Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 1 of 43 PageID: 1
`
`
`
`ROBINS KAPLAN LLP
`
`RAYNA E. KESSLER, ESQ. (NJ 031782010)
`399 Park Avenue, Suite 3600
`New York, NY 10022
`Telephone: (212) 980-7431
`Facsimile: (212) 980-7499
`
`CHRISTOPHER A. SEIDL, ESQ. (MN 0313439) (pro hac vice to be filed)
`MARY PHENG, ESQ. (MN 0398500) (pro hac vice to be filed)
`800 LaSalle Avenue, Suite 2800
`Minneapolis, MN 55402
`Telephone: (612) 349-8500
`Facsimile: (612) 339-4181
`
`SETH A. NORTHROP, ESQ. (CA 301229) (pro hac vice to be filed)
`LI ZHU, ESQ. (CA 302210) (pro hac vice to be filed)
`2440 W. El Camino Real, Suite 100
`Mountain View, CA 94040
`Telephone: (650) 784-4040
`Facsimile: (650) 784-4041
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`
`
`
`INVT SPE LLC,
`
` Plaintiff,
`
` v.
`
`HTC Corporation, and
`HTC America, Inc.,
`
` Defendants.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`CIVIL CASE NO.:
`
`
`
`
`Civil Action
`
`COMPLAINT AND JURY DEMAND
`
`
`
`
`
`IPR2018-1556
`HTC EX1005, Page 1
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 2 of 43 PageID: 2
`
`
`
`
`Plaintiff INVT SPE LLC (“Inventergy SPE”), a Delaware limited liability corporation whose
`
`principal place of business is located at One Market Plaza, Spear Tower, 42nd Floor, San
`
`Francisco, CA 94015, hereby files this Complaint against HTC Corporation and HTC America,
`
`Inc. (collectively “Defendant” or “HTC”). Inventergy SPE alleges as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`Inventergy SPE brings this patent infringement action to protect its intellectual
`
`property and stop Defendant from continuing its wrongful and unlicensed use of Inventergy SPE’s
`
`patented technologies within and in conjunction with Defendant’s mobile phones, phablets, and
`
`tablets, among other devices.
`
`2.
`
`Inventergy SPE owns a robust patent portfolio comprising hundreds of patents
`
`embodying decades of innovation, investment and effort by numerous companies, inventors, and
`
`engineers.
`
`3.
`
`Inventergy SPE’s patent portfolio
`
`includes patents
`
`related
`
`to mobile
`
`telecommunications and wireless technology, including, but not limited to EDGE/3G/LTE user
`
`devices and base stations.
`
`4. Defendant provides certain products and services, including but not limited to its
`
`mobile phones, and tablets, among other devices. Products sold by Defendant include, but are not
`
`limited to, the devices listed in Appendix A. Defendant’s products and related services make use
`
`of Inventergy SPE’s patented technology and infringe the following United States patents (“the
`
`Asserted Patents”):
`
`a. Attached hereto as Exhibit A is U.S. Patent No. 6,466,563 (“the ’563 Patent”),
`
`titled “CDMA Mobile Station and CDMA Transmission Method”;
`
`
`
`
`
`
`
`2
`
`
`
`IPR2018-1556
`HTC EX1005, Page 2
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 3 of 43 PageID: 3
`
`
`
`
`b. Attached hereto as Exhibit B is U.S. Patent No. 6,611,676 (“the ’676 Patent”),
`
`titled “Radio Communication Apparatus and Transmission Rate Control
`
`Method”;
`
`c. Attached hereto as Exhibit C is 7,206,587 (“the ’587 Patent”), titled
`
`“Communication Terminal Apparatus, Base Station Apparatus, and Radio
`
`Communication Method”;
`
`d. Attached hereto as Exhibit D is U.S. Patent No. 7,760,815 (“the ’815 Patent”),
`
`titled “Apparatus and Method for Transmission/Reception”;
`
`e. Attached hereto as Exhibit E is U.S. Patent No. 7,764,711 (“the ’711 Patent”),
`
`titled “CDMA Transmission Apparatus and CDMA Transmission Method”;
`
`f.
