McDermott
`Will&Emery
`
`Boston Brussels Chicago DOsseldorf London Los Angeles Miami Munich
`
`New Yor1< Orange County Rome San Diego Silicon Valley Washington, D.C.
`
`C8l 0~-315'
`
`;)0Cii~"'
`"tJMSffi
`
`May 15,2006
`
`VIA MESSENGER
`
`The Honorable Marilyn Abbott
`Secretary
`U.S. International Trade Commission
`500 E Street, S.W.
`Washington, D.C. 20436
`
`.!.2.N.::..~ .. tf.t.i.: ..
`
`Office of the
`Secrelt~tV
`lnt'l Trade Commission
`
`Mark G. Davis
`Attorney at Law
`madavis@mwe.com
`202.756.8364
`
`0
`C-rJ
`c..nCJ
`
`V"\
`
`CP.
`V"\
`00
`
`•
`7 !::J
`... -<
`
`Re:
`
`Certain Portable Digital Media Players, Components Thereof, and Products
`Containing Same
`
`Dear Secretary Abbott:
`
`Enclosed for filing on behalf of Complainants Creative Labs, Inc. and Creative Technology Ltd.
`(collectively "Complainants") are the following documents in support of Complainants' request
`that the Commission commence an investigation pursuant to Section 337 of the Tariff Act of
`1930, as amended. A separate request for confidential treatment of Confidential Exhibit 8 is
`included with this filing.
`
`Accordingly, Complainants submit the following documents for filing:
`
`1.
`
`2.
`
`3.
`
`4.
`
`An original and twelve (12) copies of the verified Complaint and an original and
`six (6) copies of the accompanying exhibits, with Confidential Exhibit 8
`segregated from the other material submitted (original and (1) copy unbound,
`without tabs). (Rules 201.6(c), 210.4(f)(3)(i), and 210.8(a));
`
`One (1) additional copy ofboth the Complaint and accompanying non(cid:173)
`confidential exhibits for service upon the proposed respondent (Rules
`210.4(f)(3)(i), 210.8(a) and 210.11(a));
`
`One (1) additional copy ()fthe Confidential Exhibit 8 for service upon the
`proposed respondent;
`
`Certified copies ofUnited States Patent No. 6,928,433 ("the '433 patent"),
`included as Exhibit 1 in the original Complaint, and copies thereof included as
`Exhibit 1 in all copies of the Complaint;
`
`U.S. practice conducted through McDermott Will & Emery LLP.
`
`600 Thirteenth Street, N.W. Washington, D.C. 20005·3096 Telephone: 202.756.8000 Facsimile: 202.756.8087 www.mwe.com
`
`1
`
`

`

`The Honorable Marilyn Abbott
`Page2
`
`5.
`
`6.
`
`7.
`
`8.
`
`9.
`
`10.
`
`11.
`
`Certified copies of the assignments involving the '433 patent included as Exhibit
`2 in the original Complaint, and copies thereof included as Exhibits 2 in all copies
`of the Complaint;
`
`Certified copy and three (3) copies thereof of the prosecution history of the '433
`patent included as Appendix A (Rule 210.12(c)(2));
`
`Four (4) copies of each reference document mentioned in the prosecution history
`ofthe application leading to the issuance of the '433 patent included as Appendix
`B;
`
`One (1) Creative's Zen Vision: M™ portable MP3 player (in box with original
`packaging) as Appendix C;
`
`One (1) Apple iPod (in box with original packaging) as Appendix D;
`
`One (1) Apple iPod Nano (in box with original packaging) as Appendix E; and
`
`A notarized letter and certification pursuant to Commission Rules 20 1.6(b) and
`21 0.5( d) requesting confidential treatment of Confidential Exhibit 8.
`
`Thank you for your attention to this matter.
`
`Respectfully submitted,
`
`~~OtJ------,;
`
`MGD/ta
`
`Enclosures
`WDC99 1229636-1.065985.0014
`
`2
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`In the Matter of
`
`CERTAIN PORTABLE DIGITAL
`MEDIA PLAYERS, COMPONENTS
`THEREOF, AND PRODUCTS
`CONTAINING SAME
`
`Investigation No. 337-TA-__ _ _
`
`COMPLAINT UNDER SECTION 337 OF THE TARIFF ACT OF 1930, AS AMENDED
`
`COMPLAINANTS
`
`PROPOSED RESPONDENT
`
`Apple Computer, Inc.
`1 Infinite Loop
`Cupertino, CA 95014
`Telephone: (408) 996-1010
`
`Creative Labs, Inc.
`1901 McCarthy Boulevard
`Milpitas, CA 95035
`Telephone: ( 408) 428-6600
`Facsimile: (408) 428-6611
`
`Creative Technology Ltd.
`31 International Business Park
`Creative Resource
`Singapore 609921
`Telephone: 65-6895-4000
`Facsimile: 65-6895-4999
`
`COUNSEL FOR COMPLAINANTS
`
`Mark G. Davis
`John R. Fuisz
`Stephen K. Shahida
`McDERMOTT WILL & EMERY LLP
`600 Thirteenth Street, N. W.
`Washington, DC 20005
`Telephone: (202) 756-8000
`Facsimile: (202) 756-8087
`
`Terrence P. McMahon
`Lucy H. Koh
`Catherine Shiang
`McDERMOTT WILL & EMERY LLP
`3150 Porter Dr.
`Palo Alto, CA 94304-1212
`Telephone: (650) 813-5000
`Facsimile: (650) 813-5100
`
`3
`
`

