Case 2:16-cv-00059 Document 1 Filed 01/17/16 Page 1 of 33 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`OPTIS CELLULAR TECHNOLOGY, LLC
`and PANOPTIS PATENT MANAGEMENT,
`LLC,
`
`Plaintiffs,
`
`v.
`
`KYOCERA COMMUNICATIONS, INC.,
`KYOCERA INTERNATIONAL, INC. and
`KYOCERA CORPORATION,
`
`Defendants.
`
`CIVIL ACTION NO.
`
`2:16-cv-59
`
`JURY TRIAL DEMANDED
`
`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiffs Optis Cellular Technology, LLC and PanOptis Patent Management, LLC,
`
`(collectively, “Plaintiffs” or “PanOptis”), file this Original Complaint for Patent
`
`Infringement under 35 U.S.C. § 271 against Kyocera Corporation, Kyocera
`
`Communications, Inc., and Kyocera International, Inc., (collectively, “Defendants” or
`
`“Kyocera”), and allege as follows:
`
`-1-
`
`IPR2020-00465
`APPLE v. OPTIS
`APPLE 1068
`
`

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`Case 2:16-cv-00059 Document 1 Filed 01/17/16 Page 2 of 33 PageID #: 2
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`THE PARTIES
`
`1.
`
`Plaintiff Optis Cellular Technology, LLC (“Optis Cellular”) is a limited
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`liability company organized and existing under the laws of the State of Delaware, and
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`maintains its principal place of business at 7160 Dallas Parkway, Suite 250, Plano, Texas
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`75024.
`
`2.
`
`Plaintiff PanOptis Patent Management, LLC (“PPM”) is a limited liability
`
`company organized and existing under the laws of the State of Delaware, and maintains its
`
`principal place of business at 7160 Dallas Parkway, Suite 250, Plano, Texas 75024.
`
`3.
`
`On information and belief, Defendant Kyocera Corporation (“Kyocera
`
`Corp.”) is a corporation organized and operating under the laws of the country of Japan
`
`with its principal place of business at 6 Takeda Tobadono-cho, Fushimi-ku, Kyoto, Japan.
`
`Kyocera Corp. manufactures, imports into the United States, sells and/or offers for sale in
`
`the United States mobile telephones for use in a mobile communications network. In
`
`addition, Kyocera Corp.’s mobile telephones for use in a mobile communications network
`
`are marketed, offered for sale, and/or sold throughout the United States, including within
`
`this District. Kyocera Corp. can be served with process by serving the Texas Secretary of
`
`State.
`
`4.
`
`On information and belief, Defendant Kyocera Communications, Inc.
`
`(“Kyocera Communications”) is a corporation organized under the laws of the state of
`
`Delaware with its principal place of business at 9520 Towne Centre Drive, San Diego, CA
`
`92121. Kyocera Communications manufactures, imports into the United States, sells
`
`and/or offers for sale in the United States mobile telephones for use in a mobile
`
`communications network. In addition, Kyocera Communications’ mobile telephones for
`
`use in a mobile communications network are marketed, offered for sale, and/or sold
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`throughout the United States, including within this District. Kyocera Communications can
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`be served with process through its registered service agent, Corporation Service Company
`
`d/b/a CSC-Lawyers Inco at 211 E. 7th Street, Suite 620, Austin, TX 78701.
`
`5.
`
`On information and belief, Defendant Kyocera International, Inc. (“Kyocera
`
`International”), is a corporation organized under the laws of the State of California with its
`
`principal place of business at 8611 Balboa Avenue, San Diego, CA 92123-1580. Kyocera
`
`International manufactures, imports into the United States, sells and/or offers for sale in the
`
`United States mobile telephones for use in a mobile communications network. In addition,
`
`Kyocera International’s mobile telephones for use in a mobile communications network
`
`are marketed, offered for sale, and/or sold throughout the United States, including within
`
`this District. Kyocera International can be served with process through its registered
`
`service agent, Corporation Service Company, d/b/a/ CSC – Lawyers Incorporating Service,
`
`2710 Gateway Oaks Drive, Suite 150N, Sacramento, CA 95833.
