UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`MOBILE TELECOMMUNICATIONS
`TECHNOLOGIES, LLC,
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`
`
`Plaintiff,
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`Civil Action No. 2:16-cv-0002
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`JURY TRIAL REQUESTED
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`§
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`§
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`COMPLAINT
`
`v.
`
`GOOGLE INC.
`
`
`
`
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`Defendant.
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`
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`Plaintiff Mobile Telecommunications Technologies, LLC (“MTel” or “Plaintiff”) files
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`this Complaint against Google Inc. (“Google”) for infringement of U.S. Patent Nos. 5,809,428
`
`(the “’428 Patent”), 5,754,946 (the “’946 Patent”), 5,581,804 (the “’804 Patent”), and 5,894,506
`
`(the “’506 Patent”) pursuant to 35 U.S.C. §271 and alleges as follows:
`
`THE PARTIES
`
`1.
`
`Plaintiff MTel is a Delaware limited liability company with its principal place of
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`business at 1720 Lakepointe Drive, Suite 100, Lewisville, Texas 75057.
`
`2.
`
`MTel is a wholly owned subsidiary of United Wireless Holdings, Inc. (“United
`
`Wireless”). In 2008, United Wireless, through another of its wholly owned subsidiaries,
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`Velocita Wireless, LLC, purchased the SkyTel wireless network, including assets related to
`
`SkyTel’s more than twenty-year history as a wireless data company. Velocita Wireless, LLC,
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`continued to operate the SkyTel wireless data network after the acquisition. As a result of that
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`transaction, United Wireless gained ownership and control over the business, operations and
`
`intellectual property portfolio, including patents developed by the SkyTel-related entities,
`
`including Mobile Telecommunication Technologies Corp. (“MTel Corp.”). United Wireless
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`subsequently assigned certain patent assets, including the Patents-in-Suit, together with all rights
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`1
`GOOGLE 1012
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`of recovery related to those patent assets, to its wholly owned subsidiary, MTel, which is the
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`licensing division of United Wireless and the plaintiff here.
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`3.
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`MTel Corp. was a pioneer of two-way wireless data communications and in 1995
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`launched the first nationwide two-way wireless data messaging service, dubbed SkyTel 2-Way.
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`Prior to that launch, in 1993, MTel Corp. received a Pioneer Preference award from the Federal
`
`Communications Commission for technological achievement in developing its wireless data
`
`network.
`
`4.
`
`Upon information and belief, Google is a corporation organized and existing
`
`under the laws of the State of Delaware, which has a regular and established place of business in
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`Texas. Google may be served with process through its registered agent, Corporation Service
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`Company d/b/a CSC, 211 East 7th Street, Suite 620, Austin, Texas 78701.
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`JURISDICTION AND VENUE
`
`5.
`
`This action arises under the patent laws of the United States, Title 35 of the
`
`United States Code. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§1331 and
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`1338(a).
`
`6.
`
`Venue lies in this judicial district pursuant to 28 U.S.C. §§1391(b)-(d) and
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`1400(b). Google has transacted business in this district and on information and belief has
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`committed acts of infringement in this District.
`
`7.
`
`This Court has personal jurisdiction over Google under the laws of the State of
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`Texas, including the Texas long-arm statute, TEX. CIV. PRAC. & REM. CODE §17.042. Defendant
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`Google has availed itself of the rights and benefits of this District by conducting business in this
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`jurisdiction, including by promoting products or services, by selling products or services, or
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`offering to sell products or services, for example via the internet, which is accessible to and
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`accessed by residents of this District. Google maintains at least two offices in Texas, including
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`one in Austin, Texas and another in Dallas, Texas and sells and promotes the sales of its products
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`and services in consumer retail locations throughout Texas, including in this District. Google
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`uses or induces others to use its products or services in Texas, including in this District, that
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`infringe the ’428 Patent, the ’946 Patent, ’804 Patent and the ’506 Patent, or knowingly
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`contributes to infringement of the ’428 Patent, the ’946 Patent, ’804 Patent and the ’506 Patent.
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`Thus venue is proper in this District.
`
`THE PATENTS-IN-SUIT
`
`8.
