IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
`
`TRIPLE7VAPING.COM, LLC
`and JASON W. CUGLE,
`
`Plaintiffs,
`
`vs.
`
`SHIPPING & TRANSIT LLC,
`
`Defendant.
`________________________________/
`
`Case No. _____________
`
`COMPLAINT FOR DECLARATORY JUDGMENT AND
`FOR VIOLATION OF MARYLAND COMMERCIAL LAW § 11-1601 ET SEQ.
`Plaintiffs, TRIPLE7VAPING.COM, LLC (“Triple7”) and JASON W. CUGLE
`
`(“Cugle”), collectively Plaintiffs, by and through their undersigned counsel, hereby sue
`
`Defendant, SHIPPING & TRANSIT LLC, formerly known as ArrivalStar S.A. and Melvino
`
`Technologies Limited, (“Shipping & Transit”), and in support, allege as follows:
`
`NATURE OF THE LAWSUIT
`
`1.
`
`This is an action for declaratory judgment and for violation of Maryland
`
`Commercial Law § 11-601 et seq.
`
`2.
`
`Plaintiffs seek a declaratory judgment that four patents allegedly owned by
`
`Shipping & Transit are invalid and not infringed by Plaintiffs. The four patents are (1) U.S.
`
`Patent No. 7,400,970 (“the ’970 Patent”); (2) reexamined U.S. Patent No. 6,904,359 (“the ’359
`
`Patent”); (3) U.S. Patent No. 6,763,299 (“the ’299 Patent”); and (4) U.S. Patent No. 6,415,207
`
`(“the ’207 Patent”) (collectively, the “Patents-In-Suit”).
`
`3.
`
`Copies of the ’970 Patent, the ’359 Patent, the ’359 reexamination certificate, the
`
`’299 Patent, and the ’207 Patent are attached hereto as Exhibits A-E, respectively.
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`4.
`
`Plaintiffs also seek a finding that Shipping & Transit violated Maryland
`
`Commercial Law § 11-1601 et seq. by sending a demand letter in bad faith.
`
`5.
`
`Plaintiffs seek this relief because on or about January 6, 2016, Shipping & Transit
`
`sent a letter (the “Demand Letter”) to “Triple7Vaping.com, LLC” in which Shipping & Transit
`
`demanded Triple7 pay a substantial licensing fee for licensing of the Patents-In-Suit. A copy of
`
`the Demand Letter is attached as Exhibit F.
`
`6.
`
`As explained below, Shipping & Transit’s allegations of infringement are also
`
`directed at Cugle’s products and services as provided through Triple7Vaping.com, which is run
`
`as a sole proprietorship.
`
`7.
`
`There exists a real dispute between Plaintiffs and Shipping & Transit, as Shipping
`
`& Transit has accused Plaintiffs of infringement and has demanded a licensing fee. Furthermore,
`
`Shipping & Transit has filed over 500 lawsuits related to patents it claims to own.
`
`8.
`
`Shipping & Transit has filed at least forty lawsuits since 2016 relating to one or
`
`more of the Patents-In-Suit.
`
`9.
`
`Given the Demand Letter, as well as all other allegations in this complaint,
`
`including specifically Shipping & Transit’s practice of regularly filing numerous lawsuits, there
`
`exists a concrete and immediate justiciable controversy between Plaintiffs and Shipping &
`
`Transit.
`
`10.
`
`Plaintiff Cugle is a natural person residing at 7659 Beth Noelle Court, Pasadena,
`
`PARTIES
`
`Maryland.
`
`11.
`
`Plaintiff Triple7 was a limited liability company formed on August 26, 2015
`
`under the laws of Maryland, with its principal place of business at 7659 Beth Noelle Court,
`
`Pasadena, Maryland. See Exhibit G.
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`2
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`12.
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`Triple7 was terminated as a Maryland limited liability company on January 6,
`
`2016, and Cugle was designated its resident agent for one year after termination. See Exhibit H.