`
`JURISDICTION AND VENUE
`
`6.
`
`This is an action arising under the patent laws of the United States, 35
`
`U.S.C. § 101 et seq. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331
`
`1338(a), 2201, and 2202.
`
`7.
`
`Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b), (c) and
`
`(d) and 1400(b).
`
`8.
`
`This Court has personal jurisdiction over Defendants. Defendants have
`
`conducted and do conduct business within the State of Texas. Defendants, directly or
`
`through subsidiaries or intermediaries (including distributors, retailers, and others), ship,
`
`distribute, offer for sale, sell, and advertise (including the provision of an interactive web
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`page) their products and/or services in the United States, the State of Texas, and the
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`Eastern District of Texas. Defendants, directly and through subsidiaries or intermediaries
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`(including distributors, retailers, and others), have purposefully and voluntarily placed one
`
`or more of its infringing products and/or services, as described below, into the stream of
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`commerce with the expectation that they will be purchased and used by consumers in the
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`Eastern District of Texas. These infringing products and/or services have been and
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`continue to be purchased and used by consumers in the Eastern District of Texas.
`
`Defendants have committed acts of patent infringement within the State of Texas and,
`
`more particularly, within the Eastern District of Texas.
`
`THE PATENTS
`
`9.
`
`United States Letters Patent No. 8,019,332 (“the ’332 Patent”), entitled
`
`“Method for Transmitting and Receiving Control Information Through PDCCH,” was duly
`
`and legally issued after full and fair examination to inventors Dae Won Lee, Ki Jun Kim,
`
`Dong Wook Roh, Yu Jin Noh, Joon Kui Ahn and Jung Hoon Lee on September 13, 2011.
`
`Optis Cellular owns by assignment the entire right, title, and interest in the ’332 Patent, is
`
`entitled to sue for past and future infringement and possesses the right to license the ’332
`
`Patent, a copy of which is attached as Exhibit A.
`
`10.
`
`United States Letters Patent No. 8,102,833 (“the ’833 Patent”), entitled
`
`“Method for Transmitting Uplink Signals,” was duly and legally issued after full and fair
`
`examination to inventors Dae Won Lee, Bong Hoe Kim, Young Woo Yun, Ki Jun Kim,
`
`Dong Wook Roh, Hak Seong Kim and Hyun Wook Park on January 24, 2012. Optis
`
`Cellular owns by assignment the entire right, title, and interest in the ’833 Patent, is
`
`entitled to sue for past and future infringement and possesses the right to license the ’833
`
`Patent, a copy of which is attached as Exhibit B.
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`11.
`
`United States Letters Patent No. 8,437,293 (“the ’293 Patent”), entitled
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`“Methods and Systems for Scheduling Resources in a Telecommunication System,” was
`
`duly and legally issued after full and fair examination to inventors Kristina Jersenius,
`
`Henning Wiemann, Anna Larmo, Peter Moberg and Eva Englund on May 7, 2013. Optis
`
`Cellular owns by assignment the entire right, title, and interest in the ’293 Patent, is
`
`entitled to sue for past and future infringement and possesses the right to license the ’293
`
`Patent, a copy of which is attached as Exhibit C.
`
`12.
`
`United States Letters Patent No. 8,174,506 (“the ’506 Patent”), entitled
`
`“Method of Displaying Object and Terminal Capable of Implementing the Same,” was
`
`duly and legally issued after full and fair examination to inventors Tae Hun Kim, Boem
`
`Young Woo, Jeong Hyuk Yoon, Hyun Ju Ahn, Seung Sook Han, Jun Serk Park and Ho
`
`Sang Cheon on May 8, 2012. Optis Cellular owns by assignment the entire right, title, and
`
`interest in the ’506 Patent, is entitled to sue for past and future infringement and possesses
`
`the right to license the ’506 Patent, a copy of which is attached as Exhibit D.
