Case 2:16-cv-00147 Document 1 Filed 02/17/16 Page 1 of 27 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`PACKET INTELLIGENCE LLC,
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`Plaintiff,
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`
`
`v.
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`SANDVINE CORPORATION, and
`SANDVINE INCORPORATED ULC,
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`Defendants.
`
`Civil Action No. ___________
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`JURY TRIAL DEMANDED
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`PACKET INTELLIGENCE LLC’S COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff Packet Intelligence LLC (“Packet Intelligence” or “Plaintiff”), by and through its
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`undersigned attorneys hereby demands a jury trial and alleges the following in support of its
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`Complaint for patent infringement against Defendants Sandvine Corporation and Sandvine
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`Incorporated ULC (collectively, “Sandvine,” “Sandvine Defendants,” or “Defendants”):
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`THE PARTIES
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`1.
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`Plaintiff Packet Intelligence is a limited liability company existing under the laws
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`of Texas with its principal place of business at 505 East Travis Street Suite 209, Marshall, TX
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`75670.
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`2.
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`Defendant Sandvine Corporation is a corporation organized and existing under the
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`laws of Ontario, Canada, with its registered principal office at 408 Albert Street, Waterloo,
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`Ontario, Canada, N2L 3V3. The shares of Sandvine Corporation are publicly traded on the
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`Toronto Stock Exchange.
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`Juniper Exhibit 1100
`Juniper Networks, Inc. v. Packet Intelligence LLC
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`3.
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`Defendant Sandvine Incorporated ULC is a corporation organized and existing
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`under the laws of Alberta, Canada. It is a wholly owned “operating subsidiary” of Defendant
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`Sandvine Corporation, and lists the same mailing address and headquarters as its corporate
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`parent, at 408 Albert Street, Waterloo, Ontario, Canada, N2L 3V3.
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`JURISDICTION AND VENUE
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`4.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
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`1338(a) because this action arises under the Patent Laws of the United States, 35 U.S.C. § 1 et
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`seq.
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`5.
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`This Court has personal jurisdiction over the Sandvine Defendants, who have
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`conducted and continue to conduct business within the State of Texas, and within the Eastern
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`District of Texas. The Sandvine Defendants directly and/or through intermediaries (including
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`distributors, sales agents, and others), ship, distribute, offer for sale, sell, advertise, and/or use
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`their products (including, but not limited to, the products that are accused of patent infringement
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`in this lawsuit) in the United States, the State of Texas, and the Eastern District of Texas. The
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`Sandvine Defendants have committed patent infringement within the State of Texas, and, more
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`particularly, within the Eastern District of Texas as alleged in more detail below.
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`6.
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`Venue is proper in this federal district under 28 U.S.C. §§ 1391(b) and (c). On
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`information and belief, Defendant has transacted business in this district and has committed acts
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`of patent infringement in this district.
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`7.
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`On information and belief arising from Sandvine personnel “LinkedIn”
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`advertisements, from August 2006 to January 2011, Sandvine’s “Director Strategic Accounts”
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`resided in or near this district, and from January 2011 to the present, Sandvine’s “Regional Vice
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`President Sales, U.S.,” has resided in or near this district.
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`8.
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`On information and belief arising from Sandvine personnel “LinkedIn”
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`advertisements, Sandvine’s “Sales Engineering Director, CALA” has resided in or near this
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`district from July 2010 to the present.
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`9.
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`A “Comprehensive Business Report” from LexisNexis discloses two addresses
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`for Sandvine Corp. located within Collin County in this judicial district, which both appear to be
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`related to Sandvine Corp. worker compensation coverage. (See Exhibits 1 and 2). On information
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`and belief, the Sandvine Corp. referred to in these LexisNexis reports refer to one more of the
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`Sandvine Defendants.
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`10.
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`On information and belief, Sandvine has and does regularly promote, offer to sell,
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`sell, and use infringing products and technology throughout Texas, including in and near this
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`district. Sandvine has also sold infringing products and technology to customers for use within
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`Texas, and within this district.
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`11.
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`On information and belief arising from press releases, Sandvine has and/or had a
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`business relationship with Peoples Telephone Cooperative—a Quitman, Texas-based company to
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`which Sandvine provided IP service control platform technology. Quitman, Texas is located
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`within this judicial district.
