Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.1 Page 1 of 37
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`Kent M. Walker (State Bar No. 173700)
`kwalker@lewiskohn.com
`LEWIS KOHN & WALKER LLP
`15030 Avenue of Science, Suite 201
`San Diego, CA 92128
`Tel: (858) 436-1330
`Fax: (858) 436-1349
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`ADDITIONAL COUNSEL LISTED ON SIGNATURE PAGE
`Attorneys for Plaintiff CyWee Group Ltd.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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`CYWEE GROUP LTD.,
`Plaintiff,
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`CASE NO. ______________________
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`CYWEE GROUP LTD’S ORIGINAL
`COMPLAINT FOR PATENT
`INFRINGEMENT
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`DEMAND FOR JURY TRIAL
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`11
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`v.
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`ZTE CORPORATION, ZTE (USA),
`INC., and ZTE (TX) INC.,
`Defendants.
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`PAGE 1
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`GOOGLE 1029
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`'17
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`CV2130
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`JMA
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`GPC
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`0001
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`Kent M. Walker (State Bar No. 173700)
`kwalker@lewiskohn.com
`LEWIS KOHN & WALKER LLP
`15030 Avenue of Science, Suite 201
`San Diego, CA 92128
`Tel: (858) 436-1330
`Fax: (858) 436-1349
`
`ADDITIONAL COUNSEL LISTED ON SIGNATURE PAGE
`Attorneys for Plaintiff CyWee Group Ltd.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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`CYWEE GROUP LTD.,
`Plaintiff,
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`CASE NO. ______________________
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`CYWEE GROUP LTD’S ORIGINAL
`COMPLAINT FOR PATENT
`INFRINGEMENT
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`DEMAND FOR JURY TRIAL
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`11
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`v.
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`ZTE CORPORATION, ZTE (USA),
`INC., and ZTE (TX) INC.,
`Defendants.
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`PAGE 1
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`GOOGLE 1029
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`'17
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`CV2130
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`JMA
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`GPC
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`0001
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.2 Page 2 of 37
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`1.
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`Plaintiff CyWee Group Ltd. (“Plaintiff” or “CyWee”), by and through its
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`undersigned counsel, files this Original Complaint against Defendants ZTE
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`Corporation, ZTE (USA), Inc., and ZTE (TX), Inc. (collectively “ZTE” or
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`“Defendants”) as follows:
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`THE PARTIES
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`2.
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`CyWee is a corporation existing under the laws of the British Virgin
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`Islands with a principal place of business at 3F, No.28, Lane 128, Jing Ye 1st Road,
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`Taipei, Taiwan 10462.
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`3.
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`CyWee is a world-leading technology company that focuses on building
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`products and providing services for consumers and businesses. CyWee has one of the
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`most significant patent portfolios in the industry and is a market leader in its core
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`development areas of motion processing, wireless high definition video delivery, and
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`facial tracking technology.
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`4.
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`Defendant ZTE Corporation (“ZTE Corp.”) is a Chinese corporation with
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`a principal place of business located at ZTE Plaza, Keji Road South, Hi-Tech
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`Industrial Park, Nanshan District, Shenzhen Prefecture, Guangdong Province,
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`People’s Republic of China 518057.
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`5.
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`Defendant ZTE (USA), Inc. (“ZTEUSA”) is a wholly-owned subsidiary
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`of ZTE Corporation. ZTEUSA is formed under the laws of the State of New Jersey
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`with its principal place of business in California at 6170 Cornerstone Court East, Ste.
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.3 Page 3 of 37
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`270, San Diego, California 92121. ZTE (USA), Inc. may be served through its agent
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`for service of process, Incorp Services, Inc., at 5716 Corsa Ave., Ste. 110, Westlake
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`Village, California 91362.
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`6.
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`On information and belief, Defendant ZTE (TX), Inc. (“ZTETX”) is a
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`wholly-owned subsidiary of ZTE Corporation. ZTETX is a corporation organized and
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`existing under the laws of the State of Texas with its principal place of business in
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`California at 1900 McCarthy Boulevard, #420, Milpitas, California 95035 and may be
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`served through its agent for service of process, Incorp Services, Inc., at 5716 Corsa
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`Ave., Ste. 110, Westlake Village, California 91362.