`
`13.
`
`The ’332, ’833, ’293, and ’506 Patents (collectively, the “Asserted Patents”)
`
`are each valid and enforceable.
`
`14.
`
`By way of written agreement between PPM and Optis Cellular, PPM
`
`possesses the rights to negotiate and execute licenses for each of the Asserted Patents.
`
`FACTUAL BACKGROUND
`
`15.
`
`The Asserted Patents cover inventions relating to wireless communications,
`
`mobile telephones and other devices for use in a mobile communications network.
`
`16.
`
`The Defendants have imported into the United States, marketed, offered for
`
`sale and/or sold in the United States, mobile telephones and other devices for use in a
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`mobile communications network that infringe the Asserted Patents, or induce or contribute
`
`to the infringement of the Asserted Patents by others.
`
`17.
`
`The Defendants have been placed on actual notice of one or more of the
`
`Asserted Patents. The filing of this Complaint also constitutes notice in accordance with
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`35 U.S.C. § 287. Despite such notice, the Defendants continue to import into, market,
`
`offer for sale and/or sell in the United States products that infringe the Asserted Patents.
`
`18.
`
`The Defendants have, and continue to, directly and indirectly infringe the
`
`Asserted Patents by engaging in acts constituting infringement under 35 U.S.C. § 287(a),
`
`(b), (c), and/or (f), including but not necessarily limited to one or more of making, using,
`
`testing, selling and/or offering to sell, in this District and elsewhere in the United States,
`
`and importing into this District and elsewhere in the United States, certain infringing
`
`mobile communication devices, including but not limited to Defendants’ mobile phones,
`
`which incorporate the functionalities and compositions described in detail in Counts I-IV
`
`(collectively, “Kyocera Mobile Communication Devices”).
`
`19.
`
`The infringing Kyocera Mobile Communication Devices include, but are
`
`not limited to, DuraForce XD, Hydro VIEW, Hydro AIR, Hydro WAVE, DuraScout,
`
`DuraForce, Torque, TorqueXT, Brigadier, Hydro LIFE, Hydro ICON, Hydro VIBE, Hydro
`
`XTRM, Hydro ELITE, Hydro EDGE, Event, Rise, Jitterbug Touch, and all variations
`
`thereof.
`
`20.
`
`Defendants’ acts of infringement have caused damage to Plaintiffs.
`
`Plaintiffs are entitled to recover from Defendants the damages sustained by Plaintiffs as a
`
`result of Defendants’ wrongful acts.
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`PLAINTIFFS’ LTE STANDARDS-ESSENTIAL PATENTS
`
`21.
`
`Plaintiffs incorporate by reference paragraphs 1-20 as if fully set forth
`
`herein.
`
`22.
`
`The European Telecommunications Standards Institute (“ETSI”) is a
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`standard setting organization (“SSO”) that produces globally-accepted standards for the
`
`telecommunications industry. ETSI is an organizational partner of the Third Generation
`
`Partnership Project (“3GPP”), which maintains and develops globally applicable technical
`
`specifications for mobile systems, including the specifications for implementation and use
`
`of wireless communications for high-speed data referred to as the Long Term Evolution
`
`(“LTE”) Standards.
`
`23.
`
`Implementation and use of the LTE Standards, including but not limited to
`
`use of wireless communications for high-speed data compliant with the LTE specifications
`
`as detailed in the 3GPP specification series TS 36.101-36.978, has increased in recent
`
`years and continues to increase at a rapid pace.
`
`24.
`
`ETSI has developed and promulgated an IPR Policy (found at Annex 6 to
`
`the ETSI Rules of Procedure, published November 19, 2014). This policy is intended to
`
`strike a balance between the needs of standardization for public use in the field of
`
`telecommunications on the one hand, and the rights of IPR owners on the other hand.
