Case 1:19-cv-00553-UNA Document 1 Filed 03/22/19 Page 1 of 13 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
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`SYNKLOUD TECHNOLOGIES, LLC
`
`
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`
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`BLU PRODUCTS, INC.
`
`
`
`Plaintiff,
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`v.
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`Defendant.
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`
`
`C.A. No. ______________________
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`JURY TRIAL DEMANDED
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff SynKloud Technologies, LLC (“SynKloud” or “Plaintiff”), for its Complaint
`
`against BLU Products, Inc. (“BLU” or “Defendant”) alleges the following:
`
`NATURE OF THE ACTION
`
`1.
`
`This is an action for patent infringement of United States Patent Nos. 9,098,526
`
`(“the ’526 Patent”), 9,219,780 (“the ’780 Patent”), and 10,015,254 (“the ’254 Patent” and
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`collectively with the ’526 and ’780 Patents, the “Patents-in-Suit”) arising under the Patent Laws
`
`of the United States, 35 U.S.C. § 1 et seq., seeking damages and other relief under 35 U.S.C. §
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`281 et seq.
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`THE PARTIES
`
`2.
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`Plaintiff is a limited liability company organized under the laws of the State of
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`Delaware with a place of business at 124 Broadkill Road, Suite 415, Milton, DE 19968.
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`3.
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`On information and belief, Defendant is a corporation organized under the laws of
`
`Delaware with a place of business at 10814 NW 33rd Street, Doral, Florida 33172. The Delaware
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`Division of Corporations identifies Defendant’s registered agent in Delaware as The Company
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`Corporation, 251 Little Falls Drive, Wilmington, Delaware 19808.
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`4.
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`On information and belief, Defendant sells and offers to sell products and services
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`throughout the United States, including in this District, and introduces products and services into
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`the stream of commerce and that incorporate infringing technology knowing that it would be sold
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`in this District and elsewhere in the United States.
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`5.
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`On information and belief, Defendant conducts a significant, persistent and regular
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`amount of business in this District through product sales by its distributors and resellers and
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`through online marketing, and derives substantial revenue from such business.
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`JURISDICTION AND VENUE
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`6.
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`This is an action for patent infringement arising under the Patent Laws of the
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`United States, Title 35 of the United States Code.
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`7.
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`8.
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`This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a).
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`Venue is proper in this District under 28 U.S.C. §§ 1391(b), (c) and/or 1400(b).
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`On information and belief, Defendant has placed, and is continuing to place, infringing products
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`into the stream of commerce, via an established distribution channel, with the knowledge and/or
`
`understanding that such products are sold in this District. Defendant, directly or through
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`intermediaries, conducts business in this District, and at least a portion of the acts of
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`infringement and claims alleged in this Complaint have taken place and are continuing to take
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`place in this District.
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`9.
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`On information and belief, this Court has personal jurisdiction over Defendant
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`because it is incorporated in Delaware and has purposefully availed itself of the privileges and
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`benefits of the laws of the State of Delaware. Further, Defendant is subject to this Court’s
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`general and specific personal jurisdiction because Defendant has sufficient minimum contacts
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`within the State of Delaware, pursuant to due process and/or the Delaware Long Arm Statute,
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`because Defendant purposefully availed itself of the privileges of conducting business in the
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`State of Delaware, and because Plaintiff’s causes of action arise directly from Defendant’s
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`business contacts and other activities in the State of Delaware, including regularly doing or
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`soliciting business and deriving substantial revenue from products and services provided to
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`individuals in this District. The exercise of jurisdiction over Defendant would not offend
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`traditional notions of fair play and substantial justice.
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`BACKGROUND
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`10.
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`Plaintiff is the owner of the Patents-in-Suit asserted in this action and has
`
`the exclusive right to sue and collect remedies for past, present, and future infringement
`
`of the patent.
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`COUNT 1
`INFRINGEMENT OF U.S. PATENT NO. 9,098,526
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`11. The allegations set forth in the foregoing paragraphs 1 through 10 are
`
`incorporated by reference into this claim for relief.