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`JURISDICTION AND VENUE
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`7.
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`This action arises under the patent laws of the United States, 35 U.S.C. §
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`1 et seq. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
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`13
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`1338(a).
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`8.
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`This Court has personal jurisdiction over each Defendant. Each
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`Defendant has conducted and does conduct business within the State of California.
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`Each Defendant has purposefully and voluntarily availed itself of the privileges of
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`conducting business in the United States, in the State of California, and in the Southern
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`District of California by continuously and systematically placing goods into the stream
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`of commerce through an established distribution channel with the expectation that
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`they will be purchased by consumers in the Southern District of California. ZTEUSA
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.4 Page 4 of 37
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`has a principal place of business in San Diego, California, and ZTETX has one of its
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`five main offices in San Diego, California. Both ZTETX and ZTEUSA are registered
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`to do business in California and maintain agents for service of process there, as well
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`as having authorized retailers for the accused products in this judicial district.
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`Plaintiff’s cause of action arises directly from Defendants’ business contacts and other
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`activities in the State of California and the Southern District of California.
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`9.
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`Venue is proper as to ZTE Corp. under 28 U.S.C. § 1391(c)(3) in that it
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`is not a resident of the United States and may, therefore, be sued in any judicial district.
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`Brunette Mach. Works, Ltd. v. Kockum Indus., Inc., 406 U.S. 706, 714 (1972).
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`10. Venue is proper as to ZTEUSA under 28 U.S.C. § 1400(b) because
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`ZTEUSA has committed acts of infringement in this District and has a regular and
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`established place of business within this District. TC Heartland LLC v. Kraft Foods
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`Grp. Brands LLC, 137 S. Ct. 1514, 1521 (2017). Specifically, ZTEUSA attested that
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`as part of its 2016 Statement of Information for its registration to do business in
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`California that its principle place of business in California is located at 6170
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`Cornerstone Court East, Ste. 270, San Diego, California 92121, which is within this
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`District.
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`11. Venue is proper as to ZTETX under 28 U.S.C. § 1400(b) because ZTETX
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`has committed acts of infringement in this District and has a regular and established
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`place of business within this District. Id. Specifically, on both the contact page and
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.5 Page 5 of 37
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`locations page of its website, ZTETX list an office at 6170 Cornerstone Court East,
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`Ste. 270, San Diego, California 92121, which is within this District, as one of its five
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`offices in the U.S. See www.ztetx.com/about/zte_us_ltd/ (last visited Sept. 26, 2017);
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`www.ztetx.com/others/contact/ (last visited Sept. 26, 2017).
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`12. Upon information and belief, each Defendant has committed acts of
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`infringement in this District giving rise to this action and does business in this District,
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`including making sales and/or providing service and support for their respective
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`customers in this District. Defendants purposefully and voluntarily sold one or more
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`of their infringing products with the expectation that they would be purchased by
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`consumers in this District. These infringing products have been and continue to be
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`purchased by consumers in this District. Defendants have committed acts of patent
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`infringement within the United States, the State of California, and the Southern
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`District of California.
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`BACKGROUND
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`Patentee And The Asserted Patents.
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`13. The Industrial Technology Research Institute (“ITRI”) is a Taiwanese
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`government- and industry-funded research and development center. In 2007, CyWee,
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`which was started at ITRI, was formed. Its goal was to provide innovative motion-
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`sensing technologies, such as those claimed in the patents-in-suit. Dr. Shun-Nan Liu
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`and Chin-Lung Li, two of the inventors of the patents-in-suit, came to CyWee from
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.6 Page 6 of 37
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`ITRI. The third inventor, Zhou “Joe” Ye joined CyWee from private industry as its
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`President and served as CEO from 2006 to 2016.