`

`TABLE OF CONTENTS
`
`PAGE
`
`I.
`
`INTRODUCTION ............................................................................................................. 1
`
`II.
`
`COMPLAINANTS ............................................................................................................ 2
`
`III.
`
`PROPOSED RESPONDENT ............................................................................................ 2
`
`IV.
`
`THE TECHNOLOGY AND PRODUCTS AT ISSUE ..................................................... 3
`
`V.
`
`THE PATENT-IN-SUIT AND NON-TECHNICAL DESCRIPTION OF THE
`INVENTION ...................................................................................................................... 6
`A.
`
`Overview and Ownership of the Asserted Patent .................................................. 6
`
`B.
`
`The '433 Patent ...................................................................................................... 6
`
`1.
`
`2.
`
`Identification of the '433 Patent and Asserted Claims .............................. 6
`
`Non-Technical Description of' 433 Patent ................................................ 7
`
`Foreign Counterparts to the Asserted Patent ......................................................... 7
`
`Licenses .................................................................................................................. 7
`
`C.
`
`D.
`
`VI.
`
`UNLAWFUL AND UNFAIR ACTS OF RESPONDENT -PATENT
`INFRINGEMENT .............................................................................................................. 7
`
`A.
`
`B.
`
`C.
`
`Direct Infringement ................................................................................................ 8
`
`Contributory Infringement ..................................................................................... 8
`
`Inducement of Infringement .................................................................................. 8
`
`VII.
`
`SPECIFIC INSTANCE OF UNFAIR IMPORTATION AND SALE .............................. 9
`
`VIII. HARMONIZED TARIFF SCHEDULE ITEM NUMBERS ............................................. 9
`
`IX.
`
`RELATED LITIGATION ................................................................................................. 9
`
`X.
`
`THE DOMESTIC INDUSTRY ......................................................................................... 9
`
`A.
`
`B.
`
`United States Investments in Plant and Equipment, Labor and Capital .............. 10
`
`Representative Claim Chart for the Creative Zen Vision:M™ Portable
`MP3 player ........................................................................................................... 1 0
`
`XI.
`
`RELIEF REQUESTED .................................................................................................... 11
`
`-1-
`
`4
`
`

