`
`
`
`KONINKLIJKE PHILIPS N.V.,
`U.S. PHILIPS CORPORATION,
`
`
`Plaintiffs,
`
`v.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`
`
`
`
`
`C.A. No. 15-1125-GMS
`
`JURY TRIAL DEMANDED
`
`))))))))))))
`
`
`
`)))))))))))
`
`
`ASUSTEK COMPUTER INC.,
`ASUS COMPUTER INTERNATIONAL,
`
`
`Defendants.
`
`
`
`MICROSOFT CORPORATION,
`
`
`Intervenor-Plaintiff,
`
`v.
`
`
`KONINKLIJKE PHILIPS N.V.,
`U.S. PHILIPS CORPORATION,
`
`
`
`
` Intervenor-Defendants.
`
`MICROSOFT CORPORATION’S COMPLAINT IN INTERVENTION
`
`Pursuant to Rule 24(c) of the Federal Rules of Civil Procedure, Intervenor-Plaintiff
`
`Microsoft Corporation (“Microsoft”) alleges as follows for its Complaint in Intervention against
`
`Plaintiffs and Intervenor-Defendants Koninklijke Philips N.V. and U.S. Philips Corporation
`
`(collectively, “Philips” or “Plaintiffs”):
`
`1.
`
`Microsoft seeks a declaratory judgment of non-infringement pursuant to the
`
`Declaratory Judgment Act, 28 U.S.C. §§ 2201(a) and 2202.
`
`PARTIES
`
`2.
`
`Microsoft is a corporation organized under the laws of the State of Washington,
`
`with its principal place of business at One Microsoft Way, Redmond, Washington 98052.
`
`{01159819;v1 }
`
`
`
`PHILIPS 2006
`Microsoft v. Philips
`IPR2018-00026
`
`
`
`Case 1:15-cv-01125-GMS Document 68 Filed 11/10/16 Page 2 of 10 PageID #: 924
`
`
`3.
`
`Plaintiff and Defendant in Intervention Koninklijke Philips N.V., formerly known
`
`as Koninklijke Philips Electronics N.V., purports to be a corporation organized and existing
`
`under the laws of the Netherlands with its principal place of business at High Tech Campus 5,
`
`5656 AE Eindhoven, the Netherlands.
`
`4.
`
`Plaintiff and Defendant in Intervention U.S. Philips Corporation purports to be a
`
`corporation organized and existing under the laws of Delaware with its principal place of
`
`business at 3000 Minuteman Road, Andover, Massachusetts 01810.
`
`JURISDICTION AND VENUE
`
`5.
`
`This action arises under the patent laws of the United States, 35 U.S.C. §§ 1 et
`
`seq., and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. This Court has subject
`
`matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338(a).
`
`6.
`
`7.
`
`Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) and (c) and 1400.
`
`This Court has personal jurisdiction over Philips due to its filing of the original
`
`and amended Complaints in this action.
`
`FACTUAL BACKGROUND AND MICROSOFT’S INTEREST IN THIS ACTION
`
`8.
`
`Philips filed its original Complaint in this action on December 7, 2015, accusing
`
`ASUSTeK Computer Inc. and ASUS Computer International (collectively, “ASUS”) of selling
`
`smartphones, tablet computers, notebooks, and All-in-One PCs that infringe certain claims of
`
`United States Patent Nos. RE 44,913 (“the ’913 patent”), 6,690,387 (“the ’387 patent”),
`
`7,184,064 (“the ’064 patent”), 7,529,806 (“the ’806 patent”), 5,910,797 (“the ’797 patent”),
`
`6,522,695 (“the ’695 patent”), RE 44,006 (“the ’006 patent”), 8,543,819 (“the ’819 patent”),
`
`6,772,114 (“the ’114 patent”), and RE 43,564 (“the ’564 patent”) (collectively, the “Asserted
`
`Patents”).
`
`{01159819;v1 }
`
`2
`
`
`
`Case 1:15-cv-01125-GMS Document 68 Filed 11/10/16 Page 3 of 10 PageID #: 925
`
`
`9.
