;
`
`An uncertified copy of United States Patent No. 6,282,646 ("the '646
`patent"), with legible copies of the patent included in the original and all
`copies of the Complaint as Exhibit 25. A certified copy of the '646 patent
`has been requested and will be forthcoming;
`
`An uncertified copy of the assignments for the '646 patent is enclosed as
`Exhibit 26. A certified copy of Exhibit 26 has been requested and will be
`forthcoming;
`
`One (1) additional copy of the Amended Complaint and the accompanying
`non-confidential exhibits for service upon the Embassy of Singapore in
`Washington, D.C. (19 C.F.R. $0 210.8(a) and 210.1l(a)(l));
`
`Pursuant to 19 C.F.R. $ 210.12(c), an uncertified copy of the '646 patent
`prosecution history is provided in Appendix G. A certified copy of the
`'646 prosecution history has been requested and will be forthcoming. One
`unstapled copy of the prosecution history is provided for scanning
`purposes. The two additional required copies of the '646 patent
`prosecution history are provided on CD-Rom. The cited references to the
`'646 patent is provided in Appendix H. The three additional required
`copies of the technical references are provided on CD-Rom.
`
`A listing of the licensees of the '646 patent may be found in Confidential
`Exhibit 27. Copies of the standard license agreement were provided with
`the June 1, 2006 filing, pursuant to 19 C.F.R. $ 210.12(c), as Confidential
`Exhibit 8.
`
`9.
`
`Physical Exhibit 2, provided herewith, is a sample of the accused product.
`
`Request for Confidential Treatment
`In accordance with Commission Rules 201.6(b) and 210.5(d), 19 C.F.R. $5 201.6 and
`2 10.5, Complainants request confidential treatment for the business information contained in
`Confidential Exhibits 27. A nonconfidential version of Exhibit 27 is provided with the original
`
`2
`
`

`

`Marilyn R. Abbott, Secretary
`June 6,2006
`Page 3
`
`and six sets of exhibits for the Commission, the two sets of exhibits for the respondents and the
`one sets of exhibits for the embassy.
`
`The information for which confidential treatment is sought is proprietary information not
`otherwise publicly available. Specifically, Exhibit 27 contains proprietary information in the
`declarations of investigators used to collect information to support the Complaint and the
`Appendices contain proprietary licensing information.
`
`The information described above qualifies as confidential business information pursuant
`to Rule 201.6(a) because:
`
`a.
`
`b.
`
`c.
`
`it is not available to the public;
`
`unauthorized disclosure of such information could cause substantial harm
`to Complainants' competitive position and;
`
`the disclosure of which could impair the Commission's ability to obtain
`information necessary to perform its statutory function.
`
`Please do not hesitate to contact this office if y
`
`V JA: sj f
`Enclosures
`AP700106-2.doc
`
`/
`
`3
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`In the Matter of
`
`CERTAIN PORTABLE DIGITAL MEDIA
`PLAYERS AND COMPONENTS
`THEREOF
`
`Investigation No. 337-TA--
`
`FIRST AMENDED COMPLAINT OF APPLE COMPUTER, INC. UNDER
`SECTION 337 OF THE TARIFF ACT OF 1930, AS AMENDED
`
`COMPLAINANT
`
`Apple Computer, Inc.
`1 Infinite Loop
`Cupertino, CA 95014
`Telephone: (408) 996- 10 10
`
`PROPOSED RESPONDENTS
`
`Creative Technology Ltd.
`3 1 International Business Park
`Singapore 60992 1
`Telephone: 65-6895-4000
`Facsimile: 65-6895-4999
`
`Creative Labs, Inc.
`190 1 McCarthy Boulevard
`Milpitas, California 95035
`Telephone: (408) 428-6600
`Facsimile: (408) 428-66 1 1
`
`COUNSEL FOR COMPLAINANT
`
`V. James Adduci I1
`ADDUCI, MASTRIANI &
`SCHAUMBERG, L.L.P.
`1200 Seventeenth Street, N.W., 5* Floor
`Washington, DC 20036
`Telephone: (202) 467-6300
`Facsimile: (202) 466-2006
`
`Gregory S. Arovas
`KIRKLAND & ELLIS LLP
`153 East 53rd Street
`New York, New York 10022
`Telephone: (212) 446-4800
`Facsimile: (212) 446-4900
`
`Robert G. Krupka
`Marc H. Cohen
`KIRKLAND & ELLIS LLP
`777 South Figueroa Street
`Los Angeles, California 900 17
`Telephone: (21 3) 680-8400
`Facsimile: (213) 680-8500
`
`James B. Coughlan
`KIRKLAND & ELLIS LLP
`200 East Randolph Drive
`Chicago, Illinois 60601
`Telephone: (312) 861-2000
`Facsimile: (312) 861-2200
`
`4
`
`