`
`ETSI requires its members to disclose patents that “are or become, and remain
`
`ESSENTIAL to practice” its standards or technical specifications. Clause 15.6 of the ETSI
`
`IPR Policy defines the term “ESSENTIAL” to mean that “it is not possible on technical
`
`(but not commercial) grounds, taking into account normal technical practice and the state
`
`of the art generally available at the time of standardization, to make, sell, lease, otherwise
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`dispose of, repair, use or operate EQUIPMENT or METHODS which comply with a
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`STANDARD without infringing that IPR.”
`
`25.
`
`Optis Cellular is the assignee of numerous patents, originally assigned to
`
`either LG Electronics, Inc. (“LG”), Telefonaktiebolaget LM Ericsson (“Ericsson”) or
`
`Panasonic Corporation (“Panasonic”), that are, and remain, essential (as that term is
`
`defined by ETSI) to practicing the LTE Standards.
`
`26.
`
`LG, the original assignee of the ’833 and ’332 Patents, declared these
`
`patents as essential to practicing the LTE Standards. Optis Cellular, upon acquisition of
`
`the ’833 and ’332 Patents from LG, re-declared these patents as essential to practicing the
`
`LTE Standards, in conformance with ETSI’s IPR Policy.
`
`27.
`
`Ericsson, the original assignee of the ’293 Patent (collectively with the ’833
`
`and ’332 Patents, “LTE Essential Patents”), declared the patent as essential to practicing
`
`the LTE Standards. Optis Cellular, upon acquisition of the ’293 Patent from Ericsson, re-
`
`declared the patent to ETSI as essential to practicing the LTE Standards, in conformance
`
`with ETSI’s IPR Policy.
`
`28.
`
`Plaintiffs, in conformance with ETSI’s IPR Policy, have informed
`
`Defendants that Plaintiffs are prepared to grant Defendants an irrevocable license under the
`
`LTE Essential Patents on terms and conditions that are Fair, Reasonable and Non-
`
`Discriminatory (“FRAND”).
`
`29.
`
`Defendants require a license to Plaintiffs’ LTE Essential Patents because
`
`Kyocera Mobile Communication Devices are configured to, and do, operate in compliance
`
`with the LTE Standards, and thus infringe the LTE Essential Patents.
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`30.
`
`Plaintiffs have engaged in good-faith efforts to license Kyocera on FRAND
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`terms. On January 22, 2015, representatives from Plaintiffs, at their own expense, traveled
`
`from Texas to meet with Kyocera representatives in Yokohama, Japan. During that
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`meeting, Plaintiffs presented, in good faith, materials concerning Plaintiffs’ LTE Essential
`
`Patents, along with FRAND terms and conditions for a license under them. Defendants,
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`however, were not interested in taking a license and were openly contemptuous of
`
`Plaintiffs’ presentation and licensing overtures. Plaintiffs offered to provide Defendants
`
`with in-depth technical analysis, including patent claim charts and access to technical
`
`experts demonstrating the applicability of the LTE Essential Patents to Defendants’
`
`products, under the protection of a mutual non-disclosure and standstill agreement.
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`Plaintiffs’ mutual non-disclosure and standstill agreement was necessary, not only to
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`protect Plaintiffs’ proprietary technical information and analyses of patent claims from
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`potentially harmful disclosures or misuse by Defendants, but to also prevent Defendants
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`from filing preemptive declaratory judgment or similar actions using the proprietary and
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`confidential information provided by Plaintiffs. Such agreements are customary in the
`
`field and PanOptis has entered numerous agreements with other potential licensees without
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`incident. Defendants initially refused to consider such an agreement because they were
`
`unwilling to be restrained. . After initial refusals, Defendants eventually acquiesced to the
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`idea of such an agreement after Plaintiffs explained that it was a customary practice and
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`that Defendants’ refusal was peculiar. On February 9, 2015, Plaintiffs provided
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`Defendants via email with their standard mutual non-disclosure and standstill agreement
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`agreed to by other potential licensees, along with lists of all of Plaintiffs’ Standard-
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`Essential Patent assets worldwide. However, on February 20, 2015, Defendants returned a
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`copy of the agreement, striking in its entirety the provision that would have prevented
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`Defendants from using any of Plaintiffs’ confidential information to support a declaratory
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`judgment or other action to attack Plaintiffs’ patents. In light of Defendants’ continued
`
`and openly hostile behavior, it was clear that further negotiation was not possible.