`
`Attached hereto as Exhibit F is U.S. Patent No. 7,848,439 (“the ’439 Patent”),
`
`titled
`
`“Communication Apparatus, Communication
`
`System,
`
`and
`
`Communication Method”; and
`
`g. Attached hereto as Exhibit G is U.S. Patent No. 6,760,590 (“the ’590 Patent”),
`
`titled “Communication Terminal Apparatus, Base Station Apparatus, and Radio
`
`Communication Method.”
`
`5. Accordingly, Inventergy SPE seeks damages in an amount adequate to compensate
`
`them for Defendant’s infringement, including trebled damages based on Defendant’s willful
`
`infringement of the Asserted Patents, a permanent injunction barring Defendant from continuing
`
`to infringe the Asserted Patents, or in the alternative, an award of a reasonable ongoing royalty for
`
`future infringement, and Inventergy SPE’s attorneys’ fees and costs associated with this action.
`
`
`
`
`
`
`
`3
`
`
`
`IPR2018-1556
`HTC EX1005, Page 3
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 4 of 43 PageID: 4
`
`
`
`
`JURISDICTION AND VENUE
`
`6.
`
`This lawsuit is a civil action for patent infringement arising under the patent laws of
`
`the United States, 35 U.S.C. § 101 et seq. This Court has subject-matter jurisdiction pursuant to
`
`28 U.S.C. §§ 1331 and 1338(a).
`
`7.
`
`The Court has personal jurisdiction over Defendant because, on information and
`
`belief, Defendant is present within or has minimum contacts within the State of New Jersey and
`
`the District of New Jersey; Defendant has purposefully availed itself of the privileges of
`
`conducting business in the State of New Jersey and the District of New Jersey; Defendant has
`
`sought protection and benefit from the laws of the State of New Jersey; Defendant regularly
`
`conducts business within the State of New Jersey and within the District of New Jersey; and
`
`Inventergy SPE’s cause of action arises directly from Defendant’s business contacts and other
`
`activities in the State of New Jersey and the District of New Jersey.
`
`8. More specifically, this Court has personal jurisdiction over Defendant because
`
`Defendant directly and/or through intermediaries, ships, distributes, uses, offers for sale, sells,
`
`and/or advertises products and services in the United States, the State of New Jersey, and the
`
`District of New Jersey. This Court also has personal jurisdiction over Defendant because
`
`Defendant has committed, contributed to, and induced acts of patent infringement and has
`
`regularly and systematically conducted and solicited business in this District by and through at
`
`least the sales and offers for sale of Defendant’s products and services, and other contractual
`
`arrangements with Defendant’s customers, developers, distributors and third-parties using
`
`Defendant’s products and services located in and/or doing business in this District.
`
`
`
`
`
`
`
`4
`
`
`
`IPR2018-1556
`HTC EX1005, Page 4
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 5 of 43 PageID: 5
`
`
`
`
`9. Upon information and belief, Defendant provides and/or directs its products and
`
`services at customers living in cities served by the United States District Court for the District of
`
`New Jersey.
`
`10. Venue is proper in this District under 28 U.S.C. §§ 1391 and 1400(b). On information
`
`and belief, Defendant has transacted business in this District, has directly committed acts of patent
`
`infringement in this District, and has a regular and established place of business in this District.
`
`11. Defendant engages in a substantial part of its ordinary business in a continuous manner
`
`in this District. On information and belief, Defendant maintains, controls, and pays for a permanent
`
`physical location from which sales are made within this District. Since as early as 2012, Defendant
`
`has operated at least a sales office at 135 State Route 202/206, Bedminster, New Jersey 07921,
`
`which Defendant advertises on its official website for the purpose of hiring potential employees.1
`
`12. On information and belief, within this District, Defendant employs a number of
`
`executives, technical managers, sales representatives, field engineers, and other employees who
`
`are directly involved in Defendant’s direct infringement, including through the testing,
`
`demonstration, use, and sale of the accused products and services within New Jersey.