`

`I.
`
`INTRODUCTION
`
`1.
`
`This Complaint is filed by Creative Technology Ltd. and its wholly owned
`
`subsidiary Creative Labs, Inc. (collectively "Creative") under Section 337 of the Tariff Act of
`
`1930, as amended, 19 U.S.C. § 1337, based on the unlawful importation into the United States,
`
`the sale for importation, and/or the sale within the United States after importation, by
`
`manufacturers, importers, or consignees of portable digital media players that use the claimed
`
`method that infringe claims 2, 3, 4, 5, 7, 11, 12, 13, 15 and 16 of United States Letters Patent No.
`
`6,928,433 ("the '433 Patent" or "Asserted Patent").
`
`2.
`
`The proposed Respondent is Apple Computer, Inc. ("Apple"). Upon information
`
`and belief, Apple manufactures, sells for importation, imports and/or sells after importation
`
`portable digital media players configured for use in ways that infringe the claimed methods.
`
`3.
`
`4.
`
`A certified copy of the Asserted Patent is attached as Exhibit 1.
`
`Creative Technology Ltd. owns all right, title, and interest in the Asserted Patent.
`
`A certified copy ofthe recorded assignments for the Asserted Patent is attached as Exhibit 2. 1
`
`5.
`
`An industry as required by 19 U.S.C. § 1337(a)(2) and (3) exists in the United
`
`States relating to the technology protected by the Asserted Patent.
`
`6.
`
`Creative seeks as relief a permanent exclusion order barring from entry into the
`
`United States infringing portable digital media players, components thereof, and products
`
`containing same. Creative also seeks as relief a cease and desist order prohibiting importation,
`
`sale after importation, marketing, advertising, demonstrating, warehousing inventory for
`
`distribution, offering for sale, selling, distributing, licensing, or use of infringing portable digital
`
`media players.
`
`-1-
`
`5
`
`

`

`II.
`
`COMPLAINANTS
`
`7.
`
`Creative Technology Ltd. is a public company organized under the laws of
`
`Singapore, with its principal place of business located at 31 International Business Park, Creative
`
`Resource, Singapore 609921. Creative Technology Ltd. is listed on the NASDAQ Stock
`
`Exchange under the symbol CREAF. Creative Labs, Inc. is a wholly owned subsidiary of
`
`Creative Technology Ltd., and is incorporated under the laws of California. Creative Labs, Inc.
`
`has its primary location at 1901 McCarthy Boulevard in Milpitas, California where operations
`
`include sales, marketing, product development, testing and compliance. Creative Labs, Inc. also
`
`has facilities in Stillwater, Oklahoma which is Creative's customer support and product testing
`
`center in the United States; and in Fremont, California, which is an operations and distribution
`
`center. Creative's primary research and development in the United States is conducted at
`
`Creative Advanced Technology Center in Scotts Valley, California, under the corporate name of
`
`Silicon Engineering, Inc., d.b.a. Creative Advanced Technology Center, a wholly owned
`
`subsidiary of Creative Technology Ltd. Creative Advanced Technology Center also has a
`
`satellite office in Boulder, Colorado.
`
`III.
`
`PROPOSED RESPONDENT
`
`8.
`
`On information and belief, proposed respondent Apple is incorporated in
`
`California with a principal place of business located at 1 Infinite Loop, Cupertino, CA 95014.
`
`Exhibit 3. On information and belief, Apple has manufacturing sites in Europe, Japan, Canada
`
`and the Asia Pacific region. Exhibit 3.
`
`1 Creative has been informed by the PTO that a Certificate of Correction adding David Bristow as a co-inventor will
`issue shortly.
`
`-2-
`
`6
`
`

`

`IV.
`
`THE TECHNOLOGY AND PRODUCTS AT ISSUE
`
`9.
`
`Creative was one of the first companies to invest in the research, development and
`
`commercialization of portable digital media players, commonly referred to as MP3 players.
`
`Creative's first digital media players used flash memory as the storage medium. One drawback
`
`of these players was that the storage capacity of flash memory was limited at that time to an hour
`
`or two 0f music. Creative envisioned the market potential for significantly higher capacity
`
`portable digital media players and began development of the NOMAD® Jukebox using a high
`
`capacity hard drive as the storage medium. The number of songs that could be stored on this
`
`portable digital media player was dramatically greater than the flash based players -
`
`up to 1000
`
`songs. However, the large number of tracks/songs presented a significant and pressing challenge
`
`-
`
`how to conveniently organize and access the ever growing number of songs stored on these
`
`devices in view of their small display screens and limited controls.
`
`10.
`
`Excited by the market potential and need for a user interface for organizing,
`
`navigating and accessing music on portable digital players, Creative seized the opportunity to
`
`invent a solution- a way to manage a large amount of music in a manner that allows end users
`
`to access songs in a logical and user-friendly manner through sequential steps displayed on the
`
`small screen of a player. After months of ongoing work and development, a team of Creative's
`
`engineers in Scotts Valley, California invented a user-friendly interface that simplified
`
`navigation on portable digital media players. This now-patented invention is directed to methods
`
`of accessing media tracks (e.g. music) stored on a portable digital media player by navigating
`
`through a hierarchical categorization such as artist, artist name and song title or genre, genre type
`
`and song title.
`
`11.
`
`Eager to market and benefit from the invention, Creative announced its
`
`anticipated release of the NOMAD Jukebox and presented the first prototype devices at the
`
`-3-
`
`7
`
`