`

`TABLE OF CONTENTS
`INTRODUCTION ..............................................................................................................
`I .
`I1 . COMPLAINANT ...............................................................................................................
`I11 . THE PROPOSED RESPONDENTS ................................................................................
`IV . THE TECHNOLOGY AND PRODUCTS AT ISSUE ...................................................
`V . THE PATENTS IN SUIT AND NON-TECHNICAL DESCRIPTIONS OF
`THE INVENTIONS ...........................................................................................................
`Overview and Ownership ofthe Asserted Patents ...................................................
`A .
`B .
`Non-Technical Description of the ‘230 Patent ........................................................
`C .
`Non-Technical Description of the ‘293 Patent ........................................................
`Non-Technical Description of the ‘434 Patent ........................................................
`D .
`E .
`Non-Technical Description of the ‘646 Patent ........................................................
`F .
`Foreign Counterparts ...............................................................................................
`Licenses ....................................................................................................................
`G .
`VI . UNLAWFUL AND UNFAIR ACTS OF RESPONDENT-PATENT
`INFRINGEMENT ..............................................................................................................
`Direct Infringement ..................................................................................................
`A .
`B .
`Contributory Infringement .......................................................................................
`Inducement of Infringement ..................................................................................
`C .
`VI1 . SPECIFIC INSTANCES OF UNFAIR IMPORTATION AND SALE ......................
`VI11 . HARMONIZED TARIFF SCHEDULE ITEM NUMBERS ........................................
`IX . RELATED LITIGATION ...............................................................................................
`THE DOMESTIC INDUSTRY ......................................................................................
`X .
`A . United States Investments In The Domestic Industry ............................................
`B .
`Apple’s Practice of the Asserted Patents ...............................................................
`XI . RELIEF REQUESTED ...................................................................................................
`
`1
`
`2
`
`3
`
`4
`
`4
`4
`5
`6
`6
`7
`8
`8
`
`8
`9
`9
`10
`
`11
`
`11
`
`12
`
`13
`13
`14
`
`16
`
`..
`
`11
`
`5
`
`