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`14. The inventors, Zhou Ye, Chin-Lung Li, and Shun-Nan Liou, conceived
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`of the claims of the patents-in-suit—U.S. Patent No. 8,441,438 (the “’438 patent”)
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`and U.S. Patent No. 8,552,978 (the “’978 patent”)—at CyWee Group Ltd., located at
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`3F, No. 28, Lane 128, Jing Ye Road, Taipei.
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`15. Several claims of the patents-in-suit are entitled to a priority date of at
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`least January 6, 2010 based on U.S. Provisional Application Serial No. 61/292,558,
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`filed January 6, 2010 (“Provisional Application”).
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`16. Before May 22, 2009, CyWee began working on the “JIL Game Phone
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`Project” or “JIL Phone.” Before July 29, 2009, CyWee developed a solution for the
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`JIL Phone that practiced several claims of the ’438 patent. Those claims were
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`diligently and constructively reduced to practice thereafter through the filing of the
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`Provisional Application and were diligently and actually reduced to practice as
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`discussed below. Accordingly, CyWee is entitled to a priority date of at least July 29,
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`2009 for several claims of the ’438 patent.
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`17. The JIL Phone was reduced to practice by at least September 25, 2009.
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`The JIL Phone practiced several claims of both patents-in-suit. Accordingly, CyWee
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`is entitled to a priority date of at least September 25, 2009 for several claims of the
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`patents-in-suit.
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`0006
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.7 Page 7 of 37
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`Background Of The Technology.
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`18. The ’438 patent and ’978 patent are each directed to devices and methods
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`for tracking the motion of a portable electronic device in 3D space and compensating
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`for accumulated errors to map the 3D movements of the device onto a display frame
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`(’438 patent) or transform the 3D movements for a display, such as a 2D display on a
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`computer or handheld device (’978 patent). ’438 patent 1:17-52, 3:52-57; ’978 patent
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`1:22-27, 7:5-18; Exhibit C, Declaration of Nicholas Gans, Ph.D. (“Gans Decl.”) ¶ 8.
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`At a high level, the patented inventions teach how to determine a device’s current
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`orientation based on motion data detected by its motion sensors, such as an
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`accelerometer, gyroscope, and magnetometer. ’438 patent 4:6-30; ’978 patent 4:15-
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`44; Gans Decl. ¶ 8. The ’438 patent and ’978 patent describe portable electronic
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`devices or pointing devices such as smartphones and navigation equipment. ’978
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`patent 22:34-40, Fig. 6; ’438 patent 4:6-30, Fig. 6; Gans. Decl. ¶ 8.
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`19. There are different types of motion sensors, including accelerometers,
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`gyroscopes, and magnetometers. Gans Decl. ¶ 9. Accelerometers measure
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`accelerations. Id. For example, airbags use accelerometers, such that the airbag is
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`triggered based on sudden deceleration. Accelerometers can also measure forces due
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`to gravity. Id. Gyroscopes measure rotation rates or angular velocities. Magnetometers
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`measure magnetism, including the strength of a magnetic field along a particular
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`direction. Id. Each type of motion sensor is subject to inaccuracies. Id. For example,
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.8 Page 8 of 37
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`a gyroscope sensor has a small, added offset or bias. Id. This bias will accumulate over
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`time and lead to large drift error. Id. Similarly, magnetometers are subject to
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`interference from natural and manmade sources (e.g., power electronics). Id.
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`Additionally, errors can accumulate over time. Id. These sensors typically take
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`measurements along a single direction. Id. To accurately measure motions along an
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`arbitrary axis, three like sensors are grouped together and aligned at right angles. Such
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`a sensor set is generally referred to as a 3-axis sensor. Id.
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`20. Orientation information returned by the claimed inventions of the ’438
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`patent and ’978 patent has many uses, particularly for mobile cellular devices, such as
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`navigation, gaming, and augmented/virtual reality applications. Gans Decl. ¶ 12.