`
`13.
`
`Pursuant to Maryland law, Triple7 continues to exist as a legal entity capable of
`
`bringing suit in order to do all acts required to wind up its business and affairs. See MD Corp.
`
`and Assoc. § 4A-908(b).
`
`14.
`
`Although Triple7 was intended to operate “www.Triple7Vaping.com” (“the
`
`Website”), it does not operate the Website, and Cugle has operated the Website as a sole
`
`proprietorship before, during, and after the legal existence of Triple7.
`
`15.
`
`16.
`
`Cugle continues to operate the Website as a sole proprietorship.
`
`On information and belief, defendant Shipping & Transit is a Florida limited
`
`liability company with its principal place of business located at 711 Southwest 24th Avenue,
`
`Boynton Beach, Florida.
`
`JURISDICTION AND VENUE
`
`17.
`
`This Court has subject matter jurisdiction over Plaintiffs’ declaratory judgment
`
`claims pursuant to 28 U.S.C. §§ 1331, 1338, and 2201 because this action arises under the Patent
`
`Act and seeks relief under the Federal Declaratory Judgment Act.
`
`18.
`
`This Court has subject matter jurisdiction over Plaintiffs’ claims for violation of
`
`Maryland Commercial Law § 11-1601 et seq. pursuant to 28 U.S.C. § 1332(a) because the
`
`parties are diverse and the amount in controversy exceeds $75,000, exclusive of interest and
`
`costs.
`
`19.
`
`Specifically, Maryland Commercial Law. § 11-1605 provides for the recovery of
`
`actual damages, costs, attorneys’ fees, and exemplary damages up to the greater of $50,000 or
`
`three times the total of damages, costs, and fees.
`
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`20.
`
`It is estimated that actual damages, court costs, fees, and exemplary damages
`
`awardable under Maryland Commercial Law § 11-1605 here exceed $75,000.
`
`21.
`
`This Court also has subject matter jurisdiction over Plaintiffs’ claim for violation
`
`of Maryland Commercial Law § 11-601 et seq. pursuant to 28 U.S.C. § 1367(a), because this
`
`Court has original jurisdiction over Plaintiffs’ declaratory judgment action, and Plaintiffs’ claim
`
`for violation of Maryland Commercial Law § 11-601 et seq. is so related to Plaintiffs’
`
`declaratory judgment action such that they form part of the same case or controversy.
`
`22.
`
`This Court has personal jurisdiction over Shipping & Transit because it is
`
`domiciled in Florida, has its principal place of business in Florida, and has filed a number of
`
`lawsuits in this district, thereby voluntarily subjecting itself to this Court’s jurisdiction.
`
`23.
`
`Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b), 1391(c), and
`
`1400(b) because Shipping & Transit resides in this judicial district, is subject to personal
`
`jurisdiction in this judicial district, regularly conducts business in this judicial district, maintains
`
`its business records in this judicial district, and/or because a substantial part of the events or
`
`omissions giving rise to this action occurred in this district.
`
`FACTUAL BACKGROUND
`Triple7, Cugle’s Website Triple7Vaping.com, and Associated Business Practices
`
`I.
`
`24.
`
`The Website, www.Triple7Vaping.com, is an Internet storefront selling goods
`
`related to electronic cigarettes.
`
`25.
`
`26.
`
`The Website began public operation on or about May 5, 2015.
`
`The fact that the Website did not exist on or before May 5, 2015 can be
`
`determined quickly and easily, for free, by typing “whois triple7vaping.com” into a terminal
`
`window of any computer connected to the Internet. See Exhibit I.
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`27.
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`The majority of the orders placed on the Website are mail order, in that they are
`
`delivered by a carrier service.
`
`28.
`
`Cugle uses the United States Postal Service (“USPS”) to ship all packages ordered
`
`as mail order, unless a specific request is made by the customer to use a different carrier.