`

`SUPPORTING MATERIALS
`
`EXHIBITS
`
`Exhibit
`
`Description
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`7.
`
`8.
`
`9.
`
`10.
`
`11.
`
`12.
`
`13.
`
`14.
`
`15.
`
`16.
`
`17.
`
`18.
`
`19.
`
`Certified Copy of U.S. Patent No. 7,046,230
`
`Certified Copy of U.S. Patent No. 5,341,293
`
`Certified Copy of U.S. Patent No. 5,898,434
`
`Certified Copy of Assignments for U.S. Patent No. 7,046,230
`
`Certified Copy of Assignments for U.S. Patent No. 5,34 1,293
`
`Certified Copy of Assignment for U.S. Patent No. 5,898,434
`
`List of licensees of each asserted patent (CONFIDENTIAL)
`
`Three copies of each license agreement arising out of each of the asserted patents
`(CONFIDENTIAL)
`
`Chart comparing an exemplary claim of the ‘230 patent to the Zen Vision:M
`device, a representative infringing product
`
`Chart comparing an exemplary claim of the ‘293 patent to the Zen Vision:M
`device, a representative infringing product
`
`Chart comparing an exemplary claim of the ‘434 patent to the Zen Vision:M
`device, a representative infringing product
`
`Photos of Creative’s Zen Vision:M device
`
`Photos of Zen Vision:M device packaging showing country of origin
`
`Receipts showing purchase of Zen Vision:M device
`
`Confidential Declaration (CONFIDENTIAL)
`
`Chart comparing an exemplary claim of the ‘230 patent to Apple’s iPod digital
`media device
`
`Chart comparing an exemplary claim of the ‘293 patent to Apple’s iPhoto product
`
`Chart comparing an exemplary claim of the ‘434 patent to Apple’s iPhoto product
`
`Photos of Apple’s iPod portable digital media player
`
`...
`111
`
`6
`
`

`

`20.
`
`21.
`
`22.
`
`23.
`
`24.
`
`25.
`
`26.
`
`27.
`
`28.
`
`29.
`
`30.
`
`31.
`
`Creative Zen Vision:M User’s Guide
`
`Apple iPod Features Guide
`
`Apple iPod nano Features Guide
`
`Apple Computer, Inc. Form 10-K for fiscal year ended September 24,2005
`(selected pages)
`
`List of each foreign patent, each foreign patent application (not already issued as a
`patent), and each foreign patent application that has been denied, corresponding to
`the ‘230, ‘293, or ‘434 patent
`
`Certified Copy of U.S. Patent No. 6,282,646
`
`Certified Copy of Assignments for U.S. Patent No. 6,282,646
`
`List of licensees of US. Patent No. 6,282,646 (CONFIDENTIAL)
`
`Chart comparing an exemplary claim of the ‘646 patent to the Zen Vision:M
`device, a representative infringing product
`
`Supplemental Declaration (CONFIDENTIAL)
`
`Chart comparing an exemplary claim of the ‘646 patent to Apple’s MacBook Pro
`
`List of each foreign patent, each foreign patent application (not already issued as a
`patent), and each foreign patent application that has been denied, corresponding to
`the ‘646 patent
`
`32.
`
`Creative Zen Vision User’s Guide
`
`iv
`
`7
`
`

`

`Appendix Item
`
`Description
`
`APPENDICES
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`H.
`
`Certified Copy of Prosecution History for U.S. Patent No. 7,046,230
`
`Certified Copy of Prosecution History for U.S. Patent No. 5,341,293
`
`Certified Copy of Prosecution History for U.S. Patent No. 5,898,434
`
`Cited References for U.S. Patent No. 7,046,230
`
`Cited References for U.S. Patent No. 5,341,293
`
`Cited References for U.S. Patent No. 5,898,434
`
`Certified Copy of Prosecution History for U.S. Patent No. 6,282,646
`
`Cited References for U.S. Patent No. 6,282,646
`
`PHYSICAL EXHIBITS
`
`Exhibit Item
`
`Description
`
`1.
`
`2.
`
`Apple iPod (in box with packaging)
`
`Creative Zen Vision:M (in box with packaging)
`
`V
`
`8
`
`