`
`ASUS is a customer of Microsoft’s. ASUS sells computer products that
`
`incorporate Microsoft’s Windows Operating System.
`
`10.
`
`On April 11, 2016, Philips filed a First Amended Complaint against ASUS. D.I.
`
`18 (“First Amended Complaint”). In the First Amended Complaint, Philips alleges that either
`
`Koninklijke Philips N.V. or U.S. Philips Corporation is “the assignee and owner” of each of the
`
`Asserted Patents and the sole owner of “the right to sue and recover for any and all infringements”
`
`of each of the Asserted Patents. Id. at ¶¶ 11-20, 38, 54, 72, 85, 101, 110, 119, 128, 145, 154.
`
`11.
`
`On August 26, 2016, Philips served its Initial Infringement Contentions Against
`
`the ASUS Defendants (“Infringement Contentions”) (filed herewith as Exhibit A). The
`
`Infringement Contentions specifically identify numerous Acer devices that run Windows as
`
`allegedly infringing products. See Ex. A, App. K. Additionally, the Infringement Contentions
`
`specifically assert that Windows provides the allegedly infringing functionality for certain
`
`Asserted Patents.
`
`12.
`
`The ’913 patent is entitled “Text entry method and device therefor.” The
`
`Infringement Contentions allege that ASUS infringes claims 1, 3, 4, 5, 8, 9, 12, 13, and 16 of
`
`the ’913 patent both literally and under the doctrine of equivalents. Ex. A at 2; see also id. at
`
`App. A. Philips also alleges induced and contributory infringement of claims 1, 9, and 12 of
`
`the ’913 patent. Id. at 2-3. The Infringement Contentions include allegations specifically
`
`directed to “’913 Windows Accused Products,” which Philips defines as products “preloaded
`
`with Microsoft Windows version 8 or higher.” Id., App. A at 1. The Infringement Contentions
`
`state (see id.) that these accused Windows products are listed in Appendix K, which identifies
`
`more than 65 products that run Windows. The Infringement Contentions also cite to Microsoft
`
`Windows 8 and Windows 10 online documents and Windows 10-related books that refer to
`
`{01159819;v1 }
`
`3
`
`
`
`Case 1:15-cv-01125-GMS Document 68 Filed 11/10/16 Page 4 of 10 PageID #: 926
`
`
`touch keyboards to support the allegations of functionality for the ’913 Windows Accused
`
`Products. See id., App. A at 1, 4-6, 10, 12-13, 15-17, 19-20, 22; see generally id., App. A at Ex.
`
`B.
`
`13.
`
`The ’387 patent is entitled “Touch-screen image scrolling system and method.”
`
`The Infringement Contentions allege that ASUS infringes claims 9, 11, and 12 of the ’387 patent
`
`both literally and under the doctrine of equivalents. Ex. A at 3; see also id., App. B. Philips also
`
`alleges induced and contributory infringement of claims 9, 11, and 12 of the ’387 patent. Id. at
`
`3-4. The Infringement Contentions include allegations specifically directed to “’387 Windows
`
`Accused Products,” which Philips defines as products “preloaded with Microsoft Windows
`
`version 7 or higher.” Id., App. B at 1-2. The Infringement Contentions state (see id.) that these
`
`accused Windows products are listed in Appendix K, which identifies more than 65 products that
`
`run Windows. The Infringement Contentions also cite to Microsoft Windows 8 and Windows 10
`
`support documents to support the allegations of functionality for the ’387 Windows Accused
`
`Products. Id., App. B at 2, 4-5, 7, 8-13, 15, 18-19; see generally id., App. B at Ex. C.
`
`14.
`
`The ’064 patent is also entitled “Touch-screen image scrolling system and
`
`method.” The Infringement Contentions allege that ASUS infringes claims 1, 2, 3, 5, 6, and 8 of
`
`the ’064 patent both literally and under the doctrine of equivalents. Ex. A at 4; see also id., App.
