IN THE UNITED STATED DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Civil Action No. 2:18-cv-00021
`
`JURY TRIAL DEMANDED
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`LEMAIRE ILLUMINATION
`TECHNOLOGIES, LLC
`
`vs.
`
`HTC CORPORATION,
`
`Plaintiff,
`
`Defendants.
`
`PLAINTIFF LEMAIRE ILLUMINATION TECHNOLOGIES, LLC’S INITIAL
`DISCLOSURE OF ASSERTED CLAIMS AND PRELIMINARY INFRINGEMENT
`CONTENTIONS
`
`In accordance with Patent Local Rules 3-1 and 3-2, Plaintiff Lemaire Illumination
`
`Technologies, LLC ("Lemaire Illumination"), provides the following Disclosure of Asserted
`
`Claims and Preliminary Infringement Contentions against Defendant HTC Corporation (“HTC”
`
`or “Defendant”) in this action. This disclosure is made solely for the purpose of this action.
`
`Discovery in this matter has not yet commenced. Defendant has not yet produced any
`
`samples of Accused Devices, or provided any deposition testimony. Lemaire Illumination’s
`
`investigation regarding other potential grounds of infringement is therefore ongoing. This patent
`
`rule disclosure is therefore based upon information that Lemaire Illumination has been able to
`
`obtain to date together with Lemaire Illumination’s current good faith beliefs regarding the
`
`Accused Devices, including publicly obtained information and is given without prejudice to
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`Lemaire Illumination’s right to further supplement or amend its disclosure as additional facts are
`
`ascertained, analyses are made, research is completed and/or claims are construed. These
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`PLAINTIFF LEMAIRE ILLUMINATION TECHNOLOGIES, LLC’S PRELIMINARY INFRINGEMENT CONTENTIONS
`
`PAGE 1
`
`HTC, Exhibit 1022
`
`
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Civil Action No. 2:18-cv-00021
`
`JURY TRIAL DEMANDED
`
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`LEMAIRE ILLUMINATION
`TECHNOLOGIES, LLC
`
`vs.
`
`HTC CORPORATION,
`
`Plaintiff,
`
`Defendants.
`
`PLAINTIFF LEMAIRE ILLUMINATION TECHNOLOGIES, LLC’S INITIAL
`DISCLOSURE OF ASSERTED CLAIMS AND PRELIMINARY INFRINGEMENT
`CONTENTIONS
`
`In accordance with Patent Local Rules 3-1 and 3-2, Plaintiff Lemaire Illumination
`
`Technologies, LLC ("Lemaire Illumination"), provides the following Disclosure of Asserted
`
`Claims and Preliminary Infringement Contentions against Defendant HTC Corporation (“HTC”
`
`or “Defendant”) in this action. This disclosure is made solely for the purpose of this action.
`
`Discovery in this matter has not yet commenced. Defendant has not yet produced any
`
`samples of Accused Devices, or provided any deposition testimony. Lemaire Illumination’s
`
`investigation regarding other potential grounds of infringement is therefore ongoing. This patent
`
`rule disclosure is therefore based upon information that Lemaire Illumination has been able to
`
`obtain to date together with Lemaire Illumination’s current good faith beliefs regarding the
`
`Accused Devices, including publicly obtained information and is given without prejudice to
`
`Lemaire Illumination’s right to further supplement or amend its disclosure as additional facts are
`
`ascertained, analyses are made, research is completed and/or claims are construed. These
`
`PLAINTIFF LEMAIRE ILLUMINATION TECHNOLOGIES, LLC’S PRELIMINARY INFRINGEMENT CONTENTIONS
`
`PAGE 1
`
`HTC, Exhibit 1022
`
`
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`disclosures are based at least, in part, upon Lemaire Illumination’s present understanding of the
`
`meaning and scope of the claims of the Patents-in-Suit.
`
`Lemaire Illumination expressly reserves the right to further supplement these Preliminary
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`Infringement Contentions, including the list of Accused Devices, based upon further discovery.