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`Navigation applications can use orientation information to determine the heading of
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`the phone, indicate what direction the user is facing, and automatically orient the map
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`to align with the cardinal directions. Id. Increasing numbers of games and other
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`applications use the motion of the phone to input commands, such as tilting the mobile
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`device like a steering wheel. Id. Augmented and virtual reality applications rely on
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`accurate estimation of the device orientation in order to render graphics and images at
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`the proper locations on the screen. Id.
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`21. Prior to 2010, motion sensors had limited applicability to portable
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`electronic devices due to a variety of technological hurdles. Gans Decl. ¶ 13. For
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`example, different types of acceleration (e.g., linear, centrifugal, gravitational) could
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.9 Page 9 of 37
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`not be readily distinguished from one another, and rapid, dynamic, and unexpected
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`movements caused significant errors and inaccuracies. Id. These difficulties were
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`compounded by the miniaturization of the sensors necessary to incorporate them in
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`portable electronic devices. Id. With the development of micro-electromechanical
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`systems, or “MEMS,” miniaturized motion sensors could be manufactured and
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`incorporated on a semiconductor chip, but such MEMS sensors had significant
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`limitations. Id.
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`22. For example, it is impossible for MEMS accelerometers to distinguish
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`different types of acceleration (e.g., linear, centrifugal, gravitational). Gans Decl. ¶
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`14. When a MEMS accelerometer is used to estimate orientation, it must measure
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`force along the direction of gravity (i.e., down), but that gravitational measurement
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`can be “interfused” with other accelerations and forces (e.g., vibration or movement
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`by the person holding the device). Id. Thus, non-gravitational accelerations and forces
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`must be estimated and subtracted from the MEMS accelerometer measurement to
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`yield an accurate result. Id. A MEMS gyroscope is prone to drift, which will
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`accumulate increasing errors over time if not corrected by another sensor or
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`recalibrated. Id. A MEMS magnetometer is highly sensitive to not only the earth’s
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`magnetic fields, but other sources of magnetism (e.g., power lines and transformers)
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`and can thereby suffer inaccuracies from environmental sources of interference that
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`vary both in existence and intensity from location to location. Id.
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.10 Page 10 of 37
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`23. Additionally, orientation cannot be accurately calculated using only one
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`type of MEMS sensor. Gans Decl. ¶ 15. For example, if only a 3-axis MEMS
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`accelerometer is used to measure orientation, pitch and yaw can be measured, but not
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`roll. Id. If only a MEMS gyroscope is used to measure angular velocity, only relative
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`changes in orientation can be measured, not absolute orientation. Id.
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`24. Without orientation information, mobile device apps would be limited to
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`very static operation. Gans Decl. ¶ 16. This was the scenario with initial smart phones
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`and other mobile devices. Id. Navigation aids could render a map and indicate the
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`location of the device using GPS. Id. However, these maps would orient with North
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`on the map pointing to the top of the screen. Id. The user could rotate the map using
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`touch commands, but the map would not rotate automatically as the user turned. Id.
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`Nor could the device indicate what direction the device was facing. Id.
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`25. Many games use motion of the device to control the game. Gans Decl. ¶
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`17. A common control scheme, especially for driving and piloting games, is to have
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`the user rotate the device, such as a phone or game controller, like a steering wheel to
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`indicate the direction the vehicle should move. Id. Some puzzle games also use
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`motions to cause elements of the game to move. Id. As discussed previously,
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`accelerometers measure acceleration, which is a very noisy signal. Id. Acceleration is
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`the derivative of velocity, which is the derivative of position. Id. Small magnitude
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`noise can have large derivatives, which means that small levels of noise from vibration
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.11 Page 11 of 37
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`or electrical fluctuations will be magnified at the acceleration level. Id. Even a
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`stationary device will have notable noise measured by an accelerometer. Id. A moving
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`device will only amplify this noise. Id. Since accelerometers measure linear and
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`centripetal accelerations as well as the acceleration of gravity, orientation estimates
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`on a moving device will not be accurate. Id.
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`26.