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`12.
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`On information and belief arising from press releases, Sandvine has sold its
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`accused Policy Traffic Switch and Policy Engine technology to SpeedConnect, which maintains
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`its regional office in San Angelo, Texas and serves customers with wireless broadband Internet,
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`DISH TV and telephone service in Texas.
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`13.
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`On information and belief arising from press releases, Sandvine itself has
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`promoted and demonstrated its internet and cloud services controller technology in Texas,
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`including for example at the 2015 MEF Global Ethernet Networking (GEN15) conference at the
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`Omni Hotel in Dallas, Texas.
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`14.
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`On information and belief arising from press reports and Sandvine regulatory
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`disclosures, Sandvine’s customers for the accused infringing technology include five of the top
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`six—and eight of the top ten—cable operators in North America. On information and belief,
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`Sandvine supplies its cable operator customers with infringing technology that is offered for sale,
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`sold and/or used throughout Texas, including in this district.
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`15.
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`The Sandvine Defendants operate an interactive website at www.sandvine.com
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`that is accessible in Texas and this district. This website advertises and promotes Sandvine’s
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`accused Policy Traffic Switch (PTS) and Policy Engine (PE) products. The webpages describing
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`Sandvine’s PTS and PE products contain hyperlinks to connect with Sandvine staff so that
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`Sandvine can discuss its PTS and PE products with customers and/or potential customers. The
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`Sandvine website’s PTS and PE product literature also separately contains information to
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`directly contact Sandvine’s sales staff.
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`16.
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`All of the patents asserted in this Complaint were previously asserted in a lawsuit
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`filed in this district on March 12, 2013, in Packet Intelligence, LLC v. Huawei Device USA Inc.,
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`et al, Case No. 2:13-cv-00206-JRG-RSP (E.D. Tex.). The case was dismissed by agreement of
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`the parties on March 4, 2014 (Dkts. 53 and 54).
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`17.
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`All of the patents asserted in this Complaint were previously asserted in a lawsuit
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`filed in this district on March 24, 2014, in Packet Intelligence LLC v. Cisco Systems Inc., Case
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`No. 2:14-cv-00252-JRG (E.D. Tex.). The case was dismissed by agreement of the parties on
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`March 2, 2015 (Dkt. 106).
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`THE ASSERTED PATENTS-IN-SUIT
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`On November 18, 2003, the United States Patent and Trademark Office (USPTO)
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`18.
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`duly and legally issued U.S. Patent No. 6,651,099 (“the ’099 Patent”) entitled “Method and
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`Apparatus for Monitoring Traffic in a Network.” Packet Intelligence owns all substantial rights
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`to the ’099 Patent, including the right to sue and recover damages for all infringement thereof.
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`Documents assigning the ’099 Patent to Packet Intelligence were recorded at the USPTO on
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`February 1, 2013 at Reel/Frame 29737-613. Attached hereto as Exhibit 3 is a true and correct
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`copy of the ’099 Patent.
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`19.
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`The ’099 patent has been cited as pertinent prior art by either an applicant, or a
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`USPTO examiner, during the prosecution of more than 275 issued patents and published patent
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`applications, including during the prosecution of patent applications filed by Alcatel Lucent,
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`AT&T, Broadcom, Cisco, Ericsson, F5 Networks, Fortinet, Hewlett-Packard, IBM, Intel, Juniper
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`Networks, McAfee, Microsoft, Nokia, Samsung, Sonus Networks, Symantec, Verizon, VMware,
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`and the United States of America as represented by the National Security Agency.
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`20.
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`On December 16, 2003, the USPTO duly and legally issued U.S. Patent No.
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`6,665,725 (“the ’725 Patent”) entitled “Processing Protocol Specific Information in Packets
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`Specified by a Protocol Description Language.” Packet Intelligence owns all substantial rights to
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`the ’725 Patent, including the right to sue and recover damages for all infringement thereof.
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`Documents assigning the ’725 Patent to Packet Intelligence were recorded at the USPTO on
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`February 1, 2013 at Reel/Frame 29737-613. A true and correct copy of the ’725 Patent is
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`attached hereto as Exhibit 4.
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`21.
