Case 2:15-cv-00300 Document 1 Filed 03/02/15 Page 1 of 36 PageID #: 1
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Civil Action No. 2:15-cv-300
`
`JURY TRIAL REQUESTED
`
`§§§§§§§§§
`
`OPTIS WIRELESS TECHNOLOGY,
`LLC and PANOPTIS PATENT
`MANAGEMENT, LLC,
`
`v.
`
`PLAINTIFFS,
`
`ZTE CORPORATION and ZTE (USA)
`INC.,
`
`DEFENDANTS.
`
`PLAINTIFFS OPTIS WIRELESS TECHNOLOGY, LLC’S and PANOPTIS
`PATENT MANAGEMENT, LLC’S COMPLAINT
`
`Plaintiffs Optis Wireless Technology, LLC and PanOptis Patent Management,
`
`LLC (together, “Plaintiffs” or “PanOptis”) file this Complaint for patent infringement
`
`under 35 U.S.C. § 271 against ZTE Corporation and ZTE (USA) Inc. (together, “ZTE”),
`
`and allege as follows:
`
`PARTIES
`Plaintiff Optis Wireless Technology, LLC (“Optis Wireless”) is a limited
`
`1.
`
`liability company organized and existing under the laws of the State of Delaware, and
`
`maintains its principal place of business at 7161 Bishop Road, Suite 200, Plano, Texas
`
`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 7161 Bishop Road, Suite 200, Plano, Texas 75024.
`
`3.
`
`Upon information and belief, Defendant ZTE Corporation is a corporation
`
`organized and existing under the laws of China with its principal place of business at
`
`IPR2020-00466
`APPLE v. OPTIS
`APPLE 1049
`
`

`

`Case 2:15-cv-00300 Document 1 Filed 03/02/15 Page 2 of 36 PageID #: 2
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`ZTE Plaza, Keji Road South, Hi-Tech Industrial Park, Nanshan District, Shenzhen,
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`Guangdong Province 518057, China, P.R.C.
`
`4.
`
`Upon information and belief, Defendant ZTE (USA) Inc. is a corporation
`
`organized and existing under the laws of the State of New Jersey and maintains its
`
`principal place of business at 2425 North Central Expressway, Suite 323, Richardson,
`
`Texas 75080.
`
`JURISDICTION AND VENUE
`This is an action for patent infringement under 35 U.S.C. § 271. This
`
`5.
`
`Court has exclusive subject matter jurisdiction over this case under 28 U.S.C. § 1338.
`
`6.
`
`7.
`
`Venue is proper in this Court pursuant to 28 U S.C. §§ 1391 and 1400(b).
`
`This Court has personal jurisdiction over ZTE. ZTE has conducted and
`
`conducts business within the State of Texas. ZTE, directly or through subsidiaries or
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`intermediaries (including distributors, retailers, and others), ships, distributes, offers for
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`sale, sells, and advertises (including the provision of an interactive web page) its products
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`(including its infringing products) and/or services in the United States, the State of Texas,
`
`and the Eastern District of Texas.
`
`8.
`
`ZTE, directly and through subsidiaries or intermediaries (including
`
`distributors, retailers, and others), has purposefully and voluntarily placed one or more of
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`its infringing products and/or services, as described below, into the stream of commerce
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`with the expectation that they will be purchased and used by consumers in the Eastern
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`District of Texas. These infringing products and/or services have been and continue to be
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`purchased and used by consumers in the Eastern District of Texas.
`
`9.
`
`ZTE has committed acts of patent infringement within the State of Texas
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`and, more particularly, within the Eastern District of Texas.
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`
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`2
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`THE ASSERTED PATENTS AND INFRINGING INSTRUMENTALITIES
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`10.