`
`13. For example, Defendant’s Executive Director for the Verizon Account has operated in
`
`that position at Defendant’s Bedminster office since as early as September 2015. He is responsible
`
`for key carrier accounts for the Defendant in the US and Canada, and has comprehensive product
`
`development, product management, account, and operations experience in the wireless industry.
`
`Defendant’s Executive Director was previously Defendant’s Director of Product Management. He
`
`was also employed in Bedminster, New Jersey while operating in that previous role.
`
`
`
`
`1 HTC, Global Openings | HTC Global Careers, available at
`http://careers.htc.com/career/HTC-global/apply-now/global-openings (last accessed May 24,
`2017).
`
`
`
`
`
`
`
`5
`
`
`
`IPR2018-1556
`HTC EX1005, Page 5
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 6 of 43 PageID: 6
`
`
`
`
`14. Defendant’s Bedminster sales office also employs a number of technical account
`
`managers, senior software engineers, and senior account managers, many of whom have been
`
`employed at that location since as early as 2011. These employees were responsible for a variety
`
`of roles related to Defendant’s direct infringement of the Asserted Patents, including at least the
`
`testing, analysis, and verification of Defendant’s mobile phones and other products and services,
`
`creating and executing test plans to meet carrier requirements, analyzing quality issues during the
`
`fully cycle of Defendant’s mobile products, from design to after launch, chip certification, and
`
`diagnostic training.
`
`15. On information and belief, Defendant’s New Jersey employees are also responsible
`
`for working with major carrier providers to ensure that Defendant’s accused products and services
`
`comply with various 3GPP technical specifications, infriignging one or more of the Asserted
`
`Patents, as further described below. By way of example, Defendant’s employees, both inside and
`
`outside this District, work with Verizon Communications, Inc. and/or its affiliates and/or
`
`subsidiaries such as Cellco Partnership d/b/a Verizon Wireless,
`
`the
`
`largest wireless
`
`telecommunications provider in the United States (collectively, “Verizon”), to ensure that
`
`Defendant’s accused products and services comply with 3GPP technical specifications, infringing
`
`one or more of the Asserted Patents. Verizon’s operations headquarters are located in this District
`
`at 1 Verizon Way, Basking Ridge, New Jersey 07920.2
`
`
`
`
`
`
`
`
`2 Verizon Basking Ridge, NJ Office Location|Verizon Careers, available at
`http://www.verizon.com/about/careers/locations/basking-ridge-nj (last accessed May 24, 2017).
`6
`
`
`
`
`
`
`
`
`
`IPR2018-1556
`HTC EX1005, Page 6
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 7 of 43 PageID: 7
`
`
`
`
`THE PARTIES
`
`A. Plaintiff Inventergy SPE
`
`16.
`
`Inventergy SPE is a Delaware limited liability corporation whose principal place of
`
`business is located at One Market Plaza, Spear Tower, 42nd Floor, San Francisco, CA 94015.
`
`17.
`
`Inventergy SPE owns, through assignments originating with Panasonic Corporation
`
`(“Panasonic”), a patent portfolio (“the Panasonic portfolio”) related to mobile telecommunications
`
`and wireless technology, including, but not limited to EDGE/3G/LTE user devices and equipment.
`
`The portfolio includes approximately 500 patents including the Asserted Patents. Implementation
`
`of mandatory portions of various 3GPP technical specifications, including at least TS 25.133,
`
`25.212, 25.213, 25.214, 25.308, 25.319, 25.321, 36.133, 36.211, 36.212, 36.213, 36.300, 36.331,
`
`45.001, 45.003, and 45.004, infringe one or more of the Asserted Patents. Inventergy SPE also
`
`owns hundreds of other patents related to mobile telecommunications and wireless technology
`
`acquired from Huawei Technologies Co., Ltd. (“Huawei”) and Nokia Corporation (“Nokia”).
`
`18. The Panasonic portfolio assets cover, among other things, key technologies in
`
`EDGE/3G/LTE communications, an industry in which Panasonic has been an early technology
`
`innovator and standards setter.