`
`12. On August 4, 2015, the ’526 Patent, entitled “Method and System for
`
`Wireless Device Access to External Storage,” was duly and legally issued by the United
`
`States Patent and Trademark Office. A true and correct copy of the ’526 Patent is
`
`attached as Exhibit 1.
`
`13. The ’526 Patent issued from United States Patent Application No.
`
`14/150,106 (“the ’106 Application”), filed on January 8, 2014. The ’106 Application is a
`
`Continuation of U.S. Patent Application No. 14/079,831, filed on November 14, 2013,
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`Case 1:19-cv-00553-UNA Document 1 Filed 03/22/19 Page 4 of 13 PageID #: 4
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`now U.S. Patent No. 8,868,690, which is a Continuation of U.S. Patent Application No.
`
`10/726,897 filed on December 4, 2003, now U.S. Patent No. 8,606,880.
`
`14.
`
`Plaintiff is the assignee and owner of the right, title, and interest in and to the ’526
`
`Patent, including the right to assert all causes of action arising under the ’526 Patent and the right
`
`to any remedies for infringement of the ’526 Patent.
`
`15. Defendant has infringed and continues to infringe the ’526 Patent under 35 U.S.C.
`
`§ 271, literally or under the doctrine of equivalents, by making, using, selling, and/or offering for
`
`sale in the United States, and/or importing into the United States, infringing products without
`
`authorization (hereafter “Infringing Instrumentalities”). At a minimum, Infringing
`
`Instrumentalities include all BLU smartphones and tablets that use cloud services like Google
`
`Drive. This includes products like the VIVO One and VIVO XI+ that use cloud services like
`
`Google Drive.
`
`16. Defendant directly infringed and continues to directly infringe at least claim 11 of
`
`the ’526 Patent by making, using, selling, offering to sell, importing and/or providing and
`
`causing to be used the BLU VIVO One and VIVO XI+ which satisfies, literally or under the
`
`doctrine of equivalents, each and every claim limitation of claim 1 of the ’526 Patent. The
`
`correspondence between the limitations of claim 1 of the ’526 Patent and the VIVO One and
`
`VIVO XI+ smartphones is shown in the claim chart attached hereto as Exhibit 2. The claim
`
`chart is incorporated by reference as if set forth herein. Additional details relating to the BLU
`
`VIVO One and VIVO XI+ and their infringement are within the possession, custody or control
`
`of Defendant.
`
`1 Plaintiff reserves the right to identify additional asserted claims and accused products as
`this litigation proceeds. For example, Plaintiff expressly reserves the right to identify
`additional asserted claims and accused products in its infringement contentions to be
`served during the discovery process.
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`Adobe - Exhibit 1037, page 4
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`17. Defendant provides users with support material for the BLU VIVO One and VIVO
`
`XI+ with instructions about their use of cloud services like Google Drive that practice at least
`
`claim 1 of the ’526 Patent.
`
`18. On information and belief, the identified structures and functionalities of the BLU
`
`VIVO One and VIVO XI+ shown in the claim chart are representative of the structure and
`
`functionality present in all Infringing Instrumentalities including but not limited to BLU families
`
`of products with the following designations or trade names: Advance Series, C Series, Dash
`
`Series, Energy Series, Grand Series, Life Series, Neo Series, Pure Series, R Series, Studio Series,
`
`Tank Series, Touchbook Series, and Vivo Series. On information and belief, any other product
`
`of BLU that uses cloud services is also an Infringing Instrumentality. Additional details relating
`
`to Infringing Instrumentalities and their infringement are within the possession, custody or
`
`control of Defendant.
`
`19.
`
`Plaintiff offers this preliminary identification and description of infringement
`
`without the benefit of discovery or claim construction in this action, and expressly reserves the
`
`right to augment, supplement, and revise its identification and description of infringement based
`
`on additional information obtained through discovery or otherwise.
`
`20. On information and belief, Defendant had knowledge and became aware that its
`
`products that use cloud services infringe the ’526 Patent prior to the filing of this Complaint. By
`
`way of example, prior to the filing of this Complaint, BLU received a letter from SynKloud
`
`stating that the ’526 Patent was being practiced in cloud service-enabled products that were
`
`being used, offered for sale and sold by BLU. Discovery in this matter may reveal that
`
`Defendant has induced others to infringe the ’526 Patent.