`
`On November 22, 2011, U.S. Patent No. 8,064,919 (“’919 Patent”),
`
`entitled “Radio Communication Base Station Device and Control Channel Arrangement
`
`Method” was duly and legally issued after full and fair examination, with Masaru
`
`Fukuoka, Akihiko Nishio, Seigo Nakao, and Alexander Golitschek Edler Von Elbwart as
`
`the named inventors. Optis Wireless owns all rights, title, and interest in and to the ’919
`
`Patent, possesses all rights of recovery (including recovery for past damages) under the
`
`’919 Patent, and possesses the right to license the ’919 Patent.
`
`11.
`
`On June 12, 2012, U.S. Patent No. 8,199,792 (“’792 Patent”), entitled
`
`“Radio Communication Apparatus and Response Signal Spreading Method” was duly
`
`and legally issued after full and fair examination, with Seigo Nakao, Daichi Imamura,
`
`Akihiko Nishio, and Masayuki Hoshino as the named inventors. Optis Wireless owns all
`
`rights, title, and interest in and to the ’792 Patent, possesses all rights of recovery
`
`(including recovery for past damages) under the ’792 Patent, and possesses the right to
`
`license the ’792 Patent.
`
`12.
`
`On April 2, 2013, U.S. Patent No. 8,411,557 (“’557 Patent”), entitled
`
`“Mobile Station Apparatus and Random Access Method” was duly and legally issued
`
`after full and fair examination, with Daichi Imamura, Sadaki Futagi, Atsushi Matsumoto,
`
`Takashi Iwai, and Tomofumi Takata as the named inventors. Optis Wireless owns all
`
`rights, title, and interest in and to the ’557 Patent, possesses all rights of recovery
`
`(including recovery for past damages) under the ’557 patent, and possesses the right to
`
`license the ’557 Patent.
`
`13.
`
`On March 12, 2002, U.S. Patent No. 6,356,631 (“’631 Patent”), entitled
`
`“Multi-Client Object Oriented Interface Layer,” was duly and legally issued after full and
`
`
`
`
`3
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`

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`Case 2:15-cv-00300 Document 1 Filed 03/02/15 Page 4 of 36 PageID #: 4
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`fair examination, with Shankarnarayan Krishnan as the named inventor. Optis Wireless
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`owns all rights, title, and interest in and to the ’631 Patent, possesses all rights of
`
`recovery (including recovery for past damages) under the ’631 Patent, and possesses the
`
`right to license the ’631 Patent.
`
`14.
`
`On March 8, 2005, U.S. Patent No. 6,865,191 (“’191 Patent”), entitled
`
`“System and Method for Sending Multimedia Attachments to Text Messages in
`
`Radiocommunication Systems” was duly and legally issued after full and fair
`
`examination, with Henrik Bengtsson and Ivan Medved as the named inventors. Optis
`
`Wireless owns all rights, title, and interest in and to the ’191 Patent, possesses all rights
`
`of recovery (including recovery for past damages) under the ’191 patent, and possesses
`
`the right to license the ’191 Patent.
`
`15.
`
`The ’919, ’792, ’557, ’631, and ’191 Patents (collectively, “Asserted
`
`Patents”) are each valid and enforceable.
`
`16.
`
`By way of written agreement between PPM and Optis Wireless, PPM
`
`possesses the rights to negotiate and execute licenses for each of the Asserted Patents.
`
`17.
`
`ZTE has directly and indirectly infringed and continues to directly and
`
`indirectly infringe the Asserted Patents by engaging in acts constituting infringement
`
`under 35 U.S.C. § 271(a), (b), (c), and/or (f), including but not necessarily limited to one
`
`or more of making, using, testing, selling and 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 ZTE’s mobile phones, tablets, wireless hotspots, and wireless routers which
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`4
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`incorporate the functionalities and compositions described in detail in Counts I-V
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`(collectively, “ZTE Mobile Communication Devices”).
`
`18.