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`Further, Lemaire Illumination reserves the right to amend or supplement any of these disclosures
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`and contentions in view of any claims construction ruling(s) issued by the Court or any position
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`taken by Defendant in this action, pursuant to P.R. 3-6 and 3-7. Lemaire Illumination, therefore,
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`expressly further reserves the right to amend or supplement its identification of asserted claims,
`
`Accused Devices, and priority dates, as well as its claim charts, based on further investigation
`
`and discovery. Also, the fact that a claim is not currently identified as an infringed claim should
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`not be interpreted as an indication that such claim is not infringed by the Accused Devices.
`
`PLAINTIFF LEMAIRE ILLUMINATION TECHNOLOGIES, LLC’S PRELIMINARY INFRINGEMENT CONTENTIONS
`
`PAGE 2
`
`HTC, Exhibit 1022
`
`
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`I.
`
`IDENTIFICATION OF INFRINGED CLAIMS AND ACCUSED DEVICES
`PURSUANT TO P.R. 3-1(A) AND (B)
`
`Lemaire Illumination asserts that the following Claims in the following patents are
`
`infringed by the Defendants:
`
`A.
`
`United States Patent No. 6,095,661
`
`1.
`
`P.R. 3-1(a) - Infringed Claims
`
`Lemaire Illumination presently contends that Defendant infringes Claim 34 of United
`
`States Patent No. 6,095,661 (“the ’661 Patent”) based on Lemaire Illumination's understanding
`
`of the information currently available to Lemaire Illumination regarding Defendant’s Accused
`
`Devices identified below.
`
`2.
`
`P.R. 3-1(b) - Accused Devices
`
`Lemaire Illumination presently identifies the following products as Accused Devices
`
`under all applicable subsections of 35 U.S.C. § 271 with respect to the respective asserted
`
`claims: all versions of the HTC One M8 smartphone device made, used, offered for sale, sold in,
`
`and/or imported into, the United States; all versions of the HTC One M9 smartphone device
`
`made, used, offered for sale, sold in, and/or imported into, the United States; all versions of the
`
`HTC 10 smartphone device made, used, offered for sale, sold in, and/or imported into, the United
`
`States; all versions of the HTC Desire Eye smartphone device made, used, offered for sale, sold
`
`in, and/or imported into, the United States; and, all versions of the HTC U Ultra smartphone
`
`device made, used, offered for sale, sold in, and/or imported into, the United States.
`
`Lemaire Illumination anticipates that events in the litigation, such as substantive review
`
`of documents produced by Defendant that has yet to occur, further discovery to be provided by
`
`Defendant and/or by third parties and the Court's claim construction, may impact the patent
`
`claims Lemaire Illumination contends are infringed. These identifications are, therefore,
`
`
`PLAINTIFF LEMAIRE ILLUMINATION TECHNOLOGIES, LLC’S PRELIMINARY INFRINGEMENT CONTENTIONS
`
`
`
`
`
`
`PAGE 3
`
`HTC, Exhibit 1022
`
`
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`preliminary and Lemaire Illumination reserves further right to add to or otherwise modify its
`
`identification of claims it contends are infringed and/or modify the identification of the Accused
`
`Devices.
`
`B.
`
`United States Patent No. 6,488,390
`
`1.
`
`P.R. 3-1(a) - Infringed Claims
`
`Lemaire Illumination presently contends that Defendant infringes Claim 19 of United
`
`States Patent No. 6,488,390 (“the ’390 Patent”) based on Lemaire Illumination's understanding
`
`of the information currently available to Lemaire Illumination regarding Defendant’s Accused
`
`Devices identified below.
`
`2.
`
`P.R. 3-1(b) - Accused Devices
`
`Lemaire Illumination presently identifies the following products as Accused Devices
`
`under all applicable subsections of 35 U.S.C. § 271 with respect to the respective asserted
`
`claims: all versions of the HTC One M8 smartphone device made, used, offered for sale, sold in,
`
`and/or imported into, the United States; all versions of the HTC One M9 smartphone device
`
`made, used, offered for sale, sold in, and/or imported into, the United States; and, all versions of
`
`the HTC Desire Eye smartphone device made, used, offered for sale, sold in, and/or imported
`
`into, the United States.