`

`Consumer Electronics Show (CES) in January, 2000. With a 6GB storage capacity, the Creative
`
`NOMAD Jukebox could store more than 100 hours of digital media and up to 1000 songs. More
`
`importantly, the NOMAD Jukebox used the revolutionary accessing methods claimed in the '433
`
`Patent to provide users with a convenient interface for managing and accessing all those songs.
`
`The NOMAD Jukebox and the user interface encompassed by the '433 Patent set the standard
`
`for this new industry of portable digital p~ayers.
`
`12.
`
`On January 16, 2001, Creative announced that it had already shipped 100,000
`
`units of the NOMAD Jukebox portable digital media player. By 2006, Creative's portable digital
`
`media players featuring its patented user interface had won numerous prestigious awards
`
`worldwide, including: The "Best of CES" awards in 2004, 2005 and 2006 and the overall "Best
`
`in Show" award at CES in 2006; Best of Show awards in each ofthe first two, 2004 and 2005,
`
`DigitalLife consumer shows; Editor's Choice or other top editorial awards from PC Magazine,
`
`PC Gamer, Laptop, Maximum PC, PC World, Computer Shopper, CNET.com, Sound & Vision
`
`magazine and many others.
`
`13.
`
`Creative's success and leadership in providing portable digital media players for
`
`Apple users did not go unnoticed. On January 9, 2001, Apple released an updated version of its
`
`Macintosh Computers and iTunes software that supported Creative's NOMAD Jukebox that
`
`practiced the '433 Patent. In order to integrate iTunes with Creative's products and to facilitate
`
`this interface, Creative and Apple executed a Driver Code License and Distribution Agreement,
`
`granting Apple a license to Creative's driver source code. In January 2001, Steve Jobs, the co(cid:173)
`
`founder and CEO of Apple, approached a Creative employee, at the Mac World tradeshow to
`
`extol the virtues of the NOMAD Jukebox. They then discussed a possible meeting between
`
`Creative and Apple. Mr. Jobs indicated that Apple wanted a smaller version of the NOMAD
`
`Jukebox digital music player.
`
`-4-
`
`8
`
`

`

`14.
`
`Shortly thereafter, on or about February 8, 2001, Creative met with Apple
`
`representatives, including Steve Jobs, to further explore ways in which the companies could
`
`work together. Creative showed Apple several prototype portable digital media players that
`
`showed the patented interface.
`
`15.
`
`Despite initially leading Creative to believe that Apple and Creative could explore
`
`joint business opportunities, Apple abruptly indicated that there was not en?ugh financial room
`
`in the portable digital media player market for two companies, with margins stacked one on top
`
`of the other, and therefore proposed that Creative license its technology to Apple. Apple further
`
`proposed that Creative spin off its portable digital media player business into a separate company
`
`and that Apple would then invest in that entity. Creative declined the offer.
`
`16.
`
`Then on October 23, 2001, Apple announced the introduction of its first iPod.
`
`Apple, in its press release, stated that it "has applied its legendary expertise in human interface
`
`engineering to make iPod the easiest to use digital device ever." Apple further touted the iPod's
`
`capability to access a huge collection of music by selecting and clicking on play lists, artists or
`
`songs.
`
`17.
`
`Apple and others acting on its behalf manufacture, sell for importation, import
`
`and sell after importation portable digital media players, such as the iPod and iPod Nano that
`
`infringe the Asserted Patent. Exhibit 4. As set forth in Apple's 2005 FormlO-K [Annual Report]
`
`filed with the SEC, "final assembly of substantially all of the Company's portable products
`
`including ... iPods are performed by third-party vendors in China." Exhibit 3. On information
`
`and belief, in addition to operating www.apple.com and 1-800-My-Apple, Apple has 116 retail
`
`stores in the United States that offer for sale or sell infringing portable digital media players. In
`
`addition, on information and belief, Apple resellers offer for sale, sell for importation or sell after
`
`importation infringing portable digital media players. Exhibit 3.
`
`-5-
`
`9
`
`