`
`29. When a customer places an order, Cugle prepares a package for shipment and
`
`takes it to the local USPS post office.
`
`30.
`
`31.
`
`32.
`
`USPS provides a tracking number as part of its service.
`
`Cugle also prepares an email to the customer that includes the tracking number.
`
`The email to the customer informing them that their package was shipped and
`
`providing the tracking number for the package is sent in plain text. It does not contain any
`
`“links.”
`
`33.
`
`The email is not sent automatically. Cugle manually composes and sends the
`
`email to the customer after the postage for the package is purchased.
`
`34.
`
`After this email is sent, Cugle does not send any more emails to the customer that
`
`include a tracking number as part of his regular practice, unless specifically requested from the
`
`customer.
`
`35.
`
`If a customer does email Cugle, any subsequent emails and/or responses are not
`
`sent automatically. Cugle manually composes and sends any response email to the customer.
`
`36.
`
`Cugle does not provide its customers with any way to track the shipment of their
`
`packages other than providing them with a plain text tracking number for entry at a third-party
`
`website.
`
`37.
`
`Customers wishing to track a package must visit USPS.com or the website of the
`
`related carrier if a different carrier was requested, in order to track a package.
`
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`II.
`
`Shipping & Transit’s Business
`
`38.
`
`On information and belief, Shipping & Transit is the successor-in-interest to
`
`ArrivalStar S.A. and Melvino Technologies Limited, which are themselves formerly known as
`
`ArrivalStar Inc. (collectively, “ArrivalStar”).
`
`39.
`
`Specifically, Shipping & Transit claims it is formerly known as ArrivalStar S.A.
`
`and Melvino Technologies Limited.
`
`40.
`
`On information and belief, Shipping & Transit’s current members, Peter Sirianni
`
`and Martin Kelly Jones, were associated with each ArrivalStar entity.
`
`41.
`
`On information and belief, Shipping & Transit owns and/or controls a portfolio of
`
`at least 34 patents.
`
`42.
`
`ArrivalStar and Shipping & Transit have collectively alleged infringement of one
`
`or more of the Patents-in-Suit in over 300 lawsuits against over 650 defendants, in actions filed
`
`across the United States. Upon information and belief, ArrivalStar and Shipping & Transit have
`
`sent demand letters to thousands of additional parties regarding the Patents-in-Suit and have
`
`obtained numerous licensing agreements without filing lawsuits.
`
`43.
`
`On information and belief, Shipping & Transit makes no products and sells no
`
`services, and Shipping & Transit’s sole business is to enforce the Patents-in-Suit and other
`
`patents it owns and/or controls.
`
`III.
`
`Shipping & Transit’s Patents
`
`44.
`
`Shipping & Transit alleges it owns all rights, title and interest in, and/or has
`
`standing to sue for infringement of United States Patent Number 7,400,970 (“the ’970 patent”),
`
`entitled “System and Method for an Advance Notification System for Monitoring and Reporting
`
`Proximity of a Vehicle,” issued July 15, 2008. A copy of the ’970 patent is attached hereto as
`
`Exhibit A.
`
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`The ’970 patent expired no later than July 1, 2013.
`
`On information and belief, Shipping & Transit is aware that the ’970 patent has
`
`45.
`
`46.
`
`expired.
`
`47.
`
` Shipping & Transit alleges it owns all rights, title and interest in, and/or has
`
`standing to sue for infringement of United States Patent Number 6,904,359 (“the ’359 patent”),
`
`entitled “Notification System and Methods with User-Definable Notifications Based Upon
`
`Occurrence of Events,” issued June 7, 2005. A copy of the ’359 patent is attached hereto as
`
`Exhibit B.
`
`48.
`
`The ’359 patent was the subject of an inter partes reexamination at the United
`
`States Patent and Trademark Office. A Reexamination Certificate was issued on May 25, 2010
`
`and is attached hereto as Exhibit C.