`
`Lemaire Illumination anticipates that events in the litigation, such as substantive review
`
`of documents produced by Defendant that has yet to occur, further discovery to be provided by
`
`Defendant and/or by third parties and the Court's claim construction, may impact the patent
`
`claims Lemaire Illumination contends are infringed. These identifications are, therefore,
`
`preliminary and Lemaire Illumination reserves further right to add to or otherwise modify its
`
`
`PLAINTIFF LEMAIRE ILLUMINATION TECHNOLOGIES, LLC’S PRELIMINARY INFRINGEMENT CONTENTIONS
`
`
`
`
`
`
`PAGE 4
`
`HTC, Exhibit 1022
`
`
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`identification of claims it contends are infringed and/or modify the identification of the Accused
`
`Devices.
`
`C.
`
`United States Patent No. 9,119,266
`
`1.
`
`P.R. 3-1(a) - Infringed Claims
`
`Lemaire Illumination presently contends that Defendant infringes Claim 9 of United
`
`States Patent No. 9,119,266 (“the ’266 Patent”) based on Lemaire Illumination's understanding
`
`of the information currently available to Lemaire Illumination regarding Defendant’s Accused
`
`Devices identified below.
`
`2.
`
`P.R. 3-1(b) - Accused Devices
`
`Lemaire Illumination presently identifies the following products as Accused Devices
`
`under all applicable subsections of 35 U.S.C. § 271 with respect to the respective asserted
`
`claims: all versions of the HTC One M8 smartphone device made, used, offered for sale, sold in,
`
`and/or imported into, the United States; all versions of the HTC One M9 smartphone device
`
`made, used, offered for sale, sold in, and/or imported into, the United States; all versions of the
`
`HTC 10 smartphone device made, used, offered for sale, sold in, and/or imported into, the United
`
`States; all versions of the HTC Desire Eye smartphone device made, used, offered for sale, sold
`
`in, and/or imported into, the United States; and, all versions of the HTC U Ultra smartphone
`
`device made, used, offered for sale, sold in, and/or imported into, the United States.
`
`Lemaire Illumination anticipates that events in the litigation, such as substantive review
`
`of documents produced by Defendant that has yet to occur, further discovery to be provided by
`
`Defendant and/or by third parties and the Court's claim construction, may impact the patent
`
`claims Lemaire Illumination contends are infringed. These identifications are, therefore,
`
`preliminary and Lemaire Illumination reserves further right to add to or otherwise modify its
`
`
`PLAINTIFF LEMAIRE ILLUMINATION TECHNOLOGIES, LLC’S PRELIMINARY INFRINGEMENT CONTENTIONS
`
`
`
`
`
`
`PAGE 5
`
`HTC, Exhibit 1022
`
`
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`identification of claims it contends are infringed and/or modify the identification of the Accused
`
`Devices.
`
`II. CHARTS IDENTIFYING CLAIM ELEMENTS WITHIN ACCUSED DEVICES
`PURSUANT TO P.R. 3-1(C)
`
`With its Initial Disclosure of Asserted Claims and Preliminary Infringement Contention,
`
`Lemaire Illumination provided charts (Exhibits A-M) that identify where each limitation of each
`
`asserted claim is found or embodied in each of the Accused Devices. These identifications are
`
`based on understanding of information currently available to Lemaire Illumination, and Lemaire
`
`Illumination reserves further right to supplement these charts as discovery proceeds.
`
`1.
`
`Exhibit A - Infringement of the ’661 Patent by the HTC One M8 smartphone
`
`device.
`
`2.
`
`Exhibit B - Infringement of the ’661 Patent by the HTC One M9 smartphone
`
`device.
`
`3.
`
`4.
`
`Exhibit C – Infringement of the ’661 Patent by the HTC 10 smartphone device.