`
`19.
`
`Inventergy SPE obtained the Panasonic portfolio, including the Asserted Patents,
`
`through an assignment from Inventergy, Inc. (“Inventergy”) on April 27, 2017. Inventergy is an
`
`investment and licensing company that helps industry leaders protect their most valuable
`
`intellectual property. Inventergy was founded by Joe Beyers—the former head of intellectual
`
`property and global strategy at Hewlett-Packard. Through the assignment from Inventergy,
`
`Inventergy SPE now owns all rights, title and interest in the Panasonic portfolio, including the
`
`Asserted Patents.
`
`
`
`
`
`
`
`7
`
`
`
`IPR2018-1556
`HTC EX1005, Page 7
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 8 of 43 PageID: 8
`
`
`
`
`B. The HTC Defendants (“HTC” or “Defendant”)
`
`20. Defendant HTC Corporation (“HTC Corp.”) is a foreign company organized and
`
`existing under the laws of Taiwan, with its principal place of business at 23 Xinghua Road,
`
`Taoyuan City, Taoyuan County 330, Taiwan.
`
`21. Defendant HTC Corp. is involved in the development, manufacture, import and/or sale
`
`of certain products that make use of Inventergy SPE’s patented technology. Products sold by HTC
`
`or through HTC’s intermediaries (including distributors, retailers, and others), subsidiaries, alter
`
`egos, and/or agents include, but are not limited to, the devices listed in Appendix A.
`
`22. Defendant HTC America, Inc. (“HTC America” or “HTCA”) is a Washington
`
`corporation having its principal place of business at 308 Occidental Ave S, Suite 300, Seattle,
`
`Washington 98104. Defendant HTC America has designated National Corporate Research, Ltd.,
`
`14 Scenic Drive, Dayton, NJ 08810, as its registered agent in New Jersey.
`
`23. Defendant HTC America is a wholly-owned subsidiary of Defendant HTC Corp. that
`
`is also involved in the development, manufacture, import and/or sale of certain products that make
`
`use of Inventergy SPE’s patented technology, including, but not limited to, the devices listed in
`
`Appendix A
`
`24. HTC is one of the largest providers of consumer electronics in the country and one of
`
`the world’s largest manufacturers of EDGE/3G/LTE user devices.
`
`BACKGROUND OF THE TECHNOLOGY
`
`25. The technology at issue in this case pertains generally to the field of mobile
`
`telecommunications, including, but not limited to EDGE/3G/LTE user devices.
`
`26. Mobile telecommunications devices allow users to make or receive telephone calls and
`
`transmit and receive data wirelessly over a wide geographical area.
`
`
`
`
`
`
`
`8
`
`
`
`IPR2018-1556
`HTC EX1005, Page 8
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 9 of 43 PageID: 9
`
`
`
`
`27. Around 1980, first generation (“1G”) mobile phones were introduced to the public.
`
`These phones used analog modulation techniques, specifically frequency division multiple access,
`
`to transmit voice calls.
`
`28.
`
`In the 1990s, second generation (“2G”) phones emerged. These phones used digital
`
`technology, which permitted more efficient use of the radio spectrum than their 1G predecessor.
`
`While second generation systems were originally designed only for voice, they were later
`
`enhanced to include data transmission, but could only achieve low data rates.
`
`29. During the same time period of growth for 2G communications systems, overall use
`
`of the Internet also increased. In response to user demand for higher data rates, third generation
`
`(“3G”) phones emerged.
`
`30. While voice calls traditionally dominated the traffic in mobile communications, the
`
`increasing number of mobile devices and the advancement of mobile device technology with
`
`increased features and data-hungry applications drove demand for faster and more reliable data
`
`transmissions. Data traffic over cellular networks has therefore increased dramatically since the
`
`mid to late 2000s.
`
`31. Given the increased demand for data, coupled with limited available radio spectrum,
`
`mobile communication developers were required to create a standard that, compared with 3G,
`
`offered much higher data rates, lower latency, and improved overall user experience. LTE is the
`
`result of this development.