`

`18.
`
`The Accused products include at least the iPod (MA002LLI A (30GB white),
`
`MA146LLIA (30GB black), MA003LLIA (60GB white), and MA147LLIA (60GB black)), the
`
`iPod Nano (MA350LLIA (1GB white), MA352LLIA (1GB black), MA004LLIA (2GB white),
`
`MA099LLIA (2GB black), MA005LLIA (4GB white), and MA107LLIA (4GB black)), as well
`
`as other portable digital media players sold by or under license from Apple. See
`
`www.apple.com\itunes\.
`
`V.
`
`THE PATENT -IN-SUIT AND NON-TECHNICAL DESCRIPTION OF THE
`INVENTION
`
`A.
`
`Overview and Ownership of the Asserted Patent
`
`19.
`
`Creative Technology Ltd. owns by assignment the entire right, title, and interest
`
`in and to the Asserted Patent. Exhibit 2.
`
`20.
`
`Pursuant to Commission Rule 210.12(c), this Complaint includes a certified copy
`
`and three copies thereof of the prosecution histories of the Asserted Patent. See Appendix A for
`
`the prosecution history ofthe '433 Patent. Pursuant to Commission Rule 210.12(c), this
`
`Complaint includes four copies of each reference mentioned in the Asserted Patent and/or its
`
`prosecution history. Appendix B.
`
`B.
`
`The '433 Patent
`
`1.
`
`Identification of the '433 Patent and Asserted Claims
`
`21.
`
`United States Letters Patent No. 6,928,433 entitled "Automatic Hierarchical
`
`Categorization of Music by Metadata" issued on August 9, 2005. The '433 Patent expires on
`
`November 24, 2021 and is based on United States patent application No. 09/755,723 filed on
`
`January 5, 2001.
`
`22.
`
`The '433 Patent has one (1) independent claim and fifteen (15) dependent claims.
`
`-6-
`
`10
`
`

`

`2.
`
`Non-Technical Description of '433 Patent.
`
`23.
`
`The Asserted Patent claims various methods for accessing different types of data
`
`(such as music or video files) on devices such as a portable digital media player.
`
`24.
`
`To permit ease of use, the claimed methods utilize data about each music file,
`
`referred to as metadata. Metadata can include information about the artist, album, song name,
`
`genre, etc. associated with each track. A hierarchical categorization is created that has at least
`
`three levels: category, subcategory and item. The songs are populated throughout the branches
`
`of the hierarchy using the tracks' associated metadata such that an individual song can be
`
`reached through different routes. Access is provided through a user-friendly interface that has
`
`three screens which are displayed sequentially.
`
`25.
`
`By utilizing the metadata and combining a set of display screens, the claimed
`
`methods allow a user to navigate to individual songs and to play or add songs, or groups of
`
`songs, to play lists. Likewise, if the user desires to play a particular song or list of songs, the
`
`hierarchical categorizations can be used to locate and select the song or songs to be played.
`
`C.
`
`26.
`
`Foreign Counterparts to the Asserted Patent
`
`There are no foreign patents, foreign patent applications, or foreign patent
`
`applications that have been denied that correspond to the Asserted Patent.
`
`D.
`
`27.
`
`Licenses
`
`The Asserted Patent has not been licensed.
`
`VI.
`
`UNLAWFUL AND UNFAIR ACTS OF RESPONDENT-PATENT
`INFRINGEMENT
`
`28.
`
`On information and belief, portable digital media players are sold for importation,
`
`imported, and sold after importation in the United States by or on behalf of Apple under at least
`
`the brand names iPod and iPod Nano. On information and belief, these products infringe claims
`
`2, 3, 4, 5, 7, 11, 12, 13, 15 and 16 ofthe '433 Patent.
`
`-7-
`
`11
`
`