`

`I.
`
`INTRODUCTION
`
`1.
`Apple Computer, Inc. (“Apple” or “Complainant”) files this Complaint under
`Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 5 1337, based upon the unlawful
`
`importation into the United States, the sale for importation into the United States, and the sale
`
`within the United States after importation, of certain portable digital media players and
`
`components thereof that infringe claim 25 of United States Letters Patent No. 7,046,230 (the
`
`“’230 patent”), claims 25 and 33 of United States Letters Patent No. 5,341,293 (the “’293
`
`patent”), claims 36,37,38,39,48,65,72,73,77, and 78 of United States Letters Patent No.
`
`5,898,434 (the ‘“434 patent”), and claims 1,24, and 32 of United States Letters Patent No.
`
`6,282,646 (the “’646 patent”) (collectively, the “Asserted Patents”).
`
`2.
`
`The proposed respondents are Creative Technologies, Ltd. (“Creative”) and
`
`Creative Labs, Inc. (“Creative Labs”) (collectively “Respondents”). Upon information and
`
`belief, Creative is a Singapore-based entity that designs and sells various digital entertainment
`
`products, including portable digital media players and components thereof that infringe the
`
`Asserted Patents. Upon information and belief, Creative Labs is a United States-based
`
`subsidiary of Creative that provides sales, marketing, training, and customer support for Creative
`
`in the United States.
`
`3.
`
`Certified copies of the ‘230, ‘293, ‘434, and ‘646 patents are included as Exhibits
`
`1,2,3, and 25, respectively.
`
`4.
`
`Apple owns all right, title, and interest in and to each of the Asserted Patents.
`
`Certified copies of the assignments of the ‘293, ‘434, and ‘646 patents, and a non-certified copy
`
`of the assignment of the ‘230 patent, are respectively attached as Exhibits 5, 6,26, and 4. The
`
`9
`
`

`

`‘230 patent issued on May 16,2006. A certified copy of the assignments for that patent are
`
`expected to become available approximately 45 days from issue, and will be provided to the
`
`Commission when obtained.
`
`5.
`
`An industry as required by 19 U.S.C. $5 1337(a)(2) and (3) exists in the United
`
`States relating to the technology protected by the Asserted Patents.
`
`6.
`
`Apple seeks a permanent exclusion order prohibiting from entry into the United
`
`States infringing portable digital media players and components thereof. Apple also seeks a
`
`permanent cease and desist order prohibiting importation, sale after importation, marketing,
`
`advertising, distributing, demonstrating, warehousing inventory for distribution, offering for sale,
`
`selling or otherwise transferring, licensing, or use of infringing portable digital media players
`
`and components thereof in the United States.
`
`11.
`
`COMPLAINANT
`
`7.
`
`Apple is a California corporation having its principal place of business at
`
`1 Infinite Loop, Cupertino, California 95014.
`
`8.
`
`Apple was incorporated in 1977. In addition to personal computers and related
`
`software, services, peripherals, and networking solutions, Apple designs, develops, and markets
`
`a line of portable digital media players along with related accessories and services including the
`
`online distribution of third-party music, audio books, music videos, short films, and television
`
`shows. Apple’s products and services include the Macintosh line of desktop and notebook
`
`computers, the iPod digital music player, a portfolio of consumer and professional software
`
`applications, the Mac OS X operating system, the iTunes Music Store, a portfolio of peripherals
`
`that support and enhance the Macintosh and iPod product lines, and a variety of other service and
`
`2
`
`10
`
`

`

`support offerings. Apple sells its products worldwide through its online stores, its own retail
`
`stores, its direct sales force, and third-party wholesalers, resellers, and value added resellers.
`
`9.
`
`Apple researched and developed the technology that is protected by the Asserted
`
`Patents. Apple continues to make significant investment in the design and development of
`
`products protected by the Asserted Patents. These include Apple’s iPod and iPod nano portable
`
`digital media players, and Apple’s iPhoto software application.
`
`10. As of September 2005, Apple had approximately 14,800 full-time equivalent
`employees and an additional 2,020 temporary employees and contractors. See Exhibit 23 (2005
`10-K) at 16. The majority of Apple’s employees work in California’s Silicon Valley. See
`
`Exhibit 23 (2005 10-K) at 54-55. For the 2005 fiscal year, Apple’s net sales were $13.9 billion,
`
`of which $4.5 billion were iPod sales and $900 million were iTunes Music Store sales, iPod
`services, and Apple-branded and third-party iPod accessories. See Exhibit 23 (2005 10-K) at 3 1.
`
`During fiscal year 2005, Apple sold 22.5 million iPod units.
`
`Exhibit 23 (2005 10-K) at 3 1.
`
`Apple’s largest geographic marketplace is the United States; approximately 60% of Apple’s net
`sales in 2005 came from sales to customers in the U.S. See Exhibit 23 (2005 10-K) at 15.
`
`111.
`
`THE PROPOSED RESPONDENTS
`
`1 1. On information and belief, Creative is a Singapore corporation with its principal
`
`place of business at 3 1 International Business Park, Creative Resource, Singapore 609921. On
`
`information and belief, Creative designs and sells for importation into the United States various
`
`digital entertainment products, including portable digital media players and components thereof
`
`that Creative intentionally imports into the United States.
`
`3
`
`11
`
`