`
`32. Global standards establish precise specifications for the essential components of
`
`telecommunications systems. Global standards are fundamental in allowing products and services
`
`from unrelated competitors to be compatible and to operate seamlessly with a telecommunications
`
`network. These standards include General Packet Radio Service (“GPRS”), Enhanced Data rates
`
`
`
`
`
`
`
`9
`
`
`
`IPR2018-1556
`HTC EX1005, Page 9
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 10 of 43 PageID: 10
`
`
`
`for GSM Evolution (“EDGE”), “Universal Mobile Telecommunications System (“UMTS”), the
`
`High Speed Downlink Packet Access (“HSDPA”) and High Speed Uplink Packet Access
`
`(“HSUPA”) mobile protocols that combine to form High Speed Packet Access (“HSPA”), and
`
`Long-Term Evolution (“LTE”).
`
`33. Each of the standards consists of a series of technical specifications (“TS”). The 25,
`
`36, and 45 series of technical specifications cover various aspects of the above wireless
`
`technologies, including at least TS 25.133, 25.212, 25.214, 25.302, 25.303, 25.308, 25.319,
`
`25.321, 36.211, 36.212, 36.213, 36.300, 45.001, 45.003, and 45.004.
`
`NOTICE AND COMPLIANCE WITH FRAND OBLIGATIONS
`
`34. On January 20, 2015, Inventergy first contacted Defendant regarding a potential
`
`license to a number of patents in Inventergy SPE’s patent portfolio, including the ’563, ’676, ’587,
`
`’815, ’439, and ’590 Asserted Patents. Inventergy’s letter to Defendant described the portfolio on
`
`3G (WDCMA) and 4G (LTE) communications and identified 34 patent families, consisting of 347
`
`patents, with claims directed to end user devices. Inventergy explained that a number of these
`
`patents and patent families related to “WCDMA and LTE standards enabled in HTC’s Products”
`
`and were therefore subject to FRAND licensing commitments. Inventergy further explained that
`
`it was “prepared to grant HTC a worldwide, nonexclusive license” and offered specific royalty
`
`rates for HTC’s products. Inventergy also attached a number of claim charts, including charts for
`
`the ’439 and ’590 Patents.
`
`35.
`
`Inventergy contacted Defendant again on February 13, 2015 to further discuss the
`
`possibility of granting Defendant a worldwide, nonexclusive license for its patent portfolio,
`
`including the Asserted Patents.
`
`36. On July 14, 2015, Inventergy sent Defendant additional materials related to the
`
`
`
`
`
`
`
`10
`
`
`
`IPR2018-1556
`HTC EX1005, Page 10
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 11 of 43 PageID: 11
`
`
`
`Asserted Patents, including several claim charts for the ’563, ’590, and ’439 Patents.
`
`37.
`
`Inventergy met with the Defendant on or around November 12, 2015. At that meeting,
`
`Inventergy presented Defendant with details relating to Inventergy’s 3G/4G patent portfolio and
`
`Defendant’s infringement of the Asserted Patents.
`
`38. Throughout the events described above, Inventergy SPE and/or Inventergy
`
`continuously offered Defendant a license to its Panasonic Portfolio, including the Asserted Patents,
`
`on FRAND terms. To date, Defendant has refused to enter into such a licensing agreement.
`
`39. Throughout the discussions, Inventergy SPE and/or Inventergy continued to discuss
`
`with Defendant its infringement of the Asserted Patents and a potential patent license to resolve
`
`claims relating to infringement.
`
`40. Defendant has been on notice of its infringement of at least U.S. Pat. No. 6,466,563
`
`since at least January 20, 2015, when Inventergy provided actual notice of the Asserted Patents to
`
`Defendant.
`
`41. Defendant has been on notice of its infringement of at least U.S. Pat. No. 6,611,676
`
`since at least January 20, 2015, when Inventergy provided actual notice of the Asserted Patents to
`
`Defendant.