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`If only an accelerometer is used, a coarse estimate of the device
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`orientation can be obtained by averaging or numerically filtering the results. Gans
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`Decl. ¶ 18. Essentially, the device can determine if it is tilted left or right, up or down,
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`but the exact angle cannot be estimated accurately while in motion. Id. This is suitable
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`for games to move a character or steer a vehicle in a particular direction, but generally
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`cannot utilize the magnitude of tilt to move at corresponding faster or slower speeds.
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`27. Movement on a display can, of course, be controlled by means other than
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`a portable electronic device with orientation sensors. Gans Decl. ¶ 19. For example,
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`games could be controlled using traditional “joystick” type inputs. Id. For smart
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`phones with touch screens, commands are given by having the user touch specific
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`parts of the screen. Id.
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`28. For other current applications, portable electronic devices with
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`orientation sensors are more crucial. Gans Decl. ¶ 20. Augmented reality (AR) and
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`virtual reality (VR) are new and growing classes of applications for smart phones and
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.12 Page 12 of 37
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`mobile devices. Id. In AR, the device camera provides live video feed to the screen,
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`and the application overlays generate graphics onto the screen at specific locations.
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`Id. AR navigation apps can draw signs or labels to indicate what specific places or
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`objects are, or can render arrows or other indicators. Id. AR games and teaching
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`applications can label objects or draw characters or items such that they appear as if
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`they are in the real world seen in the video. Id. Virtual reality is similar but does not
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`use the camera, rather it completely renders an artificial 3D environment on the screen.
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`Id. VR most often requires a head set such that the user only sees the screen. Id. Mobile
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`devices and smart phones used for VR generally split the screen and display to two
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`side-by-side images of the rendered environment that are slightly offset to simulate a
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`left and right eye. Id. The device then sits in a headset with lenses such that the user
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`has each eye see only one of the split-screen images and has a sense of stereo (3D)
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`vision. Id.
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`29. Without orientation sensing, AR and VR applications cannot work. Gans
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`Decl. ¶ 21. The system will have no ability to understand the orientation of the device
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`and know where to draw objects and/or the scene. Id. The rough orientation estimate
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`provided by an accelerometer (ideally with a magnetometer) will not be sufficient to
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`track during typical head motions. Id. It has been demonstrated that VR applications
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`that use an accelerometer often cause motion sickness, as the rendered images do track
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`with the head motions. Id. An AR application with the use of a gyroscope and fusion
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.13 Page 13 of 37
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`algorithm will not render objects at the correct locations, and may obscure the view
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`rather than provide helpful information. Id.
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`30. There are ways to estimate orientation other than the approaches
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`presented in the ’438 patent or ’978 patent, which involve algorithms that filter and
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`fuse measurements from inertial and magnetic sensors. Gans Decl. ¶ 22. Most such
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`methods are based on cameras and computer vision algorithms. Id. However, the
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`limitations of these methods render them unusable for portable electronic devices. Id.
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`For example, there are a variety of motion capture systems that use cameras arrayed
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`around an environment. Markers (e.g., reflective balls) can be placed on objects, and
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`the cameras can locate the markers, often to sub-mm accuracy. Id. If an object has
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`three or more markers on it, the orientation of the object can be determined with sub-
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`degree accuracy. Id. This method is very accurate, but quite expensive (often about
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`$100,000). Id. The cameras are fixed in place, and the estimation can only work within
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`a small space (a box of dimensions on the order of tens of meters). Id. This is not
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`suitable for the vast majority of mobile device users or applications. Id.
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`31. A camera on a portable electronic device, such as a smart phone, can be
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`used to estimate orientation of the phone. Gans Decl. ¶ 23. One class of approaches to
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`this problem uses special patterns or markers in the environment. Id. These often have
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`the appearance of a QR code or 2D UPC. Id. Taking a picture of the pattern, computer
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`vision algorithms can determine the position and orientation of the camera with
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.14 Page 14 of 37
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`respect to the marker. Id. AR applications have placed the patterns on specific objects
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`or consumer products so the device can render images and graphics with respect to
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`the pattern. Id. AR games have included patterned mats that are placed on a table or
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`other flat surface, and the device renders characters and objects as if they were on the
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`surface. Id.