`

`12. On information and belief, Creative Labs is a California corporation located at
`
`1901 McCarthy Boulevard, Milpitas, California 95035. On information and belief, Creative
`
`Labs is the sales, marketing, training and customer support organization for Creative in the
`
`United States.
`
`IV.
`
`THE TECHNOLOGY AND PRODUCTS AT ISSUE
`
`13.
`
`The products at issue are portable digital media players and components thereof,
`
`including software used with such devices. Such devices, including Apple’s iPod and Creative’s
`
`Zen Vision:M, store and play files in one or more media formats. The devices typically feature a
`
`user interface that facilitates navigation of features and content, a screen that displays
`
`information, a memory that stores digital information, and the ability to play audio digital media.
`
`Some portable digital media players also store and manage other digital information, including
`
`video files, digital photographs, text files, calendars, and address books.
`
`V.
`
`THE PATENTS IN SUIT AND NON-TECHNICAL DESCRIPTIONS OF THE
`INVENTIONS
`
`A.
`
`Overview and Ownership of the Asserted Patents
`
`14. Apple owns by assignment the entire right, title, and interest in and to each of the
`Asserted Patents. See Exhibits 1-6,25-26.
`
`1 5.
`
`Pursuant to Commission Rule 2 lO.l2(c), this Complaint includes a certified copy
`
`and three copies thereof of the prosecution histories of the ‘293, ‘434, and ‘646 patents, and four
`non-certified copies of the prosecution history for the ‘230 patent. See Appendices A-C, G.
`
`Apple will provide a certified copy of the ‘230 prosecution history, and three copies, when it
`
`becomes available. Pursuant to Commission Rule 2 10.12(c), this Complaint includes four copies
`
`4
`
`12
`
`

`

`of each reference mentioned in the Asserted Patents and/or their prosecution histories. See
`
`Appendices D-F, H.
`
`B.
`
`16.
`
`Non-Technical Description of the ‘230 Patent
`
`United States Letters Patent No. 7,046,230, entitled “Touch Pad Handheld
`
`Device,” issued on May 16,2006 to inventors Stephen Paul Zadesky and Tang Yew Tan. The
`
`‘230 patent issued from United States Patent Application Serial No. 10/188,182, filed on July 1,
`
`2002. The ‘230 patent expires on October 26,2022.
`
`17.
`
`The ‘230 patent has four (4) independent claims and twenty-four (24) dependent
`
`claims.
`
`18.
`
`The ‘230 patent is generally directed to various embodiments of a media device
`
`having a touch pad. The device includes various electrical components contained within a
`
`housing. These components include a hard drive for storing songs in MP3 format. The device
`
`also has a screen for displaying, among other things, a list of stored songs and a slider bar that
`
`traverses the song list to highlight a desired song from the list of songs. The device additionally
`
`has a touch pad that senses a moving finger tip, and a controller that controls various features of
`
`the device based on motion information from the touch pad. For example, the touch pad is used
`
`to control the sound volume and to move the slider bar through the list of songs. A button in the
`
`center of the touch pad is used to select the song highlighted by the slider bar. The direction and
`
`speed of the slider bar is based at least in part on the direction and speed of the finger moving
`
`across the touch pad. The device produces audible sounds (clicks) based on the speed of the
`
`slider bar as it traverses through the song list. The device outputs music through a built-in
`
`headphone jack.
`
`5
`
`13
`
`