`
`The infringing ZTE Mobile Communication Devices include, but are not
`
`limited to, UNICO LTE, Anthem™ 4G, Avid™ 4G, Max™, Warp 4G, Compel™,
`
`Flash™, Force, Grand S Pro™, Grand X Max +, Grand X LTE, Imperial™, Imperial™
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`II, Nubia 5S mini LTE, Overture™, Rapido LTE, Source™, Speed™, Supreme™,
`
`Vital™, Warp Sync™, Z998, ZMAX™, Home Base™/Home Base™ (GoPhone),
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`Pocket WiFi, LivePro™, 4G LTE Hotspot Z915, Sonic 2.0 Mobile Hotspot LTE,
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`Unite™, Unite™ II, Velocity™, JetPack™ 890L, and 4G LTE™ Router with Voice,
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`and all versions and variations thereof.
`
`19.
`
`ZTE’s acts of infringement have caused damage to Plaintiffs. Plaintiffs
`
`are entitled to recover from ZTE the damages sustained by Plaintiffs as a result of ZTE’s
`
`wrongful acts.
`
`PLAINTIFFS’ LTE STANDARDS ESSENTIAL PATENTS
`
`20.
`
`Plaintiffs incorporate by reference paragraphs 1-19 as if fully set forth
`
`herein.
`
`21.
`
`The European Telecommunications Standards Institute (ETSI) is a
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`standard setting organization (SSO) that produces globally-accepted standards for the
`
`telecommunication 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) standard.
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`
`
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`5
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`22.
`
`Implementation and use of the LTE standard, including but not limited to
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`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.
`
`23.
`
`ETSI has developed and promulgated an IPR Policy (found at Annex 6 to
`
`the ESTI 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,
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`otherwise dispose of, repair, use or operate EQUIPMENT or METHODS which comply
`
`with a STANDARD without infringing that IPR.”
`
`24.
`
`Optis Wireless is the assignee of numerous patents, originally assigned to
`
`either Telefonaktiebolaget LM Ericsson (“Ericsson”) or Panasonic Corporation
`
`(“Panasonic”), that are, and remain, essential (as that term is defined by ETSI) to
`
`practicing the LTE Standard.
`
`25.
`
`Panasonic, the original assignee of the ’919, ’792, and ’557 Patents (“LTE
`
`Essential Patents”), declared these patents as essential to practicing the LTE Standards.
`
`Optis Wireless, upon acquisition of the ’919, ’792, and ’557 Patents from Panasonic, re-
`
`
`
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`6
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`Case 2:15-cv-00300 Document 1 Filed 03/02/15 Page 7 of 36 PageID #: 7
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`declared these patents to ETSI as essential to practicing the LTE Standard, in
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`conformance with ETSI’s IPR Policy.
`
`26.
`
`Plaintiffs, in conformance with ETSI’s IPR Policy, have informed ZTE
`
`that Plaintiffs are prepared to grant ZTE an irrevocable license under the LTE Essential
`
`Patents on terms and conditions that are Fair, Reasonable, and Non-discriminatory
`
`(“FRAND”).
`
`27.
`
`ZTE requires a license to Plaintiffs’ LTE Essential Patents because ZTE’s
`
`Mobile Communication Devices are configured to, and do, operate in compliance with
`
`the LTE Standards, and thus infringe the LTE Essential Patents.
`
`28.
`
`Since April 2, 2014, Plaintiffs have been engaged in good faith efforts to
`
`license ZTE on FRAND terms. Between May 2014 and December 2014, representatives
`
`from Plaintiffs, at their own expense, traveled and met face-to-face with ZTE
`
`representatives six times in various locations throughout Asia, including Xian, China;
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`Shenzhen, China; Hong Kong; and Seoul, South Korea. During those meetings, Plaintiffs
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`presented, in good faith, material concerning Plaintiffs’ LTE Essential Patents, along with
`
`FRAND terms for the LTE Essential Patents. In addition to meeting with ZTE numerous
`
`times in Asia, Plaintiffs have initiated and exchanged written correspondence with ZTE
`
`and have contacted ZTE by phone on numerous occasions. Plaintiffs have also provided
`
`ZTE with a number of exemplary claim charts showing infringement by ZTE’s products
`
`that are configured to operate in compliance with the LTE Standards.