`
`On Tuesday, September 15, 1998, the United States Patent and Trademark
`
`(“USPTO”) duly and legally issued United States Patent No. 5,809,428, titled “Method and
`
`Device for Processing Undelivered Data Messages in a Two-Way Wireless Communications
`
`System,” after a full and fair examination. A true and correct copy of the ’428 Patent is attached
`
`hereto as Exhibit A. Plaintiff is the assignee of all right, title, and interest in and to the
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`’428 Patent and possesses the exclusive right of recovery under the ’428 Patent, including the
`
`exclusive right to recover for past and future infringement of the ’428 Patent. The ’428 Patent is
`
`valid and enforceable.
`
`9.
`
`The ’428 Patent was found valid and infringed at trial against Apple Inc. in this
`
`District.1
`
`10.
`
`The ’428 Patent describes and claims, among other things, methods, systems, and
`
`devices for storing undeliverable messages, such as e-mail messages.
`
`11.
`
`On Tuesday, May 19, 1998, the USPTO duly and legally issued United States
`
`Patent No. 5,754,946 titled “Nationwide Communication System,” after a full and fair
`
`examination. A true and correct copy of the ’946 Patent is attached hereto as Exhibit B. Plaintiff
`
`is the assignee of all right, title and interest in and to the ’946 Patent and possesses the exclusive
`                                                            
`1 Case 2:13-cv-00258-RSP (D.I. 65 Verdict Form) 11/17/14 (Exhibit E).
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`right of recovery under the ’946 Patent, including the exclusive right to recover for past and
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`future infringement of the ’946 Patent.
`
`12.
`
`The ’946 Patent describes and claims, among other things, devices and networks
`
`that provide for the transmission of unreceived portions of a message.
`
`13.
`
`The ’946 Patent is valid and enforceable. The ’946 Patent was found valid and
`
`infringed at trial against Apple Inc. in this District.2
`
`14.
`
`On Tuesday, December 3, 1996, the USPTO duly and legally issued United States
`
`Patent No. 5,581,804 titled “Nationwide Communications System,” after a full and fair
`
`examination. A true and correct copy of the ’804 Patent is attached hereto as Exhibit C. Plaintiff
`
`is the assignee of all right, title and interest in and to the ’804 Patent, including the exclusive
`
`right to recover for past and future infringement of the ’804 Patent. The ’804 Patent is valid and
`
`enforceable.
`
`15.
`
`The ’804 Patent discloses and claims, inter alia, methods and systems for
`
`providing two-way communication of messages between a central network and a mobile unit
`
`over a relatively large area, and more particularly to such methods and systems for
`
`communicating messages which allow for rapid communication of large messages and efficient
`
`use of system resources.
`
`16.
`
`On Tuesday, April 13, 1999, the USPTO duly and legally issued United States
`
`Patent No. 5,894,506 titled “Method and Apparatus for Generating and Communicating
`
`Messages Between Subscribers to an Electronic Messaging Network,” after a full and fair
`
`examination. A true and correct copy of the ’506 Patent is attached hereto as Exhibit D.
`
`Plaintiff is the assignee of all right, title and interest in and to the ’506 Patent, including the
`
`                                                            
`2 Case 2:13-cv-00258-RSP (D.I. 65 Verdict Form) 11/17/14 (Exhibit E).
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`exclusive right to recover for past and future infringement of the ’506 Patent. The ’506 Patent is
`
`valid and enforceable.
`
`17.
`
`18.
`
`The ’506 Patent was found valid at trial against Apple Inc. in this District.3
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`The ’506 Patent discloses and claims, inter alia, an electronic messaging network
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`comprising a network operations center and message terminals, including memory for storing
`
`corresponding files of canned messages and associated message codes, which improves message
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`compression and conserves communications link capacity.
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`INFRINGEMENT OF THE PATENTS-IN-SUIT
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`19.
`
`Plaintiff reincorporates by reference Paragraphs 1 through 18 as though fully
`
`restated herein.
`
`20.