`
`C. The Infringement Contentions include allegations specifically directed to “’064 Windows
`
`Accused Products,” which Philips defines as products “preloaded with Microsoft Windows
`
`version 7 or higher.” Id., App. C at 2. The Infringement Contentions state (see id.) that these
`
`accused Windows products are listed in Appendix K, which identifies more than 65 products that
`
`run Windows. The Infringement Contentions also cite to Microsoft Windows 8 and Windows 10
`
`{01159819;v1 }
`
`4
`
`
`
`Case 1:15-cv-01125-GMS Document 68 Filed 11/10/16 Page 5 of 10 PageID #: 927
`
`
`support documents to support the allegations of functionality for the ’064 Windows Accused
`
`Products. Id., App. C at 2, 5-6, 8-13, 16, 19-20, 24-25; see generally id., App. C at Ex. C.
`
`15.
`
`The ’695 patent is entitled “Transmitting device for transmitting a digital
`
`information signal alternately in encoded form and non-encoded form.” The Infringement
`
`Contentions allege that ASUS infringes claims 14, 15, and 17 of the ’695 patent both literally
`
`and under the doctrine of equivalents. Ex. A at 5; see also id., App. F. The Infringement
`
`Contentions include allegations specifically directed to “’695 Windows Accused Products,”
`
`which Philips defines as products “preloaded with Microsoft Windows version 10 or higher.” Id.,
`
`App. F at 2. The Infringement Contentions state (see id.) that these accused Windows products
`
`are listed in Appendix K, which identifies more than 65 products that run Windows. The
`
`Infringement Contentions also cite to Microsoft Windows 10 support for FLAC audio to support
`
`the allegations of functionality for the ’695 Windows Accused Products. Id., App. F at 2; see
`
`generally id., App. F at Ex. B.
`
`16.
`
`The ’564 patent is entitled “Hand-held with auto-zoom for graphical display of
`
`web page.” The Infringement Contentions allege that ASUS infringes claims 1, 2, 3, 4, 5, and 7
`
`of the ’564 patent both literally and under the doctrine of equivalents. Ex. A at 7; see also id.,
`
`App. J. The Infringement Contentions include allegations specifically directed to “’564
`
`Windows Accused Products,” which Philips defines as products “preloaded with Microsoft
`
`Windows version 7 or higher.” Id., App. J at 1. The Infringement Contentions state (see id.) that
`
`these accused Windows products are listed in Appendix K, which identifies more than 65
`
`products that run Windows. The Infringement Contentions also cite to photos of an Acer Aspire
`
`Switch 10E running Windows 10 to support the allegations of functionality for the ’564
`
`{01159819;v1 }
`
`5
`
`
`
`Case 1:15-cv-01125-GMS Document 68 Filed 11/10/16 Page 6 of 10 PageID #: 928
`
`
`Windows Accused Products. Id., App. J at 4-6, 8-9, 11-12, 15, 17-18; see generally id., App. J at
`
`Ex. C.
`
`17.
`
`Philips’ assertions that ASUS’s Windows-based tablet, notebook, All-in-One PC,
`
`and 2-in-1 PC products infringe at least five of the ten Asserted Patents as a result of
`
`functionality provided by Windows are tantamount to allegations that Microsoft’s own Windows
`
`products directly infringe these Asserted Patents. Thus, Microsoft has a direct and substantial
`
`interest in defending against and defeating Philips’ claims of infringement.
`
`18.
`
`Upon information and belief, Philips has taken the position that at least the use,
`
`sale, and offer for sale of the Windows Operating System pre-installed in the accused ASUS
`
`products infringes one or more claims of at least five of the ten Asserted Patents.
`
`19.
`
`An actual and justiciable controversy exists between Microsoft and Philips as to
`
`whether or not Microsoft has infringed any claim of the Asserted Patents, directly or indirectly,
`
`based on the Windows Operating System.
`
`20.