`

`C.
`
`19.
`
`Non-Technical Description of the ‘293 Patent.
`
`United States Letters Patent No. 5,341,293, entitled “User Interface System
`
`Having Programmable User Interface Elements,” issued on August 23, 1994 to inventors Laurie
`
`J. Vertelney, Thomas D. Erickson, S. Joy Mountford, John A. Thompson-Rohrlich, Gitta B.
`
`Salomon, Yin Y. Wong, Daniel S. Venolia, Kathleen M. Gomoll, and Eric A. Hulteen. The ‘293
`
`patent issued from U.S. Patent Application Serial No. 940,237 (“’237 Application”), filed on
`
`September 3, 1992. The ‘293 patent is a continuation of U.S. Patent Application Serial No.
`
`700,729, filed on May 15, 1991, which issued as U.S. Patent No. 5,202,828. By operation of a
`
`terminal disclaimer, the ‘293 patent expires on May 15,201 1.
`
`20.
`
`The ‘293 patent has two (2) independent claims and forty-six (46) dependent
`
`claims.
`
`21.
`
`The asserted claims of the ‘293 patent are generally directed to methods of
`
`marking and finding data in a computer. Data displayed on the computer screen is marked with a
`
`first identifier that identifies a user interface element to the user. A second identifier for the user
`
`interface element, which identifies the user interface element to the computer, is stored in
`
`memory as a proxy to the marked data. The marked data is found in memory by searching for
`
`the proxy, and the marked data is then displayed.
`
`D.
`
`22.
`
`Non-Technical Description of the ‘434 Patent.
`
`United States Letters Patent No. 5,898,434, entitled “User Interface System
`
`Having Programmable User Interface Elements,” issued on April 27, 1999 to inventors Ian S.
`
`Small, Michael Chen, Eric L. Zarakov, Richard L. Mander, Laurie J. Vertelney, Amanda R.
`
`Mander, Michael A. Arent, James P. Faris, Jeffrey E. Tycz, and Lewis C. Knapp. The ‘434
`
`6
`
`14
`
`

`

`patent is a continuation-in-part of the ‘237 Application. By operation of a terminal disclaimer,
`
`the ‘434 patent expires on May 15,201 1.
`
`23.
`
`The ‘434 patent has thirty-seven (37) independent claims and forty-nine (49)
`
`dependent claims.
`
`24.
`
`The asserted claims of the ‘434 patent are generally directed to methods of
`
`marking and finding data in a computer. Data is associated with a user interface element having
`
`identifying information to identify the element to the computer. Data is then found by searching
`
`for identifying information of a user interface element associated with that data.
`
`E.
`
`25.
`
`Non-Technical Description of the ‘646 Patent.
`
`United States Letters Patent No. 6,282,646, entitled “System for Real-Time
`
`Adaptation To Changes In Display Configuration,” issued August 28,2001, to inventors Ian
`
`Hendry, Eric Anderson, and Fernando Urbina. The ‘646 patent expires May 8,201 8.
`
`26.
`
`The ‘646 patent has eight (8) independent claims and twenty-five (25) dependent
`
`claims.
`
`27.
`
`The asserted claims of the ‘646 patent are generally directed to methods for
`
`reconfiguring a computer system to accommodate changes in a display environment. The
`
`addition or removal of an inputloutput device in the computer system is detected. In response to
`
`this detection, a determination is made as to whether the inputloutput device which has been
`
`added or removed is a video device. When a determination is made that a video device has been
`
`added or removed, the display manager is notified, and the allocation of display space to display
`
`devices is modified.
`
`7
`
`15
`
`