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`32. Multiple unique patterns can be placed around an environment; so long
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`as one is always in view, the camera can maintain an estimate of the orientation and
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`position. Gans Decl. ¶ 24. In this way, it can be used for navigation. Id. The necessity
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`of placing patterns would make this approach useless for a majority of applications,
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`particularly outdoors. Id. The camera would also need to remain on at all times, which
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`would cause severe battery drain. Id.
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`33. Orientation of the camera can also be estimated over an indefinite amount
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`of time using vision algorithms known as visual odometry. Gans Decl. ¶ 25. In visual
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`odometry, changes in the image over time are used to estimate the camera velocity.
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`Id. This velocity can be integrated over time to estimate the change in orientation.
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`While these methods are well understood, they can only track change in relative
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`orientation, not give absolute orientation. Id. They also require the camera to be on at
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`all times, which will greatly reduce battery life. Id.
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.15 Page 15 of 37
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`The Prior Art.
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`34. As noted in both the ’438 patent and ’978 patent, prior art portable
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`electronic devices, such as pointing devices, smartphones and navigation equipment,
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`had several deficiencies in addressing the technological challenges of mapping and
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`transforming movement in a 3D space to a 2D display. These prior art portable devices
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`could only output the movement of the device in 2D, rather than the 3D reference
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`frame of the ’438 and’978 patents. ’438 patent 2:47-55; ’978 patent 2:41-58. In
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`addition, the portable devices could not accurately calculate and account for
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`movements of the device in a dynamic environment, such as erroneous drift
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`measurements of the device or accelerations along with the direction of gravity. ’438
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`patent 2:55-62; ’978 patent 2:58-66. These prior art portable devices were also limited
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`to detecting gravitational acceleration detected by the accelerometer, and were
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`therefore incapable of accurately outputting the actual yaw, pitch and roll angles. ’438
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`patent 2:62-3:5; ’978 patent 2:66-3:13. Finally, for the specific case of pointing
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`devices, when they extended beyond the border or boundary of the display, the
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`absolute movement pattern was not mapped, but instead the location outside the
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`boundary was ignored and a relative movement pattern used, which resulted in
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`uncompensated errors. ’438 patent 3:16-51; ’978 patent 3:20-52.
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`PATENT INFRINGEMENT OF U.S. PATENT NO. 8,441,438
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`35. Plaintiff repeats and re-alleges each and every allegation of paragraphs
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.16 Page 16 of 37
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`1-34 as though fully set forth herein.
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`36. The ’438 patent, titled “3D Pointing Device and Method for
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`Compensating Movement Thereof,” was duly and legally issued by the United States
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`Patent and Trademark Office on May 14, 2013 to CyWee Group Limited, as assignee
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`of named inventors Zhou Ye, Chin-Lung Li, and Shun-Nan Liou.
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`37. CyWee is the owner of all right, title, and interest in and to the ’438 patent
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`with full right to bring suit to enforce the patent, including the right to recover for past
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`infringement damages.
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`38. The ’438 patent claims, inter alia, a machine capable of detecting,
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`measuring, and calculating the movements and rotations of the machine—utilizing,
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`inter alia, a six-axis motion sensor module, a data transmitting unit, and a computing
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`processor in one or more claimed configurations—and methods for measuring and
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`calculating the movements and rotations of a device within a spatial reference frame.
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`39. The ’438 patent is directed to useful and novel particular embodiments
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`and methods for detecting, measuring, and calculating motion within a spatial
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`reference frame. See Gans. Decl. ¶ 27. Specifically, the ’438 patent claims a novel
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`system involving multiple sensor types and a novel method for using those sensors to
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`overcome the limitations of the individual sensor types in accurately determining the
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`orientation of a device. See id. ¶¶ 26-28. The ’438 patent is not intended to, and does
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`not claim every possible means of detecting, measuring, and calculating motion within
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.17 Page 17 of 37
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`a spatial reference frame. There are alternative methods to determining orientation
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`within a spatial reference frame, such as systems and methods utilizing computer
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`vision algorithms and/or cameras. See id. ¶¶ 22-25, 33. The ’438 patent is directed to
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`a technological solution to a technological problem. Id. ¶¶ 33-35. Accordingly, the
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`’438 patent is not directed to, and does not claim, the mere concept of motion sensing
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`or of detecting, measuring, and calculating motion within a spatial reference frame.