`
`31.
`
`To date, Kyocera has not reciprocated Plaintiffs’ good-faith efforts.
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`Kyocera has instead resisted taking a license to Plaintiffs’ valuable intellectual property.
`
`32.
`
`Kyocera has been operating and continues to operate without a license to
`
`Plaintiffs’ LTE Essential Patents. Given Kyocera’s unwillingness to engage in meaningful
`
`licensing discussions, to license Plaintiffs’ LTE Essential Patents, or to cease infringing
`
`Plaintiffs’ patents, Plaintiffs have filed this lawsuit for the purpose of protecting their
`
`patent rights in the United States.
`
`COUNT I.
`
`CLAIM FOR PATENT INFRINGEMENT OF THE ’332 PATENT
`
`33.
`
`PanOptis repeats and realleges the allegations in paragraphs 1-32 as though
`
`fully set forth herein.
`
`34.
`
`Defendants have directly infringed and continue to directly infringe the
`
`’332 Patent by making, using, selling, offering for sale, or importing into the United States,
`
`or by intending that others make, use, import into, offer for sale, or sell in the United
`
`States, products and/or methods covered by one or more claims of the ’332 Patent
`
`including, but not limited to, mobile telephones. The accused wireless communication
`
`devices that infringe one or more claims of the ’332 Patent include, but are not limited to,
`
`at least the DuraForce XD, Hydro VIEW, Hydro AIR, Hydro WAVE, DuraScout,
`
`DuraForce, Torque, TorqueXT, Brigadier, Hydro LIFE, Hydro ICON, Hydro VIBE, Hydro
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`XTRM, and Hydro ELITE. Further discovery may reveal additional infringing products
`
`and/or models.
`
`35.
`
`Defendants have and continue to indirectly infringe the ’332 Patent by
`
`inducing infringement by others of one or more claims, in accordance with 35 U.S.C.
`
`§ 271(b) in this District and elsewhere in the United States.
`
`36.
`
`Kyocera received actual notice of the ’332 Patent at least as early as
`
`February 9, 2015, by way of correspondence that Optis Cellular sent to Kyocera.
`
`37.
`
`Kyocera, its manufacturers, resellers, distributors and end-users of the
`
`Kyocera Mobile Communication Devices have engaged in and currently engage in
`
`activities that constitute direct infringement of one or more claims of the ’332 Patent.
`
`38.
`
`For example and without limitation, operation and use of the Kyocera
`
`Mobile Communication Devices (including but not limited to the DuraForce XD, Hydro
`
`VIEW, Hydro AIR, Hydro WAVE, DuraScout, DuraForce, Torque, TorqueXT, Brigadier,
`
`Hydro LIFE, Hydro ICON, Hydro VIBE, Hydro XTRM, and Hydro ELITE), which
`
`incorporate functionalities and associated software and hardware components installed and
`
`configured by Kyocera in compliance with the LTE Standards, including but not limited to
`
`3GPP TS 36.201 Sections 1 and 4 and 3GPP TS 36.213 Section 9, infringe one or more
`
`claims of the ’332 Patent, including but not limited to claim 1.1 The use and operation of
`
`these Kyocera Mobile Communication Devices by Kyocera, its resellers, manufacturers, or
`
`end-user customers constitutes a direct infringement of one or more claims of the ’332
`
`Patent.