`

`F.
`
`28.
`
`Foreign Counterparts
`
`Lists of each foreign patent, each foreign patent application (not already issued as
`
`a patent), and each foreign patent application that has been denied, corresponding to each of the
`
`Asserted Patents, with an indication of the prosecution status of each such foreign patent
`
`application, are attached as Exhibits 24 and 3 1. No other foreign patents or patent applications
`
`corresponding to any of the Asserted Patents have been filed, abandoned, withdrawn, or rejected.
`
`G.
`
`29.
`
`Licenses
`
`Lists identifying each licensee of each Asserted Patent are attached at
`
`(Confidential) Exhibits 7 and 27. Three copies of each license agreement arising out of each of
`
`the Asserted Patents, or, if a standard license agreement is used, three copies of such standard
`
`license agreement and a list of licensees operating under such agreement, are attached at
`
`(Confidential) Exhibit 8.
`
`VI. UNLAWFUL AND UNFAIR ACTS OF RESPONDENT-PATENT
`INFRINGEMENT
`
`30.
`
`On information and belief, portable digital media players and components thereof
`
`are sold for importation, imported, and sold after importation in the United States by or on behalf
`
`of Respondents under various model names.
`
`3 1. Upon information and belief, at least the following Creative portable digital media
`
`players infringe claim 25 of the ‘230 patent: Zen Vision:M; Zen Microphoto; Zen Micro; Zen
`
`Sleek; and Zen Sleek Photo. A chart comparing exemplary claim 25 of the ‘230 patent to
`
`Creative’s Zen Vision:M is attached as Exhibit 9.
`
`32.
`
`Upon information and belief, at least the following Creative portable digital media
`
`players infringe claims 25 and 33 of the ’293 patent: Zen Vision and Zen Vision:M. A chart
`
`8
`
`16
`
`

`

`comparing exemplary claim 25 of the ‘293 patent to Creative’s Zen Vision:M is attached as
`
`Exhibit 10.
`
`33. Upon information and belief, at least the following Creative portable digital media
`
`players infringe claims 36, 37,38,39,48,65,72,73,77, and/or 78 of the ’434 patent: Zen
`
`Vision; Zen Vision:M; Zen MicroPhoto; Zen Micro; Zen Sleek Photo; and Zen Sleek. A chart
`
`comparing exemplary claim 77 of the ‘434 patent to Creative’s Zen Vision:M is attached as
`
`Exhibit 1 1.
`
`34. Upon information and belief, at least the following Creative portable digital media
`
`players infringe 1’24, and 32 of the ’646 patent: Zen Vision and Zen Vision:M. A chart
`
`comparing exemplary claim 1 of the ‘646 patent to Creative’s Zen Vision:M is attached as
`
`Exhibit 28.
`
`A.
`
`35.
`
`Direct Infringement
`
`Respondents directly infringe the Asserted Patents by making, using, selling,
`
`offering for sale, and importing the articles claimed by the ‘230 patent and by practicing the
`
`claimed methods of the ‘293, ‘434, and ‘646 patents through activities such as use, testing, and
`
`product support of the accused products.
`
`B.
`
`36.
`
`Contributory Infringement
`
`Respondents’ activities with respect to the accused devices also contribute to the
`
`direct infringement of the Asserted Patents by users of Respondents’ products in violation of 35
`U.S.C. 3 271(c). Respondents know of the ‘293 and ‘434 patents, and their infringement of
`
`those patents, through actual notice by Apple. Upon information and belief, Respondents know
`
`9
`
`17
`
`