`
`Exhibit D – Infringement of the ’661 Patent by the HTC Desire Eye smartphone
`
`device.
`
`5.
`
`Exhibit E – Infringement of the ’661 Patent by the HTC U Ultra smartphone
`
`device.
`
`6.
`
`Exhibit F – Infringement of the ’390 Patent by the HTC One M8 smartphone
`
`device.
`
`7.
`
`Exhibit G - Infringement of the ’390 Patent by the HTC One M9 smartphone
`
`device.
`
`8.
`
`Exhibit H – Infringement of the ’390 Patent by the HTC Desire Eye smartphone
`
`device.
`
`
`PLAINTIFF LEMAIRE ILLUMINATION TECHNOLOGIES, LLC’S PRELIMINARY INFRINGEMENT CONTENTIONS
`
`
`
`
`
`
`PAGE 6
`
`HTC, Exhibit 1022
`
`
`
`9.
`
`Exhibit I – Infringement of the ’266 Patent by the HTC One M8 smartphone
`
`device.
`
`10.
`
`Exhibit J - Infringement of the ’266 Patent by the HTC One M9 smartphone
`
`device.
`
`11.
`
`12.
`
`Exhibit K – Infringement of the ’266 Patent by the HTC 10 smartphone device.
`
`Exhibit L – Infringement of the ’266 Patent by the HTC Desire Eye smartphone
`
`device.
`
`13.
`
`Exhibit M – Infringement of the ’266 Patent by the HTC U Ultra smartphone
`
`device.
`
`Lemaire Illumination contends that the asserted claims are each directly infringed by at
`
`least the making, using, offering to sell, selling, and/or importing into the United States, of the
`
`Accused Devices. Additionally, or in the alternative, if Defendant is deemed not to directly
`
`infringe the asserted claims, then Lemaire Illumination contends that Defendant indirectly
`
`infringe such claims. Without limitation, Lemaire Illumination contends that Defendant
`
`indirectly infringes the asserted claims by actively and knowingly aiding and abetting others —
`
`including without limitation the end users of the Accused Devices — to directly infringe the
`
`asserted claims of the Patents-in-Suit once the Defendant knows of those patents.
`
`Additionally, or in the alternative, Lemaire Illumination contends on information and
`
`belief that Defendant indirectly infringes the asserted claims by contributing to the infringement
`
`by others, including without limitation by end users of the Accused Devices because Defendant
`
`knew that the combination for which their components were especially made was both patented
`
`and infringing and that Defendant’s components have no substantial non-infringing uses.
`
`Additionally, or in the alternative, if Defendant is deemed not to directly infringe the asserted
`
`
`PLAINTIFF LEMAIRE ILLUMINATION TECHNOLOGIES, LLC’S PRELIMINARY INFRINGEMENT CONTENTIONS
`
`
`
`
`
`
`PAGE 7
`
`HTC, Exhibit 1022
`
`
`
`claims, then Lemaire Illumination contends that Defendant infringes such claims, including
`
`without limitation with end users of the Accused Devices and/or, on information and belief, any
`
`other third parties who make or use the Accused Devices, under Defendant’s direction and/or
`
`control.
`
`III. LITERAL INFRINGEMENT AND INFRINGEMENT UNDER THE DOCTRINE
`OF EQUIVALENTS PURSUANT TO P. R. 3-1(D)
`
`Lemaire Illumination contends that Defendant’s Accused Devices, as identified above,
`
`literally infringe the asserted claims of each of the ’661 Patent, the ’390 Patent, and the ’266
`
`Patent. Nevertheless, with respect to any claim element or limitation that may be found not to be
`
`literally embodied in the Accused Devices, Lemaire Illumination contends, in the alternative,
`
`that the Accused Devices embody such claim elements or limitations under the doctrine of
`
`equivalents and that any claim element or limitation not found to be literally met is equivalently
`
`met because any difference between the claim element or limitation and the Accused Devices, is
`
`not a substantial difference.