`
`As a result of Philips’ Windows-based infringement allegations against ASUS,
`
`Microsoft has an objectively reasonable apprehension that Philips will claim that Microsoft’s
`
`products, including at least the Windows Operating System, directly or indirectly infringe one or
`
`more claims of the Asserted Patents. Therefore, an actual controversy exists between Microsoft
`
`and Philips. By intervening in this action, Microsoft seeks the Court’s assistance and declaration
`
`concerning these matters, which have been and are subjects of disagreement among the parties.
`
`COUNT 1
`
`(Declaratory Judgment of Noninfringement of U.S. Patent No. RE 44,913)
`
`21. Microsoft restates, realleges, and incorporates by reference paragraphs 1 through
`
`20.
`
`{01159819;v1 }
`
`6
`
`
`
`Case 1:15-cv-01125-GMS Document 68 Filed 11/10/16 Page 7 of 10 PageID #: 929
`
`
`22.
`
`A valid and justiciable controversy has arisen and exists between Microsoft and
`
`Philips regarding the ’913 patent.
`
`23. Microsoft does not infringe any claim of the ’913 patent, including claims 1, 3, 4,
`
`5, 8, 9, 12, 13, and 16, either directly or indirectly.
`
`24.
`
`A judicial declaration concerning these matters is necessary and appropriate at
`
`this time so that Microsoft can determine its rights and duties with respect to the parties and with
`
`respect to designing, developing, manufacturing, marketing, and selling its products. Absent
`
`such a declaration, Philips will continue to assert the ’913 patent against Microsoft and/or
`
`Microsoft’s customers, and thereby cause Microsoft irreparable injury and damage. Microsoft
`
`has no other adequate remedy at law.
`
`COUNT 2
`
`(Declaratory Judgment of Noninfringement of U.S. Patent No. 6,690,387)
`
`25. Microsoft restates, realleges, and incorporates by reference paragraphs 1 through
`
`24.
`
`26.
`
`A valid and justiciable controversy has arisen and exists between Microsoft and
`
`Philips regarding the ’387 patent.
`
`27. Microsoft does not infringe any claim of the ’387 patent, including claims 9, 11,
`
`and 12, either directly or indirectly.
`
`28.
`
`A judicial declaration concerning these matters is necessary and appropriate at
`
`this time so that Microsoft can determine its rights and duties with respect to the parties and with
`
`respect to designing, developing, manufacturing, marketing, and selling its products. Absent
`
`such a declaration, Philips will continue to assert the ’387 patent against Microsoft and/or
`
`Microsoft’s customers, and thereby cause Microsoft irreparable injury and damage. Microsoft
`
`has no other adequate remedy at law.
`
`{01159819;v1 }
`
`7
`
`
`
`Case 1:15-cv-01125-GMS Document 68 Filed 11/10/16 Page 8 of 10 PageID #: 930
`
`
`COUNT 3
`
`(Declaratory Judgment of Noninfringement of U.S. Patent No. 7,184,064)
`
`29. Microsoft restates, realleges, and incorporates by reference paragraphs 1 through
`
`28.
`
`30.
`
`A valid and justiciable controversy has arisen and exists between Microsoft and
`
`Philips regarding the ’064 patent.
`
`31. Microsoft does not infringe any claim of the ’064 patent, including claims 1, 2, 3,
`
`5, 6, and 8, either directly or indirectly.
`
`32.
`
`A judicial declaration concerning these matters is necessary and appropriate at
`
`this time so that Microsoft can determine its rights and duties with respect to the parties and with
`
`respect to designing, developing, manufacturing, marketing, and selling its products. Absent
`
`such a declaration, Philips will continue to assert the ’064 patent against Microsoft and/or
`
`Microsoft’s customers, and thereby cause Microsoft irreparable injury and damage. Microsoft
`
`has no other adequate remedy at law.
`
`COUNT 4
`
`(Declaratory Judgment of Noninfringement of U.S. Patent No. 6,522,695)
`
`33. Microsoft restates, realleges, and incorporates by reference paragraphs 1 through
`
`32.
`
`34.
`
`A valid and justiciable controversy has arisen and exists between Microsoft and
`
`Philips regarding the ’695 patent.