`
`The ’359 patent expired no later than August 27, 2013.
`
`On information and belief, Shipping & Transit is aware that the ’359 patent has
`
`49.
`
`50.
`
`expired.
`
`51.
`
`Shipping & Transit alleges it owns all rights, title and interest in, and/or has
`
`standing to sue for infringement of United States Patent Number 6,763,299 (“the ’299 patent”),
`
`entitled “Notification systems and methods with notification based upon prior stop locations,”
`
`issued July 12, 2004. A copy of the ’299 patent is attached hereto as Exhibit D.
`
`The ’299 patent expired no later than May 18, 2013.
`
`On information and belief, Shipping & Transit is aware that the ’299 patent has
`
`52.
`
`53.
`
`expired.
`
`54.
`
`Shipping & Transit alleges it owns all rights, title and interest in, and/or has
`
`standing to sue for infringement of United States Patent Number 6,415,207 (“the ’207 patent”),
`
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`entitled “System and Method for Automatically providing vehicle status information,” issued
`
`July 2, 2002. A copy of the ’207 patent is attached hereto as Exhibit E.
`
`55.
`
`The ’207 patent expires on March 1, 2020.
`
`1.
`
`The Alleged “Inventions” of the ’970 Patent, the ’359 Patent, and the
`’299 Patent
`
`56.
`
`Shipping & Transit previously characterized its patents as “generally relat[ing] to
`
`systems and methods for providing electronic messages to users concerning the travel status of
`
`vehicles.” See Exhibit J, at 2 (emphasis added).
`
`57.
`
`The ’359 patent and the ’299 patent note alleged deficiencies in the prior art,
`
`specifically pointing to the deficiencies in package tracking systems such as those used by UPS
`
`and FedEx:
`
`Additionally, individuals already try to project the arrival of a vehicle or package
`by online package tracking services provided by commercial delivery companies,
`such as the United Parcel Service (UPS), Federal Express (FED-X), and others.
`Although traditional methods used in determining when a vehicle are to arrive at a
`stop is effective in some cases, a more precise method using a pre-warning
`message can be more helpful in providing accurate information. Currently, such
`vehicles, in order to ensure delivery of all packages in the same day, keep loads at
`a lower capacity in order to compensate for waiting times encountered at a
`percentage of vehicle stops when customers react slowly to their arrival.
`
`’359 patent, Exhibit B, col. 2, ll. 20-33; ’299 patent, Exhibit D, col. 2, ll. 20-33.
`
`58.
`
`The ’970 recites a similar alleged deficit in the prior art methods:
`
`Yet another example is in the commercial overnight package delivery industry,
`wherein packages are delivered on a tight schedule. Customers oftentimes wait on
`delivery of important time-critical packages not knowing precisely when the
`delivery will occur. A system informing the customer of the precise arrival time is
`desirable in order to improve customer service and to allow the customer to better
`rely on the estimated arrival time of the delivery.
`
`’970 patent, Exhibit A, col. 2, ll. 32-39.
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`59.
`
`The ’359 and ’299 patents disclose and claim only a “more precise method” of
`
`notifying a user of an approaching vehicle using a “pre-warning message.” ’359 patent, col. 2, l.
`
`26; ’299 patent, col. 2, l. 26; see also ’970 patent at col. 2. ll. 36-39 (“A system informing the
`
`customer of the precise arrival time is desirable in order to improve customer service and to
`
`allow the customer to better rely on the estimated arrival time of the delivery.”). This message is
`
`triggered when a vehicle is a particular distance, location, or time period—“for example a
`
`number of minutes or seconds”—away from arriving at a destination “so that the user can adjust
`
`his/her schedule and avoid arriving too early or too late.” ’359 patent, col. 2, ll. 20-42; ’299
`
`patent, col. 2, ll. 20-42; see also ’970 patent at col. 2, ll. 42-43 (“particular time period (for
`
`example, a certain number of minutes or seconds) away from arriving at a destination”).