`
`42. Defendant has been on notice of its infringement of at least U.S. Pat. No. 7,206,587
`
`since at least January 20, 2015, when Inventergy provided actual notice of the Asserted Patents to
`
`Defendant.
`
`43. Defendant has been on notice of its infringement of at least U.S. Pat. No. 7,760,815
`
`since at least January 20, 2015, when Inventergy provided actual notice of the Asserted Patents to
`
`Defendant.
`
`44. Defendant has been on notice of its infringement of at least U.S. Pat. No. 7,848,439
`
`
`
`
`
`
`
`11
`
`
`
`IPR2018-1556
`HTC EX1005, Page 11
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 12 of 43 PageID: 12
`
`
`
`since at least January 20, 2015, when Inventergy provided actual notice of the Asserted Patents to
`
`Defendant.
`
`45. Defendant has been on notice of its infringement of at least U.S. Pat. No. 6,760,590
`
`since at least January 20, 2015, when Inventergy provided actual notice of the Asserted Patents to
`
`Defendant.
`
`FIRST CLAIM FOR RELIEF
`
`Infringement of U.S. Patent No. 6,466,563
`
`46.
`
`Inventergy SPE incorporates by reference the foregoing paragraphs.
`
`47. The ’563 Patent issued on October 15, 2002, and is titled “CDMA Mobile Station and
`
`CDMA Transmission Method.”
`
`48.
`
`Inventergy SPE is the owner by assignment of all rights, title, and interest in the ’563
`
`Patent.
`
`49. The ’563 Patent is valid and enforceable.
`
`50. The ’563 patented technology is directed generally to Code Division Multiple Access
`
`(“CDMA”) mobile station apparatuses and CDMA transmission methods. One objective of the
`
`invention was to provide a CDMA mobile stations apparatus and CDMA transmission method
`
`which can maintain established synchronization with a base station apparatus while reducing
`
`power consumption when there is no data to be transmitted. This particular objective can be
`
`achieved, among other ways, by controlling the transmission interval of burst data to N slots (N: a
`
`natural number) when a certain time has elapsed after the end of data transmission.
`
`51. The use of mandatory portions of the HSPA standard infringes the ’563 Patent. For
`
`example, the 3GPP standard TS 25.308 requires use of discontinuous uplink transmission for
`
`transmitting DPCCH in a controllable burst pattern when a user device is not transmitting data (on
`
`
`
`
`
`
`
`12
`
`
`
`IPR2018-1556
`HTC EX1005, Page 12
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 13 of 43 PageID: 13
`
`
`
`an Enhanced Dedicated Channel (“E-DCH”)) or High-Speed Dedicated Physical Control Channel
`
`(“HS-DPCCH”).
`
`52. On information and belief, Defendant’s mobile devices, phablets, tablets, modems,
`
`and other devices with HSPA capabilities use the mandatory portions of the HSPA standard
`
`covered by the ’563 Patent, including but not limited to Claim 12.
`
`53. Defendant has infringed, and is currently infringing, the ’563 Patent in violation of 35
`
`U.S.C. § 271(a) by making, using, selling, offering for sale, and/or importing into the United
`
`States, without authority, products, equipment, software, and/or services that practice one or more
`
`claims of the ’563 Patent, including without limitation Defendant’s mobile devices, phablets,
`
`tablets, modems, and other devices with HSPA capabilities and comply with HSPA standards,
`
`including at least TS 25.308. For instance, these Defendant devices include, but are not limited to,
`
`the HTC 10 mobile phone and equivalents, and the HSPA devices listed in Appendix A.
`
`54. More specifically, Defendant’s mobile devices, phablets, tablets, modems, and other
`
`devices with HSPA capabilities and comply with HSPA standards infringe at least Claim 12 of the
`
`’563 Patent because they generate and transmit frames for uplink transmission by inserting pilot
`
`and Transmit Power Control (TPC) symbols without data using discontinuous uplink transmission
`
`techniques.
`
`55. Defendant was provided one or more claim charts for the ’563 Patent on at least July
`
`14, 2015, and those charts are hereby incorporated by reference.