`

`of the ‘230 patent. Respondents will have actual notice of the ‘646 patent, and their infringement
`
`of that patent, at least as early as upon receipt of this complaint.
`
`37. Accused devices sold by Respondents, including the Zen Vision:M and Zen
`
`Vision, are specifically configured to allow the user to mark and find data in ways that infringe
`
`the ‘293 and ‘434 patents, and to accommodate changes in a display environment in ways that
`
`infringe the ‘646 patent. Accused devices sold by Respondents, including the Zen Vision:M and
`
`Zen Vision, are not staple articles of commerce and Respondents know or should know that these
`
`devices have no substantial non-infringing uses.
`
`C.
`
`38.
`
`Inducement of Infringement
`
`Respondents also actively and knowingly aid and abet the direct infringement of
`
`the Asserted Patents by Respondents’ customers, constituting active inducement to infringe
`under 35 U.S.C. 5 271(b).
`
`39.
`
`Respondents induce infringement of the method claims of the Asserted Patents by
`
`actively inducing their customers in the United States to operate accused devices, including the
`
`Zen Vision:M and Zen Vision, in direct infringement of the asserted claims. For example, the
`
`User’s Guide for the Zen Vision:M instructs the user on how to use the “rate” feature for digital
`
`photos, as claimed in the ‘293 patent. See, ex., Exhibit 20 (Zen Vision:M User’s Guide) at 16.
`
`The User’s Guide also instructs the user on how to connect the device to a television set to view
`
`the device’s content (videos, photos, etc.) on a larger screen, which procedure entails
`
`performance of the methods claimed in the ‘646 patent. See, e.g., Exhibit 20 (Zen Vision:M
`
`User’s Guide) at 24.
`
`10
`
`18
`
`

`

`40.
`
`Respondents engage in these unlawful acts despite actual knowledge of the ‘293
`
`and ‘434 patents and, at least as early as upon receipt of this complaint, actual knowledge of the
`
`‘646 patent.
`
`VII. SPECIFIC INSTANCES OF UNFAIR IMPORTATION AND SALE
`
`41.
`
`On information and belief, Respondents import, sell for importation into the
`
`United States, and/or sell within the United States after importation, portable digital media
`
`players and components thereof that infringe the asserted claims of the Asserted Patents. On
`
`information and belief, these devices and components are manufactured abroad.
`
`42.
`
`For example, a Creative Zen Vision:M was purchased from Amazon.com on or
`
`about February 14,2006. The purchase was made by an individual in California using a
`
`computer in California, and the product was shipped to and received by the buyer in California.
`
`Exhibit 14. A photo of the Creative Zen Vision:M device is attached as Exhibit 12. The
`label on the back of the packaging indicates the device was made in Malaysia. See Exhibit 13.
`
`Another Creative Zen Vision:M was purchased on May 19,2006 at a Best Buy retail store
`located in Los Angeles, California. See Exhibit 14. A sample Zen Vision:M is provided
`
`concurrently with this complaint at Physical Exhibit 2.
`
`VIII. HARMONIZED TARIFF SCHEDULE ITEM NUMBERS
`
`43.
`
`On information and belief, the infringing portable digital media players and
`
`components thereof have been imported into the United States under, at a minimum, section
`
`85 19 (inclusive of subsections) of the United States Harmonized Tariff Schedule.
`
`11
`
`19
`
`

`

`IX. RELATED LITIGATION
`
`44.
`
`On May 15,2006, Apple filed a complaint against Creative Labs in the United
`
`States District Court for the Western District of Wisconsin, styled Apple Computer, Inc. v.
`
`Creative Labs, Inc., Case No. 06-C-0263-C (“Wisconsin Litigation”). In the Wisconsin
`
`Litigation, Apple alleged infringement of various Apple patents, including the ‘293 and ‘434
`
`patents (but not the ‘230 and ‘646 patents).
`
`45. On May 15,2006, Creative and Creative Labs filed a complaint with the
`
`Commission entitled In re Certain Portable Digital Media Players, Components Thereox and
`
`Products Containing Same, Case No. 337-2484 (the “Creative Complaint”). The named parties
`
`in the instant action and the Creative Complaint are identical. The accused products in the
`Creative Complaint -- Apple’s iPod and iPod nano