`
`29.
`
`To date, ZTE has not reciprocated Plaintiffs’ good faith efforts. ZTE
`
`instead has resisted taking a license to Plaintiffs’ valuable intellectual property. Most
`
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`7
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`Case 2:15-cv-00300 Document 1 Filed 03/02/15 Page 8 of 36 PageID #: 8
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`recently, ZTE rebuffed Plaintiffs’ recent attempts to hold another face-to-face meeting in
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`China this past January.
`
`30.
`
`ZTE has been operating and continues to operate without a license to
`
`Plaintiffs’ LTE Essential Patents. Given ZTE’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
`INFRINGEMENT OF THE ’919 PATENT BY ZTE
`
`31.
`
`Plaintiffs incorporate by reference paragraphs 1-30 as if fully set forth
`
`herein.
`
`32.
`
`ZTE has directly infringed and continues to directly infringe the ’919
`
`Patent by making, using, testing, selling, offering for sale, importing into the United
`
`States, distributing within the United States, and/or exporting the ZTE Mobile
`
`Communication Devices that comprise mobile stations capable of determining a response
`
`signal resource, including but not limited to UNICO LTE, Anthem™ 4G, Avid™ 4G,
`
`Max™, Warp 4G, Compel™, Flash™, Force, Grand S Pro™, Grand X Max +, Grand X
`
`LTE, Imperial™, Imperial™ II, Nubia 5S mini LTE, Overture™, Rapido LTE,
`
`Source™, Speed™, Supreme™, Vital™, Warp Sync™, Z998, ZMAX™, Home
`
`Base™/Home Base™ (GoPhone), Pocket WiFi, LivePro™, 4G LTE Hotspot Z915,
`
`Sonic 2.0 Mobile Hotspot LTE, Unite™, Unite™ II, Velocity™, JetPack™ 890L, and
`
`4G LTE™ Router with Voice.
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`
`
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`8
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`

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`33.
`
`ZTE has and continues to indirectly infringe the ’919 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.
`
`34.
`
`ZTE received actual notice of the ’919 Patent at least as early as July 18,
`
`2014, by way of correspondence that Optis Wireless sent to ZTE.
`
`35.
`
`ZTE, its manufacturers, resellers, distributors, and end-users of the ZTE
`
`Mobile Communication Devices have engaged in and currently engage in activities that
`
`constitute direct infringement of one or more claims of the ’919 Patent.
`
`36.
`
`For example and without limitation, operation and use of the ZTE Mobile
`
`Communication Devices (including but not limited to UNICO LTE, Anthem™ 4G,
`
`Avid™ 4G, Max™, Warp 4G, Compel™, Flash™, Force, Grand S Pro™, Grand X Max
`
`+, Grand X LTE, Imperial™, Imperial™ II, Nubia 5S mini LTE, Overture™, Rapido
`
`LTE, Source™, Speed™, Supreme™, Vital™, Warp Sync™, Z998, ZMAX™, Home
`
`Base™/Home Base™ (GoPhone), Pocket WiFi, LivePro™, 4G LTE Hotspot Z915,
`
`Sonic 2.0 Mobile Hotspot LTE, Unite™, Unite™ II, Velocity™, JetPack™ 890L, and
`
`4G LTE™ Router with Voice), which incorporate functionalities and associated software
`
`and hardware components installed and configured by ZTE for the function and operation
`
`of determining a response signal resource in compliance with the LTE Standards,
`
`infringes one or more claims of the ’919 Patent. The use and operation of these ZTE
`
`Mobile Communication Devices by ZTE, its resellers, manufacturers, or end-user
`
`customers constitutes a direct infringement of one or more claims of the ’919 Patent.
`
`37.
`
`ZTE’s affirmative acts of selling the ZTE Mobile Communication Devices,
`
`causing the ZTE Mobile Communication Devices to be manufactured, and providing
`
`
`
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`9
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`instruction manuals and support for the ZTE Mobile Communication Devices have
`
`induced and continue to induce ZTE’s manufacturers, resellers, and end-users to make or
`
`use the ZTE Mobile Communication Devices in their normal and customary way to
`
`infringe one or more claims of the ’919 Patent.