`
`Google, without authorization or license, has been and is now directly infringing,
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`literally or under the doctrine of equivalents, one or more claims of the ’428 Patent, the ’946
`
`Patent, the ’804 Patent, and the ’506 Patent (together, the “Patents-in-Suit”) in violation of 35
`
`U.S.C. §271 as stated below. Google’s infringement has been and will continue to be willful at
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`least since its knowledge of the Patents-in-Suit.
`
`21.
`
`On November 17, 2014, MTel received a favorable jury verdict in Mobile
`
`Telecomms. Techs., LLC v. Apple No. 2:13-CV-258-RSP (E.D. Tex.). See Verdict attached as
`
`Exhibit E. The jury in that case found the features of accused Apple devices infringed some of
`
`the same Patents-in-Suit asserted here. Google’s messaging devices and messaging services on
`
`information and belief contain similar features and perform similar functions as those found to be
`
`infringing in Mobile Telecomms. Techs., LLC v. Apple.
`
`22.
`
`On December 31, 2012, MTel sent Motorola Mobility, Inc. by Certified mail a
`
`letter (Exhibit F) alerting Motorola Mobility, Inc. to patent infringement and offering a patent
`                                                            
`3 Case 2:13-cv-00258-RSP (D.I. 65 Verdict Form) 11/17/14 (Exhibit E).
`
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`license. Motorola Mobility, Inc. responded early the next year. Motorola Mobility, Inc. did not
`
`deny infringement. Google had purchased Motorola Mobility, Inc. in early 2012 and retained it
`
`until October 2014 before selling most of it to the Chinese. Thus, Google owned Motorola
`
`Mobility, Inc. at the time MTel put Google (Motorola Mobility) on notice of its infringement of
`
`an identified claim of an identified patent owned by MTel.
`
`FIRST CLAIM FOR RELIEF
`(INFRINGEMENT OF U.S. PATENT NO. 5,809,428)
`
`23.
`
`Plaintiff MTel reincorporates by reference Paragraphs 1 through 22 as though
`
`fully set forth herein.
`
`24.
`
`Each and every claim of the ’428 Patent is valid and enforceable and each claims
`
`enjoys a statutory presumption of validity separate, apart, and in addition to the statutory
`
`presumption of validity enjoyed by every other of its claims. 35 U.S.C. § 282.
`
`25.
`
`Google, without authorization or license, has been and is now directly infringing,
`
`literally or under the doctrine of equivalents, Claims 1-3 and Claims 8-10 of the ’428 Patent in
`
`violation of 35 U.S.C. §271. Google and all end-users of Google’s networks and software,
`
`including Google’s messaging applications, as well as messaging applications for use on Google
`
`networks, desktop software, mobile messaging software, or mobile operating systems are direct
`
`infringers of the ’428 Patent.
`
`26.
`
`Google and its end users have directly infringed, literally or under the doctrine of
`
`equivalents, and will continue to directly infringe Claims 1-3 and 8-10 of the ’428 Patent by
`
`making, using, selling, offering to sell, or importing into the United States applications and by
`
`offering messaging services “Google Messaging Services.” Google Messaging Services include,
`
`by way of example only, Google Messenger, Google Cloud Messaging (“GCM”), Google Talk,
`
`Google Hangouts, Google Talk Chat and XMPP, GTalkShare, GTalkSMS, GTalkSMS Donate
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`that embody or practice Claims 1-3 or 8-10 of the ’428 Patent.4 These Google Messaging
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`Services are often preinstalled or updated on the mobile devices before delivery to the end-user,
`
`or these Google Messaging Services are provided by or through Google, including by way of
`
`example, through the Google Play Store.
`
`27.
`
`Google and its end users also have directly infringed, literally or under the
`
`doctrine of equivalents, and will continue to directly infringe Claims 1-3 and Claims 8-10 by
`
`providing for use with Google Messaging Services servers or other networking components (e.g.,
`
`XMPP (or similar protocol)-compliant servers or other networking components).
`
`28.
`
`The manufacture, use, sale, offer to sale, or importation of the Google Messaging
`
`Services directly infringes the apparatus Claims 1-3 of the ’428 Patent.
`
`29.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes the use of a network operations center for transmitting and receiving
`
`messages to and from a wireless mobile unit.