`
`35. Microsoft does not infringe any claim of the ’695 patent, including claims 14, 15,
`
`and 17, either directly or indirectly.
`
`36.
`
`A judicial declaration concerning these matters is necessary and appropriate at
`
`this time so that Microsoft can determine its rights and duties with respect to the parties and with
`
`{01159819;v1 }
`
`8
`
`
`
`Case 1:15-cv-01125-GMS Document 68 Filed 11/10/16 Page 9 of 10 PageID #: 931
`
`
`respect to designing, developing, manufacturing, marketing, and selling its product. Absent such
`
`a declaration, Philips will continue to assert the ’695 patent against Microsoft and/or Microsoft’s
`
`customers, and thereby cause Microsoft irreparable injury and damage. Microsoft has no other
`
`adequate remedy at law.
`
`COUNT 5
`
`(Declaratory Judgment of Noninfringement of U.S. Patent No. RE 43,564)
`
`37. Microsoft restates, realleges, and incorporates by reference paragraphs 1 through
`
`36.
`
`38.
`
`A valid and justiciable controversy has arisen and exists between Microsoft and
`
`Philips regarding the ’564 patent.
`
`39. Microsoft does not infringe any claim of the ’564 patent, including claims 1, 2, 3,
`
`4, 5, and 7, either directly or indirectly.
`
`40.
`
`A judicial declaration concerning these matters is necessary and appropriate at
`
`this time so that Microsoft can determine its rights and duties with respect to the parties and with
`
`respect to designing, developing, manufacturing, marketing, and selling its products. Absent
`
`such a declaration, Philips will continue to assert the ’564 patent against Microsoft and/or
`
`Microsoft’s customers, and thereby cause Microsoft irreparable injury and damage. Microsoft
`
`has no other adequate remedy at law.
`
`REQUESTED RELIEF
`
`Therefore, Microsoft requests judgment against Philips as follows:
`
`a.
`
`b.
`
`c.
`
`d.
`
`A Declaration that Microsoft does not infringe any claim of the ’913 patent;
`
`A Declaration that Microsoft does not infringe any claim of the ’387 patent;
`
`A Declaration that Microsoft does not infringe any claim of the ’064 patent;
`
`A Declaration that Microsoft does not infringe any claim of the ’695 patent;
`
`{01159819;v1 }
`
`9
`
`
`
`Case 1:15-cv-01125-GMS Document 68 Filed 11/10/16 Page 10 of 10 PageID #: 932
`
`
`e.
`
`f.
`
`A Declaration that Microsoft does not infringe any claim of the ’564 patent;
`
`A determination that this case is “exceptional” within the meaning of 35 U.S.C.
`
`§ 285, entitling Microsoft to an award of its reasonable attorneys’ fees, expenses and costs; and
`
`g.
`
`A grant of such other and further equitable or legal relief as the Court deems
`
`proper.
`
`DEMAND FOR JURY TRIAL
`
`Microsoft hereby demands trial by jury on all issues so triable.
`
`
`
`
`
`ASHBY & GEDDES
`
`/s/ Steven J. Balick
`
`
`
`
`Steven J. Balick (#2114)
`Andrew C. Mayo (#5207)
`500 Delaware Avenue, 8th Floor
`P.O. Box 1150
`Wilmington, DE 19899
`(302) 654-1888
`sbalick@ashby-geddes.com
`amayo@ashby-geddes.com
`
`Attorneys For Intervenor-Plaintiff Microsoft
`Corporation
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Of Counsel:
`
`Chad S. Campbell
`Jared W. Crop
`PERKINS COIE LLP
`2901 N. Central Avenue, Suite 2000
`Phoenix, AZ 85012-2788
`(602) 351-8000
`
`Judith Jennison
`Christina McCullough
`PERKINS COIE LLP
`1201 Third Avenue, Suite 4900
`Seattle, WA 98101-3099
`(206) 359-8000
`
`Dated: November 10, 2016
`
`
`
`
`
`{01159819;v1 }
`
`10
`
`