`

`29.
`
`A chart comparing representative claim 5 of the '433 Patent to Apple's iPod Nano
`
`is attached as Exhibit 4.
`
`A.
`
`Direct Infringement
`
`30.
`
`Apple directly infringes Creative's '433 Patent by practicing the claimed methods
`
`of the '433 Patent through activities such as use, testing, and product support of the accused
`
`products.
`
`B.
`
`Contributory Infringement
`
`31.
`
`Apple's activities with respect to the accused devices also contribute to the direct
`
`infringement of Creative's '433 Patent in violation of35 U.S.C. § 271(c). Apple knows ofthe
`
`'433 Patent through actual notice provided by Creative.
`
`32.
`
`The iPods and iPod Nanos sold by Apple are specifically configured to access and
`
`display music loaded by the user in ways that infringe the Asserted Patent. The iPods and iPod
`
`Nanos are not staple articles of commerce and Apple knows or should know that these players
`
`have no substantial non-infringing uses.
`
`C.
`
`Inducement of Infringement
`
`33.
`
`Apple also actively and knowingly aids and abets the direct infringement of
`
`Creative's '433 Patent by Apple's customers, constituting active inducement to infringe under 35
`u.s.c. § 271(b).
`
`34.
`
`Apple induces infringement of the method claims of the '433 Patent by actively
`
`inducing its customers in the United States to operate iPods and iPod Nanos in direct
`
`infringement of the asserted claims. For example, the operating manual that accompanies iPod
`
`and iPod Nano instructs and directs the purchaser on how to use the hierarchical categorization
`
`of music as claimed in the '433 Patent. See, e.g., Exhibit 5 (iPod User Manual), Exhibit 6
`
`(iPod Nano User Manual).
`
`-8-
`
`12
`
`

`

`35.
`
`Apple engages in these unlawful acts despite its actual knowledge of the '433
`
`Patent.
`
`VII. SPECIFIC INSTANCE OF UNFAIR IMPORTATION AND SALE
`
`36.
`
`On information and belief, Apple imports, sells for importation into the United
`
`States, and/or sells within the United States after importation, portable digital media players that
`
`infringe the asserted claims ofthe '433 Patent. Exemplary products are the iPod products,
`
`including the iPod and iPod Nano.
`
`37.
`
`As indicated above, Apple's most recent 10-K Report states that substantially all
`
`of its iPods are assembled in China. Exhibit 3. Similarly, Exhibit 7 shows the packaging of an
`
`iPod purchased in the United States from Apple through its www.apple.com web site. Exhibit 7
`
`shows that the iPod was assembled in China. Included with the device is an instructional manual
`
`directing the user on use of the product. Exhibits 5 and 6. In addition, Apple directs the user to
`
`consult www.apple.com for additional information concerning use of the product. Exhibits 5 and
`
`6.
`
`VIII. HARMONIZED TARIFF SCHEDULE ITEM NUMBERS
`
`38.
`
`On information and belief, the infringing processors, processing systems, and
`
`products containing same have been imported into the United States under, at a minimum,
`
`section 8519 and its subsections ofthe United States Harmonized Tariff Schedule.
`
`IX.
`
`RELATED LITIGATION
`
`39.
`
`There is no related litigation involving the Asserted Patent at this time. Creative
`
`will be filing a concurrent district court action, however.
`
`X.
`
`THE DOMESTIC INDUSTRY
`
`40.
`
`A domestic industry exists as defined under 19 U.S.C. § 1337(a)(3)(A), (B), and
`
`(C) comprised of investment in employment ofland, labor, and capital devoted to the
`
`-9-
`
`13
`
`