`
`30.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes the use of a means for transmitting messages to a mobile unit.
`
`31.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes the use of means for receiving acknowledgment messages from a
`
`mobile unit.
`
`32.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes the use of a means for determining whether an acknowledgment
`
`message is an acknowledgment to a data message or an acknowledgment to a probe message.
`
`                                                            
`4
`See also Alistair Barr, Tech, Wall Street Journal, Dec. 22, 2015, Google Plans New, Smarter
`Messaging App http://www.wsj.com/articles/google-plans-new-smarter-messaging-app-1450816899
`(“Users will be able to text friends or a chatbot that will scour the Web and other sources to answer a
`question.”) (last visited Dec. 23, 2015).
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`33.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes the use of a means for transmitting a probe message to the mobile unit
`
`if, after transmitting a data message to the mobile unit, no data acknowledgment message is
`
`received.
`
`34.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes the use of a means for marking a data message as undelivered.
`
`35.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes the use of a means for storing an undelivered data message if, after
`
`transmitting a probe message to a mobile unit, no probe acknowledgment message is received.
`
`36.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices may include the use of a means for receiving registration messages from a
`
`mobile unit.
`
`37.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices may include the use of a means for automatically transmitting undelivered data
`
`messages to a mobile unit upon receiving a registration message from the mobile unit.
`
`38.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices may include the use of a means for allowing dial-in access to undelivered data
`
`messages by a subscriber to retrieve an undelivered data message.
`
`39.
`
`On information and belief, the operation of Google Messaging Services includes
`
`the processing of data messages that cannot be successfully transmitted from a network
`
`operations center to a wireless mobile unit.
`
`40.
`
`On information and belief, the operation of Google Messaging Services includes
`
`the transmitting of data messages from a network operations center to a mobile unit.
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`41.
`
`On information and belief, the operation of Google Messaging Services includes
`
`receiving at a network operations center a data acknowledgment message from a mobile unit that
`
`acknowledges receipt of the data message sent by the network operations center.
`
`42.
`
`On information and belief, the operation of Google Messaging Services includes
`
`transmitting a probe message from a network operations center to a mobile unit if, after
`
`transmitting a data message to a mobile unit, no data acknowledgment message is received at the
`
`network operations center.
`
`43.
`
`On information and belief, the operation of Google Messaging Services includes
`
`marking at a network operations center a data message as undelivered if, after transmitting a
`
`probe message to a mobile unit, no probe acknowledgment message is received at the network
`
`operations center.
`
`44.
`
`On information and belief, the operation of Google Messaging Services may
`
`include storing at a network operations center an undelivered data message.
`
`45.
`
`On information and belief, the operation of Google Messaging Services may
`
`include transmitting undelivered data messages from a network operations center to a mobile
`
`unit upon receiving at the network operations center a registration message from the mobile unit.
`
`46.
`
`On information and belief, the operation of Google Messaging Services may
`
`include giving users remote access to the stored messages.
`
`47. MTel gave Google actual notice of infringement of an identified patent claim of
`
`an identified MTel patent in 2012. Google has knowledge of the ’428 Patent and acts and will
`
`continue to act with an objectively high likelihood that its actions constitute infringement of that
`
`valid patent. Such infringement demonstrates a deliberate and conscious decision to infringe, or
`
`at least a reckless disregard of MTel’s patent rights, entitling MTel to up to treble damages. The
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`Google Messaging Services have no substantial non-infringing use other than to operate as
`
`claimed in the ’428 Patent.
`
`SECOND CLAIM FOR RELIEF
`(INFRINGEMENT OF U.S. PATENT NO. 5,754,946)
`
`48.
`
`Plaintiff MTel reincorporates by reference Paragraphs 1 through 47 as though
`
`fully set forth herein.
`
`49.
`
`Each and every claim of the ’946 Patent is valid and enforceable and each claim
`
`enjoys a statutory presumption of validity separate, apart, and in addition to the statutory
`
`presumption of validity enjoyed by every other of its claims. 35 U.S.C. §282.
`
`50.