`
`38.
`
`Through its manufacture and sale of ZTE Mobile Communication Devices,
`
`ZTE specifically intends that its manufacturers, resellers, and end-users directly infringe
`
`one or more claims of the ʼ919 Patent. ZTE has knowledge of the ’919 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 ZTE Communication Devices for resale to others, such as resellers and
`
`end-use customers. ZTE is aware that such actions would induce actual infringement.
`
`Further, ZTE remains aware that these normal and customary activities would infringe
`
`the ʼ919 Patent.
`
`39.
`
`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
`
`ZTE Mobile Communication Devices, ZTE willfully provides manuals and support to
`
`resellers and end-use customers regarding the use and operation of ZTE’s products in a
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`way that infringes one or more claims of the ’919 patent. Specifically, ZTE willfully
`
`provides manuals and support through sales of the ZTE Communication Devices, through
`
`its website www.zteusa.com1, by telephone, and through other means of communication.
`
`
`1 For one example, the ZTE “Grand Max X+” manual is available at
`http://www.zteusa.com/media/wysiwyg/grand-
`maxplus/ZTE_Grand_X_Max_User_Guide_English_-_PDF_-_3.16MB_.pdf (last
`accessed February 26, 2015). ZTE includes instructions to a user or reseller of the Grand
`Max X +, and is aware that the ’919 Patent is infringed when those instructions are
`
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`10
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`When resellers and end-use customers follow such instructions and support, they directly
`
`infringe the ’919 Patent. ZTE knows or should know that by willfully providing such
`
`instructions and support, resellers and end-use customers follow those instructions and
`
`support, and directly infringe the ’919 Patent.
`
`40.
`
`Accordingly, ZTE has performed and continues to perform the acts that
`
`constitute induced infringement, and would induce actual infringement, with the
`
`knowledge of the ’919 Patent and with the knowledge or willful blindness to the fact that
`
`the induced acts would constitute infringement.
`
`41.
`
`ZTE indirectly infringes one or more claims of the ’919 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.
`
`42.
`
`Direct infringement of one or more claims of the ’919 Patent is the result
`
`of activities performed by ZTE, its manufacturers, resellers, distributors, and end-users of
`
`the ZTE Mobile Communication Devices.
`
`43.
`
`The ZTE Mobile Communication Devices (including but not limited to
`
`UNICO LTE, Anthem™ 4G, Avid™ 4G, Max™, Warp 4G, Compel™, Flash™, Force,
`
`Grand S Pro™, Grand X Max +, Grand X LTE, Imperial™, Imperial™ II, Nubia 5S
`
`mini LTE, Overture™, Rapido LTE, Source™, Speed™, Supreme™, Vital™, Warp
`
`Sync™, Z998, ZMAX™, Home Base™/Home Base™ (GoPhone), Pocket WiFi,
`
`LivePro™, 4G LTE Hotspot Z915, Sonic 2.0 Mobile Hotspot LTE, Unite™, Unite™ II,
`
`Velocity™, JetPack™ 890L, and 4G LTE™ Router with Voice), incorporate
`
`
`followed. Manuals and support for each of the infringing ZTE Mobile Communications
`Devices are available at www.zteusa.com.
`
`
`
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`11
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`functionalities and associated software and hardware components installed and
`
`configured by ZTE for the function and operation of determining a response signal
`
`resource in compliance with the LTE Standards. On information and belief, these
`
`functions and operations cannot work in an acceptable manner absent these software and
`
`hardware components that ZTE configures, installs, and includes in the ZTE Mobile
`
`Communication Devices for the purposes of performing such functions and operations.
`
`On information and belief, ZTE has designed, configured, and installed such software
`
`and hardware to entice users of the ZTE Mobile Communications Devices to use and
`
`operate these functionalities and to do so in a manner compliant with the LTE Standards.