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`The ’725 patent has been cited as pertinent prior art by either an applicant, or a
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`USPTO examiner, during the prosecution of more than 260 issued patents and published patent
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`applications, including during the prosecution of patent applications filed by Alcatel Lucent,
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`Amazon, AT&T, Avaya, Broadcom, Cisco, F5 Networks, Finisar, Fortinet, Fujitsu, Huawei,
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`Hewlett-Packard, IBM, Intel, Juniper Networks, McAfee, Microsoft, Nokia, Sandvine, Sun
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`Microsystems, and Symantec.
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`22.
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`On August 3, 2004, the USPTO duly and legally issued U.S. Patent No. 6,771,646
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`(“the ’646 Patent”) entitled “Associative Cache Structure for Lookups and Updates of Flow
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`Records in a Network Monitor.” Packet Intelligence owns all substantial rights to the ’646
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`Patent, including the right to sue and recover damages for all infringement thereof. Documents
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`assigning the ’646 Patent to Packet Intelligence were recorded at the USPTO on February 1,
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`2013 at Reel/Frame 29737-613. A true and correct copy of the ’646 Patent is attached hereto as
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`Exhibit 5.
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`23.
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`The ’646 patent has been cited as pertinent prior art by either an applicant, or a
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`USPTO examiner, during the prosecution of more than 170 issued patents and published patent
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`applications, including during the prosecution of patent applications filed by AT&T, Avaya,
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`Broadcom, Cisco, Dell, Hewlett-Packard, IBM, Intel, Juniper Networks, Lucent, McAfee,
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`Oracle, Nokia, Nortel Networks, Sun Microsystems, Symantec, and Tektronix.
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`24.
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`On January 4, 2005, the USPTO duly and legally issued U.S. Patent No.
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`6,839,751 (“the ’751 Patent”) entitled “Re-Using Information from Data Transactions for
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`Maintaining Statistics in Network Monitoring.” Packet Intelligence owns all substantial rights to
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`the ’751 Patent, including the right to sue and recover damages for all infringement thereof.
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`Documents assigning the ’751 Patent to Packet Intelligence were recorded at the USPTO on
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`February 1, 2013 at Reel/Frame 29737-613. A true and correct copy of the ’751 Patent is
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`attached hereto as Exhibit 6.
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`25.
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`The ’751 patent has been cited as pertinent prior art by either an applicant, or a
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`USPTO examiner, during the prosecution of more than 100 issued patents and published patent
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`applications, including during the prosecution of patent applications filed by AT&T, Avaya,
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`Ciena, Cisco, Hewlett-Packard, IBM, Intel, McAfee, Microsoft, NEC, Oracle, Nortel Networks,
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`Sun Microsystems, and VMware.
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`26.
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`On October 11, 2005, the USPTO duly and legally issued U.S. Patent No.
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`6,954,789 (“the ’789 Patent”) entitled “Method and Apparatus for Monitoring Traffic in a
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`Network.” Packet Intelligence owns all substantial rights to the ’789 Patent, including the right to
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`sue and recover damages for all infringement thereof. Documents assigning the ’789 Patent to
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`Packet Intelligence were recorded at the USPTO on February 1, 2013 at Reel/Frame 29737-613.
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`A true and correct copy of the ’789 Patent is attached hereto as Exhibit 7.
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`27.
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`The ’789 patent has been cited as pertinent prior art by either an applicant, or a
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`USPTO examiner, during the prosecution of more than 90 issued patents and published patent
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`applications, including during the prosecution of patent applications filed by Alcatel Lucent,
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`AT&T, Finisar, Fujitsu, Georgia Tech Research Institute, Google, Hewlett-Packard, IBM, Intel,
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`McAfee, Microsoft, and Motorola.
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`28.
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`The patents-in-suit are early pioneer patents in the field of network traffic
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`processing and monitoring. Each of the asserted patents claim priority to provisional U.S. Patent
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`Application No. 60/141,903 entitled “Method and Apparatus for Monitoring Traffic in a
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`Network,” filed in the United States Patent and Trademark Office on June 30, 1999.
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`29.
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`As just one measure of the pioneering status of the asserted patents, collectively
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`they have been cited as pertinent prior art by USPTO examiners and industry leading patent
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`applicants during the prosecution of more than 900 issued patents and published patent
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`applications filed with the USPTO.