`
`2.
`
`The Alleged “Inventions” of the ’207 Patent
`
`60.
`
`The ’207 patent begins by noting that in the prior art:
`
`[I]t is possible for users to call a central processing station to obtain information
`on the status of a vehicle of interest. For example, it is possible for a user to call
`an airline or a bus depot and find out whether an airplane or bus is on or off
`schedule. In some situations a human operator at the processing station (e.g., the
`airline or bus depot) receives the call from the user who asks the operator for
`information regarding the status of a particular vehicle.
`
`’207 patent, Exhibit E, col. 1, ll. 22-29.
`
`61.
`
`The ’207 patent further notes that in the prior art:
`
`In other situations, the status information is automatically provided to the user
`after the user has submitted a status information request, thereby eliminating the
`need of human interaction at the processing station. . . . The computer then
`automatically retrieves information pertaining to the status of the vehicle
`identified by the user's inputs and provides this information to the user.
`
`’207 patent, Exhibit E, col. 1, ll. 33-46.
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`65.
`
`Although the ’207 patent claims similar subject matter to the ’970 patent, the ’359
`
`patent, and the ’299 patent, there is no formal relationship between the ’207 patent and the other
`
`Patents-in-Suit. Consequently, the ’970 patent, the ’359 patent, and the ’299 patent are prior art
`
`to the ’207 patent.
`
`IV.
`
`The Demand Letter and Shipping & Transit’s Failure to Investigate Infringement
`or Alternatively, Willful Disregard of the Facts Unearthed During an Investigation
`
`66.
`
`Shipping & Transit and/or ArrivalStar’s pattern and practice of asserting patents
`
`against entities that do not practice the patented technology to obtain nuisance value settlements
`
`is evident in the Demand Letter they sent to Triple7 accusing Cugle’s Website of infringement.
`
`67.
`
`On or about January 6, 2016, Shipping & Transit sent the Demand Letter to
`
`Triple7 at 7659 Beth Noelle Court, Pasadena, MD 21122. The letter was also sent via email to
`
`the email address info@triple7vaping.com, owned by Cugle. See Exhibit F.
`
`68.
`
`The Demand Letter sought a license for the ’207 patent and damages for past
`
`usage of the ’970, ’359, and ’299 patents. See Exhibit F, at 1.
`
`69.
`
`Shipping & Transit demanded a license fee of $25,000 for a license to the Patents-
`
`in-Suit, and only the Patents-in-Suit. See Exhibit F, at 14.
`
`70.
`
`Shipping & Transit has no basis to allege Triple7 or Cugle had any knowledge of
`
`the Patents-in-Suit prior to the receipt of the Demand Letter.
`
`71.
`
`Shipping & Transit did not disclose that three of the four allegedly infringed
`
`patents had expired in 2013.
`
`72.
`
`A reasonable person would not have alleged infringement of patents that expired
`
`in 2013 against a website and company that did not exist until 2015 without further inquiry.
`73.
`On information and belief, Shipping & Transit did not perform any substantive,
`reasonable investigation prior to sending the Demand Letter alleging patent infringement.
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`74.
`
`Alternatively, if Shipping & Transit did conduct an investigation at any point, its
`
`assertion of infringement occurred despite facts plainly contrary to any claim of infringement.
`
`75.
`
`A reasonable investigation makes clear Triple7 and Cugle do not infringe any of
`
`the Patents-in-Suit.
`76.
`
`Had Shipping & Transit conducted even a cursory investigation into Cugle’s
`
`practices, Shipping & Transit would have learned at least the following, all of which indicate that
`Triple7 and/or Cugle could not have infringed any of the expired patents prior to expiration:
`
`a.
`
`b.
`
`The Website did not exist prior to May 5, 2015.1 See Exhibit I.
`
`Triple7 did not exist prior to August 26, 2015. See Exhibit K.
`
`77.