`
`Google, without authorization or license, has been and is now directly infringing,
`
`literally or under the doctrine of equivalents, Claims 1-4 and 7-9 of the ’946 Patent, in violation
`
`of 35 U.S.C. §271.
`
`51.
`
`Google and its end users have directly infringed, literally or under the doctrine of
`
`equivalents, and will continue to directly infringe Claims 1-4 and 7-9 of the ’946 Patent by
`
`making, using, selling, offering to sell, or importing into the United States applications and by
`
`offering messaging services “Google Messaging Services.” Google Messaging Services include,
`
`by way of example only, Google Messenger, Google Cloud Messaging (“GCM”), Google Talk,
`
`Google Hangouts, Google Talk Chat and XMPP, GTalkShare, GTalkSMS, GTalkSMS Donate
`
`that embody or practice Claims 1-4 and 7-9 of the ’946 Patent. These Google Messaging
`
`Services are often preinstalled or updated on the mobile devices before delivery to the end-user,
`
`or these Google Messaging Services are provided by or through Google, including by way of
`
`example, through the Google Play Store.
`
`52.
`
`Google and its end users have directly infringed, literally or under the doctrine of
`
`equivalents, and will continue to directly infringe Claims 1-4 and 7-9 by providing for use with
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`Google Messaging Services servers or other networking components (e.g., XMPP (or similar
`
`protocol)-compliant servers or other networking components).
`
`53.
`
`By way of example only, Google and end users, directly infringe Claims 1-4 and
`
`7-9 of the ’946 Patent in violation of 35 U.S.C. §271, literally or under the doctrine of
`
`equivalents, through use of the aforementioned Google Messaging Services on any of the
`
`following devices and mobile units, including by way of example only:5 all models and versions
`
`of Google’s tablet and mobile devices, Nexus 4, Nexus 5, Nexus 6, Nexus 7, HTC One, HTC
`
`One V, HTC One M8, HTC One E8, HTC One Max, Samsung Galaxy Note 3, Samsung Galaxy
`
`Note 4, Samsung Galaxy S II, Samsung Galaxy S III, Samsung Galaxy S III mini, Samsung
`
`Galaxy S 4, Samsung Galaxy S 4 Mini, Samsung Galaxy S 4 Zoom, Samsung Galaxy S 5,
`
`Samsung Galaxy S 5 Sport, Samsung Galaxy Mega, Samsung Galaxy Mega 2, Samsung Galaxy
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`Alpha, Samsung Galaxy Note Edge, Samsung Galaxy Rugby Pro, Samsung Galaxy Light,
`
`Samsung Galaxy Exhibit, Samsung Galaxy Avant, Samsung Galaxy Note, Samsung Galaxy Tab,
`
`Samsung Galaxy Tab S, Samsung Galaxy Ring, Samsung Galaxy Victory, Kyocera Duraforce,
`
`Kyocera HydroVibe, Kyocera Brigadier, Kyocera Rise, Sonim XP6, HTC Desire, HTC Desire
`
`510, HTC Desire 610, HTC Desire 612, HTC Desire 816, HTC Desire EYE, LG G Vista, LG
`
`G2, LG G3 Vigor, LG G Flex, LG Optimus L90, LG Optimus F3, LG Optimus F3Q, LG
`
`Optimus F6, LG Optimus G Pro, LG Splendor, LG G Pad, LG Lucid 3, LG Enact, LG Spectrum
`
`2, LG Volt, LG Tribute, LG Realm, Virgin Mobile Awe, Virgin Mobile Supreme, Virgin Mobile
`
`Reef, NEC Terrain, Sharp AQUOS Crystal, ZTE ZMAX, Sony Xperia Z, Sony Experia Z3, Sony
`
`Experia Z3v, ALCATEL ONETOUCH Fierce 2, ALCATEL ONETOUCH Evolve 2, ALCATEL
`
`ONETOUCH Shockwave, T-Mobile Prism II, Huawei Ascend, Asus Nexus Player, Google
`                                                            
`5
`This list is not, and is not intended to be, exhaustive. Any wireless device that has the
`capability of operating any of the Google Messaging Services has the potential to be an instrument of
`infringement of Claims 1-4 and 7-9 of the ’946 Patent.