`
`44.
`
`The software and hardware components installed and configured by ZTE
`
`for the function and operation of determining a response signal resource in compliance
`
`with the LTE Standards, do not constitute a staple article or commodity of commerce.
`
`Moreover, use of the same is required for the operation of a ZTE Mobile Communication
`
`Device. Any other use would be unusual, far-fetched, illusory, impractical, occasional,
`
`aberrant, or experimental.
`
`45.
`
`The software and hardware components installed and configured by ZTE
`
`for the function and operation of determining a response signal resource in compliance
`
`with the LTE Standards are each a material part of the invention of the ’919 Patent, are
`
`especially made for the infringing manufacture, sale, and use of ZTE Mobile
`
`Communication Devices, and have no substantial non-infringing uses.
`
`46.
`
`Accordingly, ZTE offers to sell, or sells within the United States a
`
`component of a patented machine, manufacture, combination, or composition, or a
`
`material or apparatus for use in practicing the ’919 Patent, constituting a material part of
`
`
`
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`12
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`the invention, knowing the same to be especially made or especially adapted for use in an
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`infringement of such patent, and not a staple article or commodity of commerce suitable
`
`for substantial non-infringing use. ZTE provides to others ZTE Mobile Communication
`
`Devices with distinct and separate components which have no substantial non-infringing
`
`uses.
`
`COUNT II
`INFRINGEMENT OF THE ’792 PATENT BY ZTE
`
`47.
`
`Plaintiffs incorporate by reference paragraphs 1-46 as if fully set forth
`
`herein.
`
`48.
`
`ZTE has directly infringed and continues to directly infringe the ’792
`
`Patent by making, using, testing, selling, offering for sale, importing into the United
`
`States, distributing within the United States, and/or exporting the ZTE Mobile
`
`Communication Devices that comprise radio communications apparatuses which operate
`
`and/or are configured to operate to spread response signals, including but not limited to
`
`UNICO LTE, Anthem™ 4G, Avid™ 4G, Max™, Warp 4G, Compel™, Flash™, Force,
`
`Grand S Pro™, Grand X Max +, Grand X LTE, Imperial™, Imperial™ II, Nubia 5S
`
`mini LTE, Overture™, Rapido LTE, Source™, Speed™, Supreme™, Vital™, Warp
`
`Sync™, Z998, ZMAX™, Home Base™/Home Base™ (GoPhone), Pocket WiFi,
`
`LivePro™, 4G LTE Hotspot Z915, Sonic 2.0 Mobile Hotspot LTE, Unite™, Unite™ II,
`
`Velocity™, JetPack™ 890L, and 4G LTE™ Router with Voice.
`
`49.
`
`ZTE has and continues to indirectly infringe the ’792 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.
`
`
`
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`13
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`Case 2:15-cv-00300 Document 1 Filed 03/02/15 Page 14 of 36 PageID #: 14
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`50.
`
`ZTE received actual notice of the ’792 patent at least as early as July 18,
`
`2014, by way of correspondence that Optis Wireless sent to ZTE. .
`
`51.
`
`ZTE, its manufacturers, resellers, distributors, and end-users of the ZTE
`
`Mobile Communication Devices have engaged in and currently engage in activities that
`
`constitute direct infringement of one or more claims of the ’792 patent.
`
`52.