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`30. Mr. Russell S. Dietz, the first listed inventor on four of the five patents-in-suit is a
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`recognized thought leader who publishes and lectures regularly on network data management,
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`cloud computing and virtualization security solutions. Bloomberg’s Executive Profile for Mr.
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`Dietz notes that he “has more than 30 years of experience in the technology and security space.
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`He has a proven record of success as Chief Technology Officer of multiple hardware, software
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`and systems security companies, and is a recognized pioneer and innovator in cloud computing
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`and virtualization security solutions. . . He has more than 20 years of leadership and expertise
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`anticipating trends, and evaluating new technologies in data communications, data management
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`and Enterprise security. . . He is an active member of the Internet and Engineering Task Force
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`(IETF), Optical Internetworking Forum (OIF) and the Cloud Computing Interoperability Forum
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`(CCIF).”
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`31. While the applications that matured into the patents-in-suit were pending, Mr.
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`Dietz served as the Vice President and Chief Technology Officer at Appitude, Inc. (the original
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`assignee of the patents-in-suit), and he continued as VP and CTO at Hifn, Inc. after Hifn
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`acquired Appitude, Inc. and the patents-in-suit. Among his other positions, Mr. Dietz currently
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`serves as a technology consultant to Packet Intelligence.
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`SANDVINE’S TECHNOLOGY AND THE MARKET FOR ITS TECHNOLOGY
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`32.
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`Sandvine develops and markets Network Policy Control solutions for high-speed,
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`or “broadband” Internet service providers that require management of network performance
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`through deep packet inspection or DPI. Sandvine’s solutions help service providers better
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`understand their networks and apply specific network policies that will improve the quality of
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`service for their subscribers, support the creation of new revenue-generating services, mitigate
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`malicious traffic, more efficiently manage network traffic and notify subscribers of important
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`information. Sandvine has over 250 Internet service provider customers in over 90 countries who
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`serve hundreds of millions of fixed line and mobile broadband Internet subscribers.
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`33.
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`In 2013, Infonetics Research estimated that service providers spent $728 million
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`on DPI solutions. In its October 2014 report, Infonetics Research predicted that Sandvine’s
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`market would grow to just under $2.0 billion annually by 2018, and named Sandvine the market
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`share leader.
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`34.
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`According to Sandvine’s 2014 Annual Report, “Sandvine’s network policy
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`control equipment and solutions add intelligence to fixed, mobile and converged
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`communications service provider networks. By providing end-to-end policy control functions,
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`including traffic classification, policy decision and enforcement, the products provide service
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`providers with actionable business insight, the ability to deploy new subscriber services and tools
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`to optimize network traffic.”
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`35.
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`In a 2014 Letter to Shareholders, Sandvine reported “a record $123.4 million in
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`revenue. . . [r]evenue from the Wireless market grew from 37% of revenue in 2013 to 47% in
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`2014, while the Cable market was also a key driver for revenue growth for the year and
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`represented 27% of total revenue. Geographically, North America and the Caribbean and Latin
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`America were our highest growth regions.”
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`36.
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`In its 2014 Annual Report, Sandvine described its target market as “broadband
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`Internet service providers worldwide, including those which offer such services through mobile,
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`DSL, cable, fixed wireless, and FTTx Internet access technologies. Within the fixed line
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`component (DSL, cable and FTTx) of the market, Sandvine primarily targets the top 250
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`operators around the world, by subscriber count, which represent the vast majority of the global
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`subscriber base. Industry analyst reports estimate that there were approximately 650 million
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`fixed line broadband subscribers globally at the end of 2013. In the wireless market (mobile and
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`fixed wireless), Sandvine primarily targets the top 350 service providers in the world. According
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`to industry analysts there were approximately 2 billion mobile broadband users at the end of
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`2013. This figure is expected to grow rapidly over the next few years with ongoing adoption of
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`smart devices.”
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`37.
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`The 2014 Annual Report also explains that “Sandvine distributes its products and
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`services through a combination of direct and indirect sales channels in order to obtain global
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`sales coverage and retain direct contact with the customer base . . . With direct sales, the ultimate
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`end customer purchases products directly from [Sandvine]. The direct sales team comprises
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`Sandvine employees and local area representatives . . . The indirect sales channel utilizes reseller
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`partners such as global network equipment vendors, systems integrators and regional value-
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`added resellers to market and sell Sandvine’s products. Sales may be initiated by partners or
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`initiated by Sandvine and then fulfilled and serviced through reseller partners. In all cases the
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`partner purchases [Sandvine’s] product for the purpose of reselling it to the ultimate end
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`customer.”