`
`56. Defendant has had actual knowledge of the ’563 Patent and Defendant’s infringement
`
`of the ’563 Patent since at least January 20, 2015, before the filing of this Complaint. Despite this
`
`knowledge, Defendant continued its infringing activities despite an objectively high likelihood that
`
`its activities constituted infringement of a valid patent, and this risk was either known or so obvious
`
`
`
`
`
`
`
`13
`
`
`
`IPR2018-1556
`HTC EX1005, Page 13
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 14 of 43 PageID: 14
`
`
`
`that it should have been known to Defendant. Thus, Defendant’s infringement has been, and
`
`continues to be, willful and deliberate.
`
`57. Defendant induces third parties, including customers, to infringe the ’563 Patent in
`
`violation of 35 U.S.C. § 271(b) by encouraging and facilitating them to perform actions that
`
`Defendant knows to be acts of infringement of the ’563 Patent. Upon information and belief,
`
`Defendant knows that the use of its mobile devices, phablets, tablets, modems, and other devices
`
`with HSPA capabilities and comply with HSPA standards, constitutes infringement of the ’563
`
`Patent, including at least Claim 12. Defendant advertises the infringing products and services,
`
`publishes specifications and promotional literature encouraging customers to operate the accused
`
`products and services, creates and/or distributes user manuals for the accused products and services
`
`that provide instruction and/or encourage infringing use, and offers support and/or technical
`
`assistance to its customers that provide instructions on and/or encourage infringing use.
`
`58. For instance, Defendant encourages and facilitates its customers to infringe the ’563
`
`Patent by instructing customers that purchase its HTC 10 mobile phones that such devices have
`
`“HSPA” technology, and providing various indicators within those devices of the same.3 Further,
`
`Defendant advertises various products, such as its HTC 10 mobile phone, that employ a
`
`“Snapdragon 820” chipset. 4 Customers, pursuant to Defendant’s instructions, indicators, and
`
`advertisements, each directly infringe the ’563 Patent, including at least Claim 12.
`
`59. Defendant also contributes to the infringement of the ’563 Patent in violation of 35
`
`U.S.C. § 271(c). Defendant contributes to infringement of the ’563 Patent by making, using,
`
`
`
`3 See HTC 10 Industry Leading Features and Specs | HTC United States, available at
`
`http://www.htc.com/us/smartphones/htc-10/ (last accessed Feb. 26, 2017).
`
`4 Id.
`
`
`
`
`
`
`
`
`
`14
`
`
`
`IPR2018-1556
`HTC EX1005, Page 14
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 15 of 43 PageID: 15
`
`
`
`selling, offering to sell and/or importing components that are incorporated with third-party devices
`
`to infringe the ’563 Patent, including at least Claim 12. The accused components constitute a
`
`material part of the invention claimed by the ’563 Patent at least because they work in conjunction
`
`with third-party products or services, and they are specifically made to operate in a manner that
`
`infringes the ’563 Patent by, among other things, enabling various devices, such as mobile devices,
`
`phablets, tablets, modems, and other devices with HSPA capabilities and comply with HSPA
`
`standards, to perform, among other things, the discontinuous transmission of an uplink control
`
`channel when data transmission is not scheduled for transmission. The accused components are
`
`separable from Defendant’s products and are not staple articles or commodities of commerce
`
`suitable for substantial non-infringing use because they necessarily operate in a manner that
`
`infringes the ’563 Patent. Further, because the ’563 Patent is essential to the HSPA standards
`
`Defendant’s devices with HSPA capabilities and comply with HSPA standard are material in
`
`practicing the ’563 Patent, are especially made to infringe the ’563 Patent, and have no substantial
`
`non-infringing uses. Moreover, Defendant publishes or has published information about infringing
`
`aspects of various devices. These devices include mobile devices, phablets, tablets, modems, and
`
`other devices with HSPA capabilities and comply with HSPA standards that are practiced using
`
`the components that Defendant provides. As stated above, Defendant knew of the ’563 Patent and
`
`knew that its actions would lead to infringement of that patent. Therefore, Defendant is also
`
`contributing to the direct infringement of the ’563 Patent by users of Defendant’s services,
`
`products, and/or features, including at least Claim 12.