`

`exploitation of the patented technology through activities such as research and development,
`
`engineering, and support of products that practice the Asserted Patent.
`
`A.
`
`United States Investments in Plant and Equipment, Labor and Capital
`
`41.
`
`Creative has made substantial investments in the United States in plants,
`
`equipment, labor and capital, both directly and through its wholly owned subsidiaries, Creative
`
`Labs, Inc. and Creative Advanced Technology Center, in products that practice the claimed
`
`invention. Although the products themselves are made abroad, Creative's investments in the
`
`United States devoted to the patented technology include the following facilities that provide
`
`development and/or support for products that practice the patent: Creative Advanced Technology
`
`Center in Scotts Valley, California and Boulder, Colorado, and Creative Labs, Inc., with
`
`facilities in Milpitas and Fremont, California, and in Stillwater, Oklahoma. Creative Advanced
`
`Technology Center is a research and development center where the patented technology was
`
`invented and where Creative researches ways to improve products that practice the '433 Patent.
`
`The Stillwater facility provides customer support with other testing and refurbishing services for
`
`portable digital media players that practice the '433 Patent. The Milpitas location provides
`
`additional product development and testing, including regulatory compliance testing and
`
`compatibility testing. Finally, the Fremont facility provides product servicing and quality
`
`assurance for portable digital media players that practice the '433 Patent. These investments are
`
`itemized in Confidential Exhibit 8.
`
`B.
`
`Representative Claim Chart for the Creative Zen Vision:MTM Portable MP3
`player
`
`42.
`
`Exhibit 9 is a list of Creative products that practice one or more ofthe asserted
`
`claims. Exhibit 10 is an exemplary claim chart showing how Creative's Zen Vision:M™
`
`portable MP3 player practices at least claim 5 of the '433 Patent.
`
`-10-
`
`14
`
`

`

`XI.
`
`RELIEF REQUESTED
`
`43. WHEREFORE, by reason of the foregoing, Complainants Creative Technology
`
`Ltd. and Creative Labs, Inc. respectfully request that the United States International Trade
`
`Commission:
`
`(a)
`
`Institute an immediate investigation, pursuant to Section 337 of the Tariff
`
`Act of 1930, as amended, 19 U.S.C. § 1337(a)(1)(B)(i) and (b)(1), with respect to
`
`violations of Section 3 3 7 based upon the importation, sale for importation, and sale after
`
`importation, into the United States of all Apple products or products made on behalf of
`
`Apple that infringe one or more of the asserted claims of Creative's United States Letters
`
`Patent No. 6,928,433;
`
`(b)
`
`Schedule and conduct a hearing on said unlawful acts and, following said
`
`hearing;
`
`(c)
`
`Issue a permanent exclusion order pursuant to 19 U.S.C. § 1337(d)(1)
`
`barring from entry into the United States all products made by or on behalf of Apple, that
`
`infringe one or more asserted claims of Creative's United States Letters Patent No.
`
`6,928,433;
`
`(d)
`
`Issue permanent cease and desist orders, pursuant to 19 U.S.C. § 1337(f),
`
`directing Apple and others acting on its behalf, to cease and desist from importing,
`
`marketing, advertising, demonstrating, warehousing inventory for distribution, offering
`
`for sale, selling, distributing, licensing, or using portable digital media players that
`
`infringe one or more asserted claims of Creative's United States Letters Patent No.
`
`6,928,433; and
`
`-11-
`
`15
`
`

`

`(e)
`
`Grant such other and further relief as the Commission deems just and
`
`proper based on the facts determined by the investigation and the authority of the
`
`Commission.
`
`-12-
`
`16
`
`

`

`Date: May 15,2006
`
`Respectfully Submitted,
`
`WDC99 1208799-8.065985.0014
`
`John R. Fuisz
`Stephen K. Shahida
`McDERMOTT WILL & EMERY LLP
`600 Thirteenth Street, N. W.
`Washington, DC 20005
`· Telephone: (202) 756-8000
`Facsimile: (202) 756-8087
`
`Terrence P. McMahon
`Lucy H. Koh
`Catherine Shiang
`McDERMOTT WILL & EMERY LLP
`3150 Porter Dr.
`Palo Alto, CA 94304-1212
`Telephone: 650.813.5000
`Facsimile: 650.813.5100
`
`Counsel for Complainants
`Creative Technology Ltd. and
`Creative Labs, Inc.
`
`-13-
`
`17
`
`