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`Chromecast, G Watch, G Watch R, Gear Live, SmartWatch 3, and Asus ZenWatch. These are
`
`offered merely as exemplary.
`
`54.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes a means for receiving a radio frequency message from the network.
`
`55.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes a display for displaying said message.
`
`56.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes a switch actuatable to specify a portion of the displayed message for
`
`which a user desires retransmission from the communications network.
`
`57.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes a means for transmitting, only upon actuation of a switch, a signal to a
`
`communications network requesting retransmission of a specified portion of a message.
`
`58.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes a means for receiving a specified portion retransmitted from a
`
`communications network and for displaying the received specified portion on a display.
`
`59.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes a means for detecting errors in a received message, the display
`
`including means for highlighting errors when a message is displayed on a display.
`
`60.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes a means for receiving a radio frequency signal from a communication
`
`network including a retransmitted message and an error correcting code.
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`61.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes a means for extracting a corrected message from a radio frequency
`
`signal.
`
`62.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes a signal transmitted by the transmitting means indicating to the
`
`network that the user has read the message.
`
`63.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes the use of a communications network for transmitting radio frequency
`
`signals to a mobile unit.
`
`64.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes receiving radio frequency signals from a mobile unit.
`
`65.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes a mobile unit that has a display.
`
`66.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes a mobile unit that has a switch to specify a portion of a message for
`
`which a user desires retransmission.
`
`67.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes a means for transmitting radio frequency signals containing a message
`
`to a mobile unit.
`
`68.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes a means for receiving, from a mobile unit, radio frequency signals
`
`representing a portion of a message that a user desires to be retransmitted.
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`69.
`
`On information and belief, the operation of Google Messaging Services on
`
`wireless devices includes a means for retransmitting radio frequency signals containing a portion
`
`of a message to a mobile unit.
`
`70.
`
`The use by end users of the Google Messaging Services also directly infringe the
`
`methods of receiving and transmitting messages at a mobile unit as claims in Claims 7-9 the ’946
`
`Patent.
`
`71.
`
`On information and belief, the operation of Google Messaging Services includes
`
`receiving at the mobile unit a radio frequency message.
`
`72.
`
`On information and belief, the operation of Google Messaging Services includes
`
`displaying a message on the mobile unit.
`
`73.
`
`On information and belief, the operation of Google Messaging Services includes
`
`receiving an indication of a portion of a displayed message for which a user desires
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`retransmission.
`
`74.
`
`On information and belief, the operation of Google Messaging Services includes
`
`transmitting upon receipt of an indication, a signal requesting retransmission of an indicated
`
`portion of a message.
`
`75.
`
`On information and belief, the operation of Google Messaging Services includes
`
`receiving a retransmission of an indicated portion of a message.
`
`76.
`
`On information and belief, the operation of Google Messaging Services may
`
`include highlighting errors in a message on a mobile unit.
`
`77. MTel gave Google actual notice of infringement of an identified patent claim of
`
`an identified MTel patent in 2012. Google has knowledge of the ’946 Patent and acts and will
`
`continue to act with an objectively high likelihood that its actions constitute infringement of that
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`valid patent. Such infringement demonstrates a deliberate and conscious decision to infringe, or
`
`at least a reckless disregard of MTel's patent rights, entitling MTel to up to treble damages. The
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`Google Messaging Services have no substantial non-infringing use other than to operate as
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`claimed in the ’946 Patent.
`
`THIRD CLAIM FOR RELIEF
`(INFRINGEMENT OF U.S. PATENT NO. 5,754,804)
`
`78.
`
`Plaintiff reincorporates by reference Paragraphs 1 through 77 as though fully set
`
`forth herein.
`
`79.
`
`Each and every claim of the ’804 Patent is valid and enforceable and each claim
`
`enjoys a statutory presumption of validity separate, apart, and in addition to the statutory
`
`presumption of validity enjoyed by every other of its claims. 35 U.S.C. §282.
`
`80.