`
`
`1 PanOptis incorporates by reference its Disclosure of Asserted Claims and Infringement Contentions
`pursuant to Local Patent Rule 3-1.
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`39.
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`Kyocera’s affirmative acts of selling the Kyocera Mobile Communication
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`Devices, causing the Kyocera Mobile Communication Devices to be manufactured, and
`
`providing instruction manuals and support for the Kyocera Mobile Communication
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`Devices have induced and continue to induce Kyocera’s manufacturers, resellers, and end-
`
`users to make or use the Kyocera Mobile Communication Devices in their normal and
`
`customary way to infringe one or more claims of the ’332 Patent.
`
`40.
`
`Through its manufacture and sale of the Kyocera Mobile Communication
`
`Devices, Defendants specifically intend that Kyocera’s manufacturers, resellers and end-
`
`users directly infringe one or more claims of the ’332 Patent. Kyocera has knowledge of
`
`the ’332 Patent and actually induces others, such as resellers, manufacturers and end-use
`
`customers, to directly infringe by using, selling exporting, supplying and/or distributing
`
`within the United States Kyocera Communication Devices for resale to others, such as
`
`resellers and end-use customers. Kyocera is aware that such actions would induce actual
`
`infringement. Further, Defendants remain aware that these normal and customary
`
`activities would infringe the ’332 Patent.
`
`41.
`
`For example and without limitation, in connection with its sale, offering to
`
`sell, importation into the United States, and distributing within the United States of the
`
`Kyocera Mobile Communication Devices, Defendants willfully provide manuals and
`
`support to resellers and end-use customers regarding the use and operation of Kyocera’s
`
`products in a way that infringes one or more claims of the ’332 Patent. Specifically,
`
`Kyocera willfully provides manuals and support
`
`through sales of
`
`the Kyocera
`
`Communication Devices,
`
`through
`
`its website http://www.kyoceramobile.com/2, by
`
`
`2 For example, the Kyocera Hydro AIR manual is available at http://www.kyoceramobile.com/hydro-
`air/Hydro-AIR-User-Guide-ATT_en.pdf (last accessed December 3, 2015). Kyocera includes instructions to
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`telephone, and through other means of communication. When resellers and end-use
`
`customers follow such instructions and support, they directly infringe the ’332 Patent.
`
`Kyocera knows or should have known that by willfully providing such instructions and
`
`support, resellers and end-use customers follow those instructions and support, and directly
`
`infringe the ’332 Patent.
`
`42.
`
`Accordingly, Kyocera has performed and continues to perform the acts that
`
`constitute indirect infringement, and would induce actual infringement, with the
`
`knowledge of the ’332 Patent and with the knowledge or willful blindness to the fact that
`
`the induced acts would constitute infringement.
`
`43.
`
`Kyocera indirectly infringes one or more claims of the ’332 Patent by
`
`contributing to infringement by others, such as manufacturers, resellers and end-use
`
`customers, in accordance with 35 U.S.C. § 271(c) in this District and elsewhere in the
`
`United States.
`
`44.
`
`Direct infringement of one or more claims of the ’332 Patent is the result of
`
`activities performed by Kyocera, its manufacturers, resellers, distributors and end-users of
`
`the Kyocera Mobile Communication Devices.
`
`45.
`
`The Kyocera Mobile Communication Devices (including but not limited to
`
`the DuraForce XD, Hydro VIEW, Hydro AIR, Hydro WAVE, DuraScout, DuraForce,
`
`Torque, TorqueXT, Brigadier, Hydro LIFE, Hydro ICON, Hydro VIBE, Hydro XTRM, and
`
`Hydro ELITE), incorporate functionalities and associated software and hardware
`
`components installed and configured by Kyocera in compliance with the LTE Standards,
`
`including but not limited to 3GPP TS 36.201 Sections 1 and 4 and 3GPP TS 36.213
`
`
`a user or reseller of the Hydro AIR, and is aware that the ’332 Patent is infringed when those instructions are
`followed. Manuals and support for each of the infringing Kyocera Mobile Communications Devices are
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`Section 9, infringe one or more claims of the ’332 Patent, including but not limited to
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`claim 1.3 On information and belief, these functions and operations cannot work in an
`
`acceptable manner absent theses software and hardware components that Defendants
`
`configure, install, and include in the Kyocera Mobile Communication Devices for the
`
`purposes of performing such functions and operations. On information and belief,
`
`Kyocera has designed, configured, and installed such software and hardware to entice users
`
`of the Kyocera Mobile Communication Devices to use and operate these functionalities
`
`and to do so in a manner compliant with the LTE Standards.