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`38.
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`Sandvine’s Network Policy Control solutions typically comprise a hardware
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`platform and proprietary software modules that are typically bundled together to provide a
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`system for broadband Internet service providers to identify (e.g., video streams like Netflix,
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`VoIP traffic like Skype, or online gaming), report on and take action on the data traversing their
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`networks.
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`SANDVINE’S INFRINGING PRODUCTS
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`39.
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`The core of Sandvine’s hardware platform is the Policy Traffic Switch (“PTS”),
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`which includes a Policy Engine (PE). Sandvine’s PTS product line includes at least three
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`hardware models, referred to as the PTS 22000, PTS 24000, and PTS 32000, and each of these
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`accused models are available in a range of variants with different performance characteristics
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`and includes a PE. Sandvine also offers the PTS Virtual Series, which is a software-only version
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`of the PTS functionality suitable for networks architected for Network Functions Virtualization
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`(“NFV”) and Software Defined Networking (“SDN”). NFV is a carrier-led effort to move away
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`from proprietary hardware, motivated by desires to dramatically reduce the cost of deployment
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`by using standard commercial off-the-shelf (“COTS”) hardware, for all network functions, in a
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`shared environment. Running all functions on identical, shared hardware promises a much
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`simpler, more efficient network. A related concept, SDN, seeks to establish the linkage/paths
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`between virtualized network functions in software, on-the-fly, via application program interfaces
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`(“APIs”). SDN is a deployment tool that enables a programmable network. The shift to NFV-
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`and SDN-enabled network means that the functions running on Sandvine’s PTS and PE, other
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`aspects of its hardware platform and existing software offerings will all be offered as software-
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`only to run on COTS hardware.
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`40.
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`Embedded within Sandvine’s PTS products is the Sandvine PE, which “can be
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`thought of as a black box into which information about measured conditions and provisioned
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`subscriber entitlement flows, and out of which charging updates, management actions, and
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`business intelligence emerge.” (See Exhibit 8, Policy Traffic Switch Overview Data Sheet). The
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`PTS “software performs vital functions and provides information for the Policy Engine.” (Id.)
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`One of the functions the PTS software provides is Deep Packet Inspection (DPI) that provides
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`real-time information about the identity and measured characteristics of network traffic. (Id.)
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`41.
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`Sandvine’s PTS’s are available as both a hardware appliance and as a virtual
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`appliance that is a software application that executes on a standard computer server running the
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`Linux operating system. (See Exhibit 9, Policy Traffic Switch Virtual Series Datasheet).
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`42.
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`The above-identified and described Sandvine PE, and Sandvine PTS hardware
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`appliance products and software, as well as Sandvine’s virtual appliance software application
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`products, comprise Sandvine’s “PTS Infringing Products.”
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`OPERATION OF SANDVINE’S PTS INFRINGING PRODUCTS
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`43.
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`Both the physical and the virtual versions of the PTS Infringing Products provide
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`the PTS Software functionality as shown in the graphic below. The virtual PTS, running on a
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`Linux OS server in a data center network is connected to a point in the network through the data
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`port(s) of the server. The server’s network interface card(s) are packet acquisition device(s) with
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`data throughput speeds from 1 gigabyte per second through 80 gigabytes per second or more
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`dependent upon the type and number of cores of the server’s central processor unit. Provided
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`below is a graphic representation of the functions provided by PTS Products. The graphic shows
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`that the functionality of the PTS hardware appliance and the virtual PTS in terms of both the
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`Sandvine Policy Engine and the PTS Software is identical. (See, e.g., Exhibit 8).
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`44.
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`Sandvine’s PTS Infringing Products connect to a computer network via a network
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`port and/or network interface device, such network interface device having buffer memories to
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`facilitate reception and transmission of data to and from the physical network connection point.
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`45.
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`An image of the backplane of a representative hardware version of the PTS
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`Infringing Products (Model 24000), shows the network ports that are used to connect the PTS to
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`a connection point of a computer network (Exhibit 10, PTS 24000 Datasheet):
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`46.