`

`VERIFICATION OF COMPLAINT
`
`I, Craig McHugh, declare, in accordance with 19 C.P.R.§§ 210.4 and 210.12(a), under
`
`penalty of perjury, that the following statements are true:
`
`1.
`
`I am currently the President of Creative Labs, Inc., and am duly authorized to sign
`
`this Complaint;
`
`2.
`
`3.
`
`I have read the foregoing Complaint;
`
`To the best of my knowledge, information, and belief, based upon reasonable
`
`inquiry, the foregoing Complaint is well founded in fact and is warranted by existing law or by a
`
`nonfrivolous argument for the extension, modification, or reversal of existing law or the
`
`establishment of new law;
`
`4.
`
`The allegations and other factual contentions have evidentiary support or are
`
`likely to have evidentiary support after a reasonable opportunity for further investigation or
`
`discovery; and
`
`5.
`
`The foregoing Complaint is not being filed for an improper purpose, such as to
`
`harass or to cause unnecessary delay or needless increase in the cost of litigation.
`
`Executed this ___fJ_Paay of May 2006.
`
`President
`
`WDC991231665-1.065985.0014
`
`18
`
`

`

`TABLE OF EXHIBITS
`
`Exhibit 1:
`
`Public
`
`Certified copy of United States Patent No. 6,928,433
`
`Exhibit 2:
`
`Public
`
`Certified copy of the recorded assignments for the '433 patent
`
`. Reel: 011788 I Frame: 0174 (assignment of Ron Goodman
`and Howard Egan)
`
`. Reel: 015640 I Frame: 0748 (assignment of David Bristow)
`
`Exhibit 3:
`
`Public
`
`Selected Pages From Apple Computer, Inc.'s 2005 Form 10-K
`
`Exhibit 4:
`
`Public
`
`Representative claim chart comparing claim 5 to Apple's iPod
`
`Exhibit 5:
`
`Public
`
`iPod User's Manual
`
`Exhibit 6:
`
`Public
`
`iPod Nano User's Manual
`
`Exhibit 7:
`
`Public
`
`Photographs of iPod and iPod Nano packaging
`
`Exhibit 8:
`
`Confidential
`
`Itemized investments by Creative in the United States
`
`Exhibit 9:
`
`Public
`
`Creative products that practice one or more of the asserted
`claims
`
`Exhibit 10:
`
`Public
`
`Exemplary claim chart comparing claim 5 to Creative's Zen
`Vision:M® portable MP3 player
`
`Exhibit 11:
`
`Public
`
`http://www.apple.com/supportlipod101/anatomy/1/
`
`Exhibit 12
`
`Public
`
`http://www.apple.com/supportlipod101/anatomy/2/
`
`Exhibit 13:
`
`Public
`
`http://www.apple.com/supportlipod/tutorial/ip_gettingstarted_t1
`.html
`
`Exhibit 14:
`
`Public
`
`http://download.info.apple.com/ Apple_ Support_ Area/Manuals/
`hardware/0342141iPodUserGuideMac.PDF
`
`Exhibit 15:
`
`Public
`
`http://\V\V\v.apple.com/support/ipod/tutoriallip _gettingstarted _ t4
`.html
`
`Exhibit 16:
`
`Public
`
`http://www.apple.com/supportlipod/tutorial/ip_gettingstarted_t5
`.html
`
`19
`
`

`

`Exhibit 17:
`
`Public
`
`http://manuals.info.apple.com/en/iPod_User_Guide_(color_disp
`lay).pdf
`
`APPENDICES AND PHYSICAL SAMPLES
`
`App.A
`
`Public
`
`Certified Copy of the prosecution history for U.S. Patent No.
`6,928,433.
`
`App.B
`
`App.C
`
`App.D
`
`App.E
`
`Public
`
`Four copies of each reference mentioned in the '433 patent.
`
`Public I
`Physical
`
`Public I
`Physical
`
`Public I
`Physical
`
`Creative's Zen Vision:M® portable MP3 player (in box with
`packaging)
`
`Apple iPod (in box with packaging)
`
`Apple iPod Nano (in box with packaging)
`
`WDC99 1231692-1.065985.0014
`
`20
`
`