`
`For example and without limitation, operation and use of the ZTE Mobile
`
`Communication Devices (including but not limited to UNICO LTE, Anthem™ 4G,
`
`Avid™ 4G, Max™, Warp 4G, Compel™, Flash™, Force, Grand S Pro™, Grand X Max
`
`+, Grand X LTE, Imperial™, Imperial™ II, Nubia 5S mini LTE, Overture™, Rapido
`
`LTE, Source™, Speed™, Supreme™, Vital™, Warp Sync™, Z998, ZMAX™, Home
`
`Base™/Home Base™ (GoPhone), Pocket WiFi, LivePro™, 4G LTE Hotspot Z915,
`
`Sonic 2.0 Mobile Hotspot LTE, Unite™, Unite™ II, Velocity™, JetPack™ 890L, and
`
`4G LTE™ Router with Voice), which incorporate functionalities and associated software
`
`and hardware components installed and configured by ZTE for the functions and
`
`operations of spreading response signals in compliance with the LTE Standards, infringes
`
`one or more claims of the ’792 Patent. The use and operation of these ZTE Mobile
`
`Communication Devices by ZTE, its resellers, manufacturers, or end-user customers
`
`constitutes a direct infringement of one or more claims of the ’792 Patent.
`
`53.
`
`ZTE’s affirmative acts of selling the ZTE Mobile Communication Devices,
`
`causing the ZTE Mobile Communication Devices to be manufactured, and providing
`
`instruction manuals and support for the ZTE Mobile Communication Devices have
`
`induced and continue to induce ZTE’s manufacturers, resellers, and end-users to make or
`
`
`
`
`14
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`Case 2:15-cv-00300 Document 1 Filed 03/02/15 Page 15 of 36 PageID #: 15
`
`use the ZTE Mobile Communication Devices in their normal and customary way to
`
`infringe the ’792 Patent.
`
`54.
`
`Through its manufacture and sale of ZTE Mobile Communication Devices,
`
`ZTE specifically intends that its manufacturers, resellers, and end-users directly infringe
`
`one or more claims of the ʼ792 Patent. ZTE has knowledge of the ’792 Patent and
`
`actually induces others, such as resellers, manufacturers and end-use customers, to
`
`directly infringe, by using, making, selling, exporting, supplying and/or distributing
`
`within the United States ZTE Communication Devices for resale to others, such as
`
`resellers and end-use customers. ZTE is aware that such actions would induce actual
`
`infringement. Further, ZTE remains aware that these normal and customary activities
`
`would infringe the ʼ792 Patent.
`
`55.
`
`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
`
`ZTE Mobile Communication Devices, ZTE willfully provides manuals and support to
`
`resellers and end-use customers regarding the use and operation of ZTE’s products in a
`
`way that infringes the ’792 Patent. ZTE willfully provides manuals and support through
`
`sales of the ZTE Communication Devices, through its website www.zteusa.com2, by
`
`telephone, and through other means of communication. When resellers and end-use
`
`customers follow such instructions and support, they directly infringe the ’792 Patent.
`
`
`2 For one example, the ZTE “Grand Max X+” manual is available at
`http://www.zteusa.com/media/wysiwyg/grand-
`maxplus/ZTE_Grand_X_Max_User_Guide_English_-_PDF_-_3.16MB_.pdf (last
`accessed February 26, 2015). ZTE includes instructions to a user or reseller of the Grand
`Max X + and is aware that the ’792 Patent is infringed when those instructions are
`followed. Manuals and support for each of the infringing ZTE Mobile Communications
`Devices are available at www.zteusa.com.
`
`
`
`
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`Case 2:15-cv-00300 Document 1 Filed 03/02/15 Page 16 of 36 PageID #: 16
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`ZTE knows or should know that by willfully providing such instructions and support,
`
`resellers and end-use customers follow those instructions and support, and directly
`
`infringe the ’792 Patent.
`
`56.
`
`Accordingly, ZTE has performed and continues to perform the acts that
`
`constitute induced infringement, and would induce actual infringement, with the
`
`knowledge of the ’792 Patent and with the knowledge or willful blindness to the fact that
`
`the induced acts would constitute infringement.
`
`57.
`
`ZTE indirectly infringes one or more claims of the ’792 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.
`
`58.
`
`Direct infringement of one or more claims of the ’792 Patent is the result
`
`of activities performed by ZTE, its manufacturers, resellers, distributors, and end-users of
`
`the ZTE Mobile Communication Devices.
`
`59.