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`A graphic showing how the virtual PTS Infringing Products connect to the
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`network is below. The graphic shows the network interface cards (NICs) of the server connecting
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`to a physical interface on the network (See Exhibit 11, Sandvine Implementing Policy Control as
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`a Virtual Network Function Whitepaper).
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`47.
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`Sandvine periodically issues software updates called the Loadable Traffic
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`Identification Package (LTIP)—see e.g., Exhibit 12, Sandvine LTIPs 13.03.01, No. 05-00070-
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`B41—which updates the parsing/extraction operations memory of the PTS Infringing Products
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`with operations to identify new protocols, changes to existing operations reflecting changes in
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`existing protocols, and deletions of operations for protocols no longer in use. These update
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`documents refer to items such as “fixed pattern signatures” for protocols such as TCP or HTTP
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`and others that are used to recognize the identity of protocols at the application layer.
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`48.
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`The operating systems of the PTS Infringing Products use IPTables, Netfilter, and
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`Conntrack modules to create and maintain their networking session (flow) tables. All three use
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`information from network packets referred to as the 5-Tuple to identify packets with existing
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`sessions (flows). The 5-tuple consists of the packet’s source IP address, the source port number,
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`the destination IP address, the destination port number, and the layer 4 transport protocol ID.
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`These five items are parsed/extracted from every arriving packet and the parser subsystem then
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`forms a function using the 5 values as the input to the function. The hardware PTS Infringing
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`Products employ a network processing unit (which includes a parser subsystem connected to the
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`pattern/extraction operations memory) that examines packets and determines the flow to which
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`they belong and it uses this information to direct the processing of the packet to a processor core
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`that will then see all traffic in both directions for that “particular flow, session, or subscriber.”
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`(See Exhibit 13, Sandvine Maximizing Performance With Core and Processor Affinity).
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`49.
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`The software PTS Infringing Products use a combination of an intelligent load
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`balancer and the Intel DPDK to examine packets and route them to the desired processor and
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`processor core. (See, e.g., Exhibit 11).
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`50.
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`The PTS Infringing Products using CPU cores coupled to a flow entry database
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`and a state pattern/operations memory perform a state processing and protocol/state
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`identification.
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`51.
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`The PTS Infringing Products employ “Stateful Awareness,” illustrated, for
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`example, by an FTP (File Transfer Protocol), which defines a control channel that mediates the
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`creation of an FTP Data session used to transfer a file. Because the source and destination port
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`numbers to be used are part of the negotiation, the PTS Infringing Products employ a finite state
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`machine to track the exchange of information on the control channel between the server and the
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`15
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`Case 2:16-cv-00147 Document 1 Filed 02/17/16 Page 16 of 27 PageID #: 16
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`client. Sandvine calls these statefully aware signatures “trackers.” The finite state machines
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`(trackers) are parsing/extraction operations that are stored in a parsing/extractions operations
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`memory and they describe how to determine at least one of the protocols used in a packet (the
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`FTP PORT command for instance) from the information stored in the parsing/extraction
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`operations memory. In addition, the parsing /extraction operations memory contains information
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`describing how to extract the source and destination ports and addresses along with the Layer 4
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`transport protocol and its associated settings. (See Exhibit 14, Sandvine Internet Traffic
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`Classification).
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`INFRINGEMENT OF U.S. PATENT NO. 6,651,099
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`Packet Intelligence realleges paragraphs 1 through 51 as though fully set forth
`
`52.
`
`herein.
`
`53.
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`Sandvine has infringed directly and continues to infringe directly at least claim 1
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`of the ’099 Patent by its manufacture, sale, offer for sale, and use of any one or more of the
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`Sandvine PTS Infringing Products. Sandvine is therefore liable for infringement of the ’099
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`Patent pursuant to 35 U.S.C. § 271.
`
`54.
`
`As of the time Sandvine first had notice of the ’099 Patent, which is no later than
`
`the filing date of this complaint, Sandvine indirectly infringed and continues to indirectly
`
`infringe at least claim 1 of the ’099 Patent by active inducement under 35 U.S.C. § 271(b).