`
`46.
`
`The software and hardware components installed and configured by
`
`Kyocera in compliance with the above LTE Standards, do not constitute a staple article or
`
`commodity of commerce. Moreover, use of the same is required for the operation of a
`
`Kyocera Mobile Communication Device. Any other use would be unusual, far-fetched,
`
`illusory, impractical, occasional, aberrant, or experimental.
`
`47.
`
`The software and hardware components installed and configured by
`
`Defendants in compliance with the above LTE Standards are each a material part of the
`
`invention of the ’332 Patent, are especially made for the infringing manufacture, sale and
`
`use of Kyocera Mobile Communication Devices, and have no substantial non-infringing
`
`uses.
`
`48.
`
`Accordingly, Defendants offer to sell, or sell within the United States a
`
`component of a patented machine, manufacture, combination, or composition, or a material
`
`or apparatus for use in practicing the ’332 Patent, constituting a material part of the
`
`invention, knowing the same to be especially made or especially adapted for use in an
`
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`available at www.kyoceramobile.com.
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`Case 2:16-cv-00059 Document 1 Filed 01/17/16 Page 15 of 33 PageID #: 15
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`infringement of such patent, and not a staple article or commodity of commerce suitable
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`for substantial non-infringing use. Defendants provide to others Kyocera Mobile
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`Communication Devices with distinct and separate components that have no substantial
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`non-infringing uses.
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`49.
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`Defendants’ continued infringement of the ’332 Patent has damaged and
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`will continue to damage PanOptis.
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`COUNT II.
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`CLAIM FOR PATENT INFRINGEMENT OF THE ’833 PATENT
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`50.
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`PanOptis repeats and realleges the allegations in paragraphs 1-49 as though
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`fully set forth herein.
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`51.
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`Defendants have directly infringed and continues to directly infringe the
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`’833 Patent by making, using, selling, offering for sale, or importing into the United States,
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`or by intending that others make, use, import into, offer for sale, or sell in the United
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`States, products and/or methods covered by one or more claims of the ’833 Patent
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`including, but not limited to, mobile telephones. The accused wireless communication
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`devices that infringe the one or more claims of the ’833 Patent include, but are not limited
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`to, at least the DuraForce XD, Hydro VIEW, Hydro AIR, Hydro WAVE, DuraScout,
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`DuraForce, Torque, TorqueXT, Brigadier, Hydro LIFE, Hydro ICON, Hydro VIBE, Hydro
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`XTRM, and Hydro ELITE. Further discovery may reveal additional infringing products
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`and/or models.
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`3 PanOptis incorporates by reference its Disclosure of Asserted Claims and Infringement Contentions
`pursuant to Local Patent Rule 3-1.
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`Case 2:16-cv-00059 Document 1 Filed 01/17/16 Page 16 of 33 PageID #: 16
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`52.
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`Defendants have and continue to indirectly infringe the ’833 Patent by
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`inducing infringement by others of one or more claims, in accordance with 35 U.S.C.
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`§ 271(b) in this District and elsewhere in the United States.
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`53.
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`Kyocera received actual notice of the ’833 Patent at least as early as
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`February 9, 2015, by way of correspondence that Optis Cellular sent to Kyocera.
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`54.