`
`Shipping & Transit knew or should have known how to use WHOIS information,
`
`as ArrivalStar previously received such information in litigation relating to ArrivalStar’s claims
`
`of infringement. See Exhibit L.
`
`78.
`
`Shipping & Transit did not disclose in the Demand Letter that ArrivalStar had
`
`previously sued the United States for infringement based on the activities of the United States
`
`Postal Service, and had covenanted not sue the United States for any claims relating to United
`
`States Patent Nos. 6,278,936, 6,714,859, 6,904,359, 7,089,107, 7,400,970, or any other patents
`
`that may issue claiming priority from those patents. See Exhibit M.
`
`79.
`
`Shipping & Transit did not disclose in the Demand Letter that, on information and
`
`belief, Shipping & Transit and/or ArrivalStar do not require a significant number of its licensees
`
`to mark products with the numbers of the Patents-in-Suit, thus preventing Shipping & Transit’s
`
`
`1 Cugle previously operated his business via the website Triple7TradingCo.com. That website
`was created on December 7, 2014. In either event, neither website existed before three of the
`four Patents-in-Suit expired.
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`ability to recover damages for any infringement occurring prior to Shipping & Transit’s Demand
`
`Letter. See 35 U.S.C. § 287. See Exhibit N, at 3 (stating that as of July 14, 2008, only a single
`
`licensee was obligated to mark the licensed patent numbers on its licensed product); see also
`
`Exhibit O (on information and belief, typical licensing agreement presented to targets by
`
`ArrivalStar and/or Shipping & Transit).
`
`80.
`
`A reasonable person would not have alleged infringement of patents that expired
`
`in 2013 without reasonably investigating when the allegedly infringing products and/or services
`
`first came into existence.
`
`81.
`
`A reasonable person would not have alleged infringement of patents based on
`
`products and services that can only be used to track packages when each claim allegedly
`
`infringed relates to tracking vehicles.
`
`1.
`
`Allegations Regarding Infringement of the ’970 Patent
`
`82.
`
`In the Demand Letter, Shipping & Transit accused Triple7 and Cugle’s Website
`
`and/or services of infringing Claim 1 of the ’970 patent.
`
`83.
`Claim 1 of the ’970 patent claims as follows:
`1. A computer based notification system, comprising:
`
`means for enabling communication with a user that is designated to
`receive delivery of a package;
`
`means for presenting one or more selectable options to the user, the
`selectable options including at least an activation option for instigating
`monitoring of travel data associated with a vehicle that is delivering the
`package to the user;
`
`means for requesting entry by the user of a package identification number
`or package delivery number, each pertaining to delivery of the package;
`
`means for identifying the vehicle based upon the entry;
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`means for requesting entry by the user of contact information indicating
`one or more communication media to be used in connection with a
`notification communication to the user;
`
`means for monitoring the travel data; and
`
`84.
`
`85.
`
`means for initiating the notification communication pertaining to the
`package via the one or more communication media, based upon the travel
`data.
`
`Shipping & Transit’s allegations of infringement of Claim 1 are baseless.
`
`For example, Shipping & Transit alleges that:
`
`a.
`
`A “shipment tracking update link” related to a package meets the
`
`limitation of “monitoring of travel data associated with a vehicle.”
`
`(emphasis added);
`
`b.
`
`A “order number and link,” “account number and link,” and a “shipment
`
`tracking number and link” meet the limitation of “means for requesting
`
`entry by the user of a package identification number” and the limitation of
`
`“means for identifying the vehicle based upon the entry” (emphasis
`
`added); and
`
`c.
`
`“Package tracking” meets the limitation of “means for monitoring the
`
`travel data” associated with a vehicle. (emphasis added).
`
`86.
`
`On information and belief, Shipping & Transit willfully misreads and
`
`intentionally misrepresents the scope of the ’970 patent to claim infringement by products and
`
`services that it knows are not covered by its claims so that it may extract nuisance value
`
`settlements.