`
`Sandvine has induced, caused, urged, encouraged, aided and abetted its direct and indirect
`
`customers to make, use, sell, offer for sale and/or import the PTS Infringing Products, and thus
`
`indirectly infringes at least claim 1 of the ’099 Patent. Sandvine has done so by acts including
`
`but not limited to selling such products including features that—when used or resold—infringe
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`the ’099 Patent; and by marketing the infringing capabilities of such products; and by providing
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`16
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`Case 2:16-cv-00147 Document 1 Filed 02/17/16 Page 17 of 27 PageID #: 17
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`instructions, technical support, and other support and encouragement for the use of such
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`products. Such conduct by Sandvine was intended to and actually did result in direct
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`infringement by Sandvine’s direct and indirect customers, including the making, using, selling,
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`offering for sale and/or importation of the PTS Infringing Products in the United States.
`
`55.
`
`As of the time Sandvine first had notice of the ’099 Patent, which is no later than
`
`the filing date of this complaint, Sandvine is a contributory infringer of at least claim 1 of the
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`’099 Patent under 35 U.S.C. § 271(c). Sandvine offers to sell and sells components, materials, or
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`apparatuses with or as part of its PTS Infringing Products that are specially made or adapted to
`
`examine packets passing through a connection point on a computer network in the manner
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`claimed in at least claim 1 of the ’099 Patent. The components, materials, or apparatuses
`
`provided by Sandvine with its PTS Infringing Products constitute a material part of the invention
`
`claimed within the ’099 Patent, are not staple articles, and have no substantial use that does not
`
`infringe the ’099 Patent.
`
`56.
`
`Sandvine’s infringement of the ’099 Patent has damaged Packet Intelligence, and
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`Sandvine is liable to Packet Intelligence in an amount to be determined at trial that compensates
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`Packet Intelligence for the infringement, which by law can be no less than a reasonable royalty.
`
`57.
`
`As a result of Sandvine’s infringement of the ’099 Patent, Packet Intelligence has
`
`suffered irreparable harm and will continue to suffer loss and injury unless Sandvine is enjoined
`
`by this Court.
`
`58.
`
`As of the time Sandvine first had notice of the ’099 Patent, which is no later than
`
`the filing date of this complaint, Sandvine has continued with its infringement despite the
`
`objectively high likelihood that its actions constitute infringement and Sandvine’s subjective
`
`knowledge of this obvious risk. As Sandvine has no good faith belief that it does not infringe the
`
`
`17
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`Case 2:16-cv-00147 Document 1 Filed 02/17/16 Page 18 of 27 PageID #: 18
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`’099 Patent, Sandvine’s infringement of the ’099 Patent is willful and deliberate, entitling Packet
`
`Intelligence to increased damages under 35 U.S.C. § 284 and to attorneys’ fees and costs
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`incurred in prosecuting this action under 35 U.S.C. § 285.
`
`INFRINGEMENT OF U.S. PATENT NO. 6,665,725
`
`Packet Intelligence realleges paragraphs 1 through 51 as though fully set forth
`
`59.
`
`herein.
`
`60.
`
`Sandvine has infringed directly and continues to infringe directly at least claim 17
`
`of the ’725 Patent by its manufacture, sale, offer for sale, and use of any one or more of the
`
`Sandvine PTS Infringing Products. Sandvine is therefore liable for infringement of the ’725
`
`Patent pursuant to 35 U.S.C. § 271.
`
`61.
`
`Sandvine first learned of the ’725 Patent no later than around July 25, 2005, when
`
`the USPTO mailed a Patent Examiner’s citation to the ’725 Patent during prosecution of
`
`Sandvine’s U.S. patent application 10/179,168 (“the ’168 application”). Packet Intelligence’s
`
`’725 patent is therefore listed as a prior art reference on the face of Sandvine patent 7,277,963,
`
`which issued from the ’168 application on October 2, 2007.
`
`62.
`
`As of the time Sandvine first had notice of the ’725 Patent, Sandvine indirectly
`
`infringed and continues to indirectly infringe at least claim 17 of the ’725 Patent by active
`
`inducement under 35 U.S.C. § 271(b). Sandvine has induced, caused, urged, encouraged, aided
`
`and abetted its direct and indirect customers to make, use, sell, offer for sale and/or import the
`
`PTS Infringing Products, and thus indirectly infringes at least claim 17 of the ’725 Patent.
`
`Sandvine has done so by acts including but not limited to selling such