`
`Accordingly, Lemaire Illumination contends that any asserted claim in which the
`
`Accused Devices is not found to be embodied literally is nevertheless embodied by the Accused
`
`Devices under the doctrine of equivalents under an operative doctrine of equivalent test, e.g.
`
`function-way-result or insubstantial difference tests.
`
`IV. LEMAIRE ILLUMINATION'S PATENT PRIORITY DATES PURSUANT TO
`P.R. 3-1(E)
`
`Lemaire Illumination presently asserts that each of the asserted claims of the ’661 Patent,
`
`the ’390 Patent, and the ’266 Patent are entitled to a priority date of March 19, 1998.
`
`V. DISCLOSURE PURSUANT TO P.R. 3-1(F)
`
`
`PLAINTIFF LEMAIRE ILLUMINATION TECHNOLOGIES, LLC’S PRELIMINARY INFRINGEMENT CONTENTIONS
`
`
`
`
`
`
`PAGE 8
`
`HTC, Exhibit 1022
`
`
`
`Based on presently available information and current analysis, Lemaire Illumination
`
`states that no products of Lemaire Illumination currently embody any asserted claims of the ’661
`
`Patent, the ’390 Patent, or the ’266 Patent. Lemaire Illumination’s response is based on
`
`information currently known to Lemaire Illumination and is without prejudice to Lemaire
`
`Illumination's right to supplement its response during the course of litigation.
`
`VI. LOCAL RULE 3-2 DOCUMENT PRODUCTION
`
`Pursuant to Local Rule 3-2, Lemaire Illumination produces responsive documents.
`
`Lemaire Illumination has provided as complete of a copy of the prosecution file as possible.
`
`Lemaire Illumination reserves the right to supplement these documents.
`
`
`
`
`
`Dated: August 28, 2018
`
`
`
`Respectfully submitted,
`
`/s/ Katarzyna Brozynski
`Katarzyna Brozynski
` Texas State Bar No. 24036277
` kbrozynski@spencerfane.com
`Antonio S. Devora
`Texas State Bar No. 24074133
`adevora@spencerfane.com
` SPENCER FANE, LLP
` 5800 Granite Parkway, Suite 800
` Plano, TX 75024
` (972) 324-0300 Telephone
` (972) 324-0301 Fax
`
`
`Neal G. Massand
`NI, WANG AND MASSAND, PLLC
`Texas Bar No. 24039038
`nmassand@nilawfirm.com
`8140 Walnut Hill Lane, Suite 500
`Dallas, TX, 75231
`(972) 331-4600 Telephone
`(972) 314-0900 Fax
`
`ATTORNEYS FOR PLAINTIFF
`
`
`
`
`
`
`
`
`PLAINTIFF LEMAIRE ILLUMINATION TECHNOLOGIES, LLC’S PRELIMINARY INFRINGEMENT CONTENTIONS
`
`
`
`
`
`
`PAGE 9
`
`HTC, Exhibit 1022
`
`
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`CERTIFICATE OF SERVICE (VIA EMAIL)
`
`I hereby certify that on this 28th day of August 2018, pursuant to Local Rule CV-5(d), a
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`true and correct copy of the foregoing pleading has been served by electronic mail on the
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`following attorneys of record for Defendant at the email addresses listed:
`
`Matthew C. Bernstein
`MBernstein@perkinscoie.com
`Miguel J. Bombach
`MBombach@perkinscoie.com
`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`
`Eric Findlay
`efindlay@findlaycraft.com
`Brian Craft
`bcraft@findlaycraft.com
`FINDLAY CRAFT, P.C.
`102 N. College Ave., Suite 900
`Tyler, TX 75702
`
`SPENCER FANE, LLP
`
`/s/ Katarzyna Brozynski
`
`PLAINTIFF LEMAIRE ILLUMINATION TECHNOLOGIES, LLC’S PRELIMINARY INFRINGEMENT CONTENTIONS
`
`PAGE 10
`
`HTC, Exhibit 1022
`
`
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