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`Kyocera, its manufacturers, resellers, distributors and end-users of the
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`Kyocera Mobile Communication Devices have engaged in and currently engage in
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`activities that constitute direct infringement of one or more claims of the ’833 Patent.
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`55.
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`For example and without limitation, operation and use of the Kyocera
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`Mobile Communication Devices (including but not limited to the DuraForce XD, Hydro
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`VIEW, Hydro AIR, Hydro WAVE, DuraScout, DuraForce, Torque, TorqueXT, Brigadier,
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`Hydro LIFE, Hydro ICON, Hydro VIBE, Hydro XTRM, and Hydro ELITE), which
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`incorporate functionalities and associated software and hardware components installed and
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`configured by Kyocera in compliance with the LTE Standards, including but not limited to
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`3GPP TS 36.201 Sections 1 and 4, and 3GPP TS 36.212 Section 5, infringe one or more
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`claims of the ’833 Patent, including but not limited to claim 1.4 The use and operation of
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`these Kyocera Mobile Communication Devices by Kyocera, its resellers, manufacturers, or
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`end-user customers constitutes a direct infringement of one or more claims of the ’833
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`Patent.
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`56.
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`Kyocera’s affirmative acts of selling the Kyocera Mobile Communication
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`Devices, causing the Kyocera Mobile Communication Devices to be manufactured, and
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`providing instruction manuals and support for the Kyocera Mobile Communication
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`4 PanOptis incorporates by reference its Disclosure of Asserted Claims and Infringement Contentions
`pursuant to Local Patent Rule 3-1.
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`-16-
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`Case 2:16-cv-00059 Document 1 Filed 01/17/16 Page 17 of 33 PageID #: 17
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`Devices have induced and continue to induce Kyocera’s manufacturers, resellers, and end-
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`users to make or use the Kyocera Mobile Communication Devices in their normal and
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`customary way to infringe one or more claims of the ’833 Patent.
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`57.
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`Through its manufacture and sale of the Kyocera Mobile Communication
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`Devices, Defendants specifically intend that Kyocera’s manufacturers, resellers and end-
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`users directly infringe one or more claims of the ’833 Patent. Kyocera has knowledge of
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`the ’833 Patent and actually induces others, such as resellers, manufacturers and end-use
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`customers, to directly infringe by using, selling exporting, supplying and/or distributing
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`within the United States Kyocera Communication Devices for resale to others, such as
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`resellers and end-use customers. Kyocera is aware that such actions would induce actual
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`infringement. Further, Defendants remain aware that these normal and customary
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`activities would infringe the ’833 Patent.
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`58.
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`For example and without limitation, in connection with its sale, offering to
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`sell, importation into the United States, and distributing within the United States of the
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`Kyocera Mobile Communication Devices, Defendants willfully provide manuals and
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`support to resellers and end-use customers regarding the use and operation of Kyocera’s
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`products in a way that infringes one or more claims of the ’833 Patent. Specifically,
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`Kyocera willfully provides manuals and support
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`through sales of
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`the Kyocera
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`Communication Devices,
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`through
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`its website http://www.kyoceramobile.com/5, by
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`telephone, and through other means of communication. When resellers and end-use
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`customers follow such instructions and support, they directly infringe the ’833 Patent.
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`5 For example, the Kyocera Hydro AIR manual is available at http://www.kyoceramobile.com/hydro-
`air/Hydro-AIR-User-Guide-ATT_en.pdf (last accessed December 3, 2015). Kyocera includes instructions to
`a user or reseller of the Hydro AIR, and is aware that the ’833 Patent is infringed when those instructions are
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`-17-
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`Case 2:16-cv-00059 Document 1 Filed 01/17/16 Page 18 of 33 PageID #: 18
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`Kyocera knows or should have known that by willfully providing such instructions and
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`support, resellers and end-use customers follow those instructions and support, and directly
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`infringe the ’833 Patent.
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`59.
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`Accordingly, Kyocera has performed