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`Id. ¶¶ 29-35.
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`40. Each and every claim of the ’438 patent is valid and enforceable and each
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`enjoys a statutory presumption of validity separate, apart, and in addition to the
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`statutory presumption of validity enjoyed by every other of its claims. 35 U.S.C. §
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`282.
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`41. CyWee is informed and believes, and thereupon alleges, that ZTE has
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`been, and is currently, directly and/or indirectly infringing one or more claims of the
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`’438 patent in violation of 35 U.S.C. § 271, including as stated below.
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`42. CyWee is informed and believes, and thereupon alleges, that ZTE has
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`directly infringed, literally and/or under the doctrine of equivalents, and will continue
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`to directly infringe claims of the ’438 patent by making, using, selling, offering to sell,
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`and/or importing into the United States products that embody or practice the apparatus
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`and/or method covered by one or more claims of the ’438 patent including, but not
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`limited to, Defendants’ following devices:
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.18 Page 18 of 37
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`ZTE Axon 7
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` ZTE Axon 7 Mini
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` ZTE ZMax Pro
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`ZTE Blade Spark
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`43. The foregoing devices are collectively referred to as the “’438 Accused
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`Products” and include the below specifications and features.
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`44. On information and belief, ZTE indirectly infringes the ’438 patent by
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`inducing others to infringe one or more claims of the ’438 patent through sale and/or
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`use of the ’438 Accused Products. On information and belief, at least as a result of the
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`filing of this action, ZTE is aware of the ’438 patent; is aware that its actions with
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`regards to distributors, resellers, and/or end users of the ’438 Accused Products would
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`induce infringement; and despite such awareness will continue to take active steps—
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`PAGE 18
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`0018
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`Case 3:17-cv-02130-BEN-MSB Document 1 Filed 10/17/17 PageID.19 Page 19 of 37
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`such as, creating and disseminating the ’438 Accused Products and product manuals,
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`instructions, promotional and marketing materials, and/or technical materials to
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`distributors, resellers, and end users—encouraging other’s infringement of the ’438
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`patent with the specific intent to induce such infringement.1
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`45. The ZTE Axon 7 includes a display screen.
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`46. The ZTE Axon 7 includes a housing.
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`47. The ZTE Axon 7 includes a 3-axis accelerometer.
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`48. The ZTE Axon 7 includes a 3-axis gyroscope.
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`49. The ZTE Axon 7 includes at least one printed circuit board (“PCB”).
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`50. The ZTE Axon 7 includes a 3-axis accelerometer attached to a PCB.
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`51. The ZTE Axon 7 includes a 3-axis gyroscope attached to a PCB.
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`52. The ZTE Axon 7 includes a 3-axis accelerometer that is capable of
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`measuring accelerations.
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`53. The ZTE Axon 7 includes a 3-axis gyroscope that is capable of measuring
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`rotation rates.
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`54. The ZTE Axon 7 runs an AndroidTM operating system.
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`1 To preempt any argument that such allegations are insufficient to establish a claim
`for induced infringement, CyWee respectfully notes that at least one Texas court
`previously held such allegations sufficient. See, e.g., ZTE Techs. Co. v. T-Mobile US,
`Inc., Case No. 2:16-cv-00052-JRG-RSP, 2017 WL 1129951, at *3 (E.D. Tex. Feb. 21,
`2017) (“ZTE’s complaints adequately plead knowledge. ZTE alleges that T-Mobile
`knew of the asserted patents ‘since at least the filing of this action.’”).
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`PLAINTIFF’S ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
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`PAGE 19
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