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`2.
`
`Alleged functionality of Cugle’s System and what would have been
`discovered by a reasonable investigation, relating to the ’970 patent
`
`87.
`
`Contrary to Shipping & Transit’s allegations, a reasonable investigation would
`
`have shown that the accused “system” does not provide a “shipment tracking update link within
`
`the shipment confirmation email.” A reasonable investigation would have shown that emails sent
`
`by the accused “system” are plain text emails that do not contain any links.
`
`88.
`
`Contrary to Shipping & Transit’s allegations, a reasonable investigation would
`
`have shown that the accused “system” does not send any emails that contain an “order number
`
`and link,” “account number and link,” or a “shipping tracking number and link.” A reasonable
`
`investigation would have shown that emails sent by the accused “system” are plain text emails
`
`that do not contain any links.
`
`3.
`
`Allegations Regarding Infringement of the ’359 Patent
`
`89.
`
`In the Demand Letter, Shipping & Transit accused Triple7 and Cugle’s Website
`
`of infringing Claim 41 of the ’359 patent.
`
`90.
`
`Shipping & Transit did not disclose that the ’359 patent had been reexamined by
`
`the Patent Office and that the allegedly infringed claim, original claim 41, had been amended
`
`during reexamination. See Exhibit C.
`
`91.
`
`Shipping & Transit did not allege infringement of the amended claim of the ’359
`
`patent and instead claimed infringement of the previous, now amended, original version of Claim
`
`41 that no longer exists.
`
`92.
`
`Amended Claim 41 of the ’359 patent claims as follows (additional limitations not
`
`found in original claim 41 in italics):
`
`41. A notification system, comprising:
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`(a) means for permitting a user to predefine one or more events that will
`cause creation and communication of a notification relating to the status of
`a mobile vehicle in relation to a location, comprising:
`
`(1) means for permitting the user to electronically communicate
`during a first communication link with the notification system
`from a user communications device that is remote from the
`notification system and the vehicle whose travel is being
`monitored, the notification system being located remotely from the
`vehicle; and
`
`(2) means for receiving during the first communication link an
`identification of the one or more events relating to the status of the
`vehicle, wherein the one or more events comprises at least one of
`the following: distance information specified by the user that is
`indicative of a distance between the vehicle and the location,
`location information specified by the user that is indicative of a
`location or region that the vehicle achieves during travel, time
`information specified by the user that is indicative of a time for
`travel of the vehicle to the location, or a number of one or more
`stops that the vehicle accomplishes prior to arriving at the location;
`and
`
`(b) means for establishing a second communication link between the
`system and the user upon occurrence of the one or more events achieved
`by the mobile vehicle during the travel.
`
`93.
`
`In a previous litigation, a Special Master construed the term “location information
`
`specified by the user that is indicative of a location or region that the vehicle achieves during
`
`travel” to mean “location information identified by the user for indicating a location (other than
`
`the location) or region that the vehicle achieves during travel prior to arriving at the location.”
`
`See Exhibit P, at 48.
`
`94.
`
`The Special Master rejected ArrivalStar’s proposed construction that would have
`
`allowed the “location region that the vehicle achieves during travel” to include arrival of the
`
`vehicle at the user’s location (i.e. delivery address). Id. at 49.
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`95.
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`Even if Claim 41 still existed in its original, unamended form, as alleged by
`
`Shipping & Transit, Shipping & Transit’s allegations of infringement of Claim 41 are baseless.
`
`96.
`
`For example, Shipping & Transit alleges that:
`
`a.
`
`Entering a delivery address meets the limitation of “permitting a user to
`
`predefine one or more events that will cause creation and communication
`
`of a notification relating to the status of a mobile vehicle in relation to a
`
`location” (emphasis added); and
`
`b.
`
`Receiving a customer’s delivery address meets the limitation of “one or
`
`more events relating to the status of a vehicle” as it is “indicative of a
`
`location or region that the vehicle achieves during travel” (emphasis
`
`added).