`
`ZTE Mobile Communication Devices (including but not limited to
`
`UNICO LTE, Anthem™ 4G, Avid™ 4G, Max™, Warp 4G, Compel™, Flash™, Force,
`
`Grand S Pro™, Grand X Max +, Grand X LTE, Imperial™, Imperial™ II, Nubia 5S
`
`mini LTE, Overture™, Rapido LTE, Source™, Speed™, Supreme™, Vital™, Warp
`
`Sync™, Z998, ZMAX™, Home Base™/Home Base™ (GoPhone), Pocket WiFi,
`
`LivePro™, 4G LTE Hotspot Z915, Sonic 2.0 Mobile Hotspot LTE, Unite™, Unite™ II,
`
`Velocity™, JetPack™ 890L, and 4G LTE™ Router with Voice), incorporate
`
`functionalities and associated software and hardware components installed and
`
`configured by ZTE for the functions and operations of spreading response signals in
`
`
`
`
`16
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`

`Case 2:15-cv-00300 Document 1 Filed 03/02/15 Page 17 of 36 PageID #: 17
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`compliance with the LTE Standards. On information and belief, these functions and
`
`operations cannot work in an acceptable manner absent these software and hardware
`
`components ZTE configures, installs, and includes in the ZTE Mobile Communication
`
`Devices for the purposes of performing such functions and operations. On information
`
`and belief, ZTE has designed, configured, and installed such software and hardware to
`
`entice users of the ZTE Mobile Communications Devices to use and operate these
`
`functions and to do so in a manner compliant with the LTE Standards.
`
`60.
`
`The software and hardware components installed and configured by ZTE
`
`for the functions and operations of spreading response signals in compliance with the
`
`LTE Standards that are incorporated in the ZTE Mobile Communication Devices do not
`
`constitute a staple article or commodity of commerce. Moreover, use of the same is
`
`required for the operation of a ZTE Mobile Communication Device. Any other use
`
`would be unusual,
`
`far-fetched,
`
`illusory,
`
`impractical, occasional, aberrant, or
`
`experimental.
`
`61.
`
`The software and hardware components installed and configured by ZTE
`
`for the functions and operations of spreading response signals in compliance with the
`
`LTE Standards are each a material part of the invention of the ’792 Patent, are especially
`
`made for the infringing manufacture, sale, and use of ZTE Mobile Communication
`
`Devices, and have no substantial non-infringing uses.
`
`62.
`
`Accordingly, ZTE offers to sell, or sells within the United States a
`
`component of a patented machine, manufacture, combination, or composition, or a
`
`material or apparatus for use in practicing the ’792 Patent, constituting a material part of
`
`the invention, knowing the same to be especially made or especially adapted for use in an
`
`
`
`
`17
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`Case 2:15-cv-00300 Document 1 Filed 03/02/15 Page 18 of 36 PageID #: 18
`
`infringement of such patent, and not a staple article or commodity of commerce suitable
`
`for substantial non-infringing use. ZTE provides to others ZTE Mobile Communication
`
`Devices with distinct and separate components which have no substantial non-infringing
`
`uses.
`
`COUNT III
`INFRINGEMENT OF THE ’557 PATENT BY ZTE
`
`63.
`
`Plaintiffs incorporate by reference paragraphs 1-62 as if fully set forth
`
`herein.
`
`64.
`
`ZTE has been and is currently directly infringing the ’557 Patent by
`
`making, using, testing, selling, offering for sale, importing into the United States,
`
`distributing within the United States, and/or exporting the ZTE Mobile Communication
`
`Devices which comprise mobile stations which operate and/or are configured to operate a
`
`random access method, including but not limited to UNICO LTE, Anthem™ 4G, Avid™
`
`4G, Max™, Warp 4G, Compel™, Flash™, Force, Grand S Pro™, Grand X Max +,
`
`Grand X LTE, Imperial™, Imperial™ II, Nubia 5S mini LTE, Overture™, Rapido LTE,
`
`Source™, Speed™, Supreme™, Vital™, Warp Sync™, Z998, ZMAX™, Home
`
`