`
`Google, without authorization or license, has been and is now directly infringing,
`
`literally or under the doctrine of equivalents, Claims 5-8 and 10 of the ’804 Patent in violation of
`
`35 U.S.C. §271, as stated below.
`
`81.
`
`Google and all end-users of Google’s messaging devices, equipment, products, or
`
`services are direct infringers of the ’804 Patent, literally or under the doctrine of equivalents, and
`
`will continue to directly infringe Claims 5-8 and 10 of the ’804 Patent by making, using, selling,
`
`offering to sell, or importing into the United States applications and by offering messaging
`
`services, “Google Messaging Services.” Google Messaging Services include, by way of
`
`example only, include Google Messenger, Google Cloud Messaging (“GCM”), Google Talk,
`
`Google Hangouts, Google Talk Chat and XMPP, GTalkShare, GTalkSMS, GTalkSMS Donate
`
`that embody or practice the communication method of Claims 5-8 and 10 of the ’804 Patent.
`
`These Google Messaging Services are often preinstalled or updated on the mobile devices before
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`MTEL’S ORIGINAL COMPLAINT AGAINST GOOGLE
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`delivery to the end-user, or these Google Messaging Services are provided by or through Google,
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`including by way of example, through the Google Play Store.
`
`82.
`
`Google and its end users have directly infringed, literally or under the doctrine of
`
`equivalents, and will continue to directly infringe Claims 5-8 and 10 to the communication
`
`method of the ’804 Patent by providing for use with Google Messaging Services servers or other
`
`networking components (e.g., XMPP (or similar protocol)-compliant servers or other networking
`
`components).
`
`83.
`
`On information and belief, the operation of Google Messaging Services includes
`
`controlling a mobile transceiver which may communicate with a communication network
`
`controlled by a computer.
`
`84.
`
`On information and belief, the operation of Google Messaging Services includes a
`
`network including more than one base transmitter for transmitting messages to a mobile
`
`transceiver and base receiver for receiving messages from the mobile transceiver.
`
`85.
`
`On information and belief, the operation of Google Messaging Services includes a
`
`mobile transceiver that is capable of sending registration signals to be received by a base receiver
`
`in a network to allow the network to identify the mobile transceiver’s approximate location
`
`according to the location of the one or more base receivers that received the registration signals
`
`and being capable of sending a message acknowledgment signal when a mobile transceiver
`
`receives a message from the network to indicate successful delivery of the message.
`
`86.
`
`On information and belief, the operation of Google Messaging Services includes a
`
`network using received registration signals to determine a set of base transmitters to transmit a
`
`message to a mobile transceiver.
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`87.
`
`On information and belief, the operation of Google Messaging Services includes
`
`storing in a network a number of registration signals from a mobile transceiver to the network
`
`during a first period of time and the number of messages successfully delivered to the mobile
`
`transceiver by the network during a period of time.
`
`88.
`
`On information and belief, the operation of Google Messaging Services includes
`
`processing a stored number of registration signals and number of messages successfully
`
`delivered to evaluate a likelihood that a registration signal from a mobile transceiver will not be
`
`used by the network to determine a set of base transmitters.
`
`89.
`
`On information and belief, the operation of Google Messaging Services includes
`
`sending a message to a mobile transceiver to disable the mobile transceiver’s capability to
`
`transmit a registration signal if the likelihood exceeds a selected value.
`
`90.
`
`On information and belief, the operation of Google Messaging Services includes
`
`sending a registration signal from a mobile transceiver to a network when the mobile transceiver
`
`crosses zonal boundaries and the mobile transceiver’s capability to transmit registration signals is
`
`enabled.
`
`91.
`
`On information and belief, the operation of Google Messaging Services includes
`
`sending a registration signal from a mobile transceiver to a network when the mobile transceiver
`
`returns to a coverage area of a communication network after being out of range for a period of
`
`time and the mobile transceiver’s capability to transmit registration signals is enabled.
`
`92.
`
`On information and belief, the operation of Google Messaging Services includes
`
`sending a registration signal from the mobile transceiver to the network when power is first
`
`applied to a mobile transceiver and the mobile transceiver’s capability to transmit registration
`
`signals is enabled.
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`93.
`
`On inform