`
`97.
`
`On information and belief, Shipping & Transit willfully misreads and
`
`intentionally misrepresents the scope of the ’359 patent in order to claim infringement by
`
`products and services that it knows are not covered by its claims so that it may extract nuisance
`
`value settlements.
`
`4.
`
`Alleged functionality of Cugle’s System and what would have been
`discovered by a reasonable investigation, relating to the ’359 patent
`
`98.
`
`Contrary to Shipping & Transit’s allegations, a reasonable investigation would
`
`have shown that the accused “system” does not notify customers “when the shipment is picked
`
`up by a courier (vehicle).” A reasonable investigation would have shown that the only emails
`
`sent are those that confirm the placement of an order and provide a tracking number, both of
`
`which are in plain text.
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`5.
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`Allegations Regarding Infringement of the ’299 Patent
`
`99.
`
`In the Demand Letter, Shipping & Transit accused Triple7 and Cugle’s Website
`
`of infringing Claim 79 of the ’299 patent.
`
`100. Claim 79 of the ’299 patent claims as follows:
`
`79. A system, comprising:
`
`means for maintaining delivery information identifying a plurality of stop
`locations;
`
`means for monitoring travel data associated with a vehicle in relation to
`the delivery information;
`
`means for, when the vehicle approaches, is at, or leaves a stop location:
`
`determining a subsequent stop location in the delivery information;
`
`determining user defined preferences data associated with the stop
`location, the user defined preferences data including a distance
`between the vehicle and the subsequent stop that corresponds to
`when the party wishes to receive the communication; and
`
`sending a communication to a party associated with the subsequent
`stop location in accordance with the user defined preferences data
`to notify the party of impending arrival at the subsequent stop
`location.
`
`101.
`
`In a previous litigation, a Special Master construed the term “impending arrival”
`
`of the related U.S. Patent 6,748,318 to mean “when a vehicle is on an approach to a stop and has
`
`not yet arrived at a stop.” See Exhibit P, at 22.
`
`102. The Special Master rejected ArrivalStar’s proposed construction that would allow
`
`messages to be sent long before the vehicle arrived at a stop location. Id. at 24-25.
`
`103. Shipping & Transit’s allegations of infringement of Claim 79 are baseless.
`
`104. For example, Shipping & Transit alleges that:
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`a.
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`Different users’ delivery addresses meet the limitation of a “plurality of
`
`stop locations”;
`
`b.
`
`The delivery of packages to different customers’ addresses meets the
`
`limitation of “means for, when a vehicle approaches, is at, or leaves a stop
`
`location: determining a subsequent stop location in the delivery
`
`information” (emphasis added);
`
`c.
`
`A shipment notification and associated delivery address meets the
`
`limitation of a “user defined preferences data including a distance between
`
`the vehicle and the subsequent stop that corresponds to when the party
`
`wishes to receive the communication”; and
`
`d.
`
`A shipment notification and associated delivery address also meets the
`
`limitation of “sending a communication to a party associated with the
`
`subsequent stop location in accordance with the user defined preferences
`
`data to notify the party of impending arrival at the subsequent stop
`
`location.”
`
`105. On information and belief, Shipping & Transit willfully misreads and
`
`intentionally misrepresents the scope of the ’299 patent in order to claim infringement by
`
`products and services that it knows are not covered by its claims so that it may extract nuisance
`
`value settlements.
`
`6.
`
`Alleged functionality of Cugle’s System and what would have been
`discovered by a reasonable investigation, relating to the ’299 patent
`
`106. Contrary to Shipping & Transit’s allegations, a reasonable investigation would
`
`have shown that the accused “system” does not “monitor[] shipments by vehicles picking up, in
`
`transit and delivering products to customer addresses.” A reasonable investigation would have
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`shown that the accused “system” does not provide this fun