`
`60.
`
`Inventergy SPE has suffered and continues to suffer damages and irreparable harm as
`
`a result of Defendant’s past and ongoing infringement.
`
`
`
`
`
`
`
`15
`
`
`
`IPR2018-1556
`HTC EX1005, Page 15
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 16 of 43 PageID: 16
`
`
`
`61. Unless Defendant’s infringement is permanently enjoined, Inventergy SPE will
`
`continue to be damaged and irreparably harmed.
`
`SECOND CLAIM FOR RELIEF
`
`Infringement of U.S. Patent No. 6,611,676
`
`62.
`
`Inventergy SPE incorporates by reference the foregoing paragraphs.
`
`63. The ’676 Patent issued on August 26, 2003, and is titled “Radio Communication
`
`Apparatus and Transmission Rate Control Method.”
`
`64.
`
`Inventergy SPE is the owner by assignment of all rights, title, and interest in the ’676
`
`Patent.
`
`65. The ’676 Patent is valid and enforceable.
`
`66. The ’676 patented technology is directed generally to a radio communication
`
`apparatus with a variable transmission rate and a transmission rate control method. One objective
`
`of the invention was to provide a radio communication apparatus and transmission rate control
`
`method capable of controlling transmission power of a base station directed to a mobile station
`
`appropriately without being affected by the environment of the mobile station or transmission rate.
`
`This particular objective can be achieved, among other ways, by a radio communication apparatus
`
`and transmission rate control method that switch the transmission rate of a transmission signal
`
`based on reception quality information from the other end of communication, or according to the
`
`environment of the other end of communication and transmit the signals at the switched
`
`transmission rate. Among other applications, this control method can also be applied to the uplink
`
`to reduce interference, and to achieve power saving or to navigate hardware restrictions. This can
`
`be accomplished in various embodiments, some of which are further described in column 15, lines
`
`1-8 of the ’676 Patent.
`
`
`
`
`
`
`
`16
`
`
`
`IPR2018-1556
`HTC EX1005, Page 16
`
`

`

`Case 2:17-cv-03740-JMV-JBC Document 1 Filed 05/25/17 Page 17 of 43 PageID: 17
`
`
`
`67. The use of mandatory portions of the WCDMA/HSPA standard infringes the ’676
`
`Patent. For example, the 3GPP standard TS 25.214 requires use of Transmit Power Control
`
`(“TPC”) command to control the transmit power of the user device. The value of TPC command
`
`sent to a certain device is based on the comparison result of the estimated signal-to-interference
`
`ratio (“SIR”) and the received uplink SIR on the frequency of the user device. Furthermore, the
`
`3GPP standard requires the user device to select E-TFC to change the uplink transmission rate, as
`
`specified in the 3GPP TS 25.319 standard. Additionally, the 3GPP standard TS 25.321 requires
`
`use of the user device to determine the state of each E-TFC for every MAC-d flow based on its
`
`required transmit power versus the maximum remaining power allowed.
`
`68. Upon information and belief, Defendant’s mobile devices, phablets, tablets, and other
`
`devices with WCDMA/HSPA capabilities use the mandatory portions of the WCDMA/HSPA
`
`standard covered by the ’676 Patent, including but not limited to Claim 7.
`
`69. Defendant has infringed, and is currently infringing, the ’676 Patent in violation of 35
`
`U.S.C. § 271(a) by making, using, selling, offering for sale, and/or importing into the United
`
`States, without authority, products, equipment, software, and/or services that practice one or more
`
`claims of the ’676 Patent, including without limitation Defendant’s mobile devices, phablets,
`
`tablets, and other devices with HSPA capabilities and comply with HSUPA portions of the
`
`WCDMA/HSPA standards, including at least TS 25.214, TS 25.319, and/or TS 25.321. For
`
`instance, these Defendant devices include, but are not limited to, the HTC 10 mobile phone and
`
`equiv