`
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`PHIL1 7767230v.1
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`Adobe - Exhibit 1037, page 5
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`21. Defendant had pre-suit knowledge that it was using the ’526 Patent and has
`
`knowingly made, used, offered to sell, sold, and/or imported into the United States the Infringing
`
`Instrumentalities that infringed and continue to infringe the ’526 Patent under 35 U.S.C. § 271.
`
`Because Defendant did so with such knowledge of the ’526 Patent, Defendant is liable for willful
`
`infringement
`
`22. Defendant’s acts of infringement have caused damage to Plaintiff, and Plaintiff is
`
`entitled to recover from Defendant the damages it has sustained as a result of Defendant’s
`
`wrongful acts in an amount subject to proof at trial.
`
`COUNT 2
`INFRINGEMENT OF U.S. PATENT NO. 9,219,780
`
`23. The allegations set forth in the foregoing paragraphs 1 through 10 are
`
`incorporated by reference into this claim for relief.
`
`24. On December 22, 2015, the ’780 Patent, entitled “Method and System for
`
`Wireless Device Access to External Storage,” was duly and legally issued by the United
`
`States Patent and Trademark Office. A true and correct copy of the ’780 Patent is
`
`attached as Exhibit 3.
`
`25. The ’780 Patent issued from United States Patent Application No.
`
`14/623,476 (“the ’476 Application”), filed on February 16, 2015. The ’476 Application
`
`is a Continuation of U.S. Patent Application No. 14/150,106, filed on January 8, 2014,
`
`now U.S. Patent No. 9,098,526, which is a Continuation of U.S. Patent Application No.
`
`14/079,831, filed on November 14, 2013, now U.S. Patent No. 8,868,690, which is a
`
`Continuation of U.S. Patent Application No. 10/726,897 filed on December 4, 2003, now
`
`U.S. Patent No. 8,606,880.
`
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`PHIL1 7767230v.1
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`Adobe - Exhibit 1037, page 6
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`26.
`
`Plaintiff is the assignee and owner of the right, title, and interest in and to the ’780
`
`Patent, including the right to assert all causes of action arising under the ’780 Patent and the right
`
`to any remedies for infringement of the ’780 Patent.
`
`27. Defendant has infringed and continues to infringe the ’780 Patent under 35 U.S.C.
`
`§ 271, literally or under the doctrine of equivalents, by making, using, selling, and/or offering for
`
`sale in the United States, and/or importing into the United States, infringing products without
`
`authorization (hereafter “Infringing Instrumentalities”). At a minimum, Infringing
`
`Instrumentalities include all BLU smartphones and tablets that use cloud services like Google
`
`Drive. This includes products like the VIVO One and VIVO XI+ that use cloud services like
`
`Google Drive.
`
`28. Defendant directly infringed and continues to directly infringe at least claim 12 of
`
`the ’780 Patent by making, using, selling, offering to sell, importing and/or providing and
`
`causing to be used the BLU VIVO One and VIVO XI+ which satisfies, literally or under the
`
`doctrine of equivalents, each and every claim limitation of claim 1 of the ’780 Patent. The
`
`correspondence between the limitations of claim 1 of the ’780 Patent and the VIVO One and
`
`VIVO XI+ smartphones is shown in the claim chart attached hereto as Exhibit 4. The claim
`
`chart is incorporated by reference as if set forth herein. Additional details relating to the BLU
`
`VIVO One and VIVO XI+ and their infringement are within the possession, custody or control
`
`of Defendant.
`
`
`2 Plaintiff reserves the right to identify additional asserted claims and accused products as
`this litigation proceeds. For example, Plaintiff expressly reserves the right to identify
`additional asserted claims and accused products in its infringement contentions to be
`served during the discovery process.
`
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`PHIL1 7767230v.1
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`Adobe - Exhibit 1037, page 7
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`Case 1:19-cv-00553-UNA Document 1 Filed 03/22/19 Page 8 of 13 PageID #: 8
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`29. Defendant provides users with support material for the BLU VIVO One and VIVO
`
`XI+ with instructions about their use of cloud services like Google Drive that practice at least
`
`claim 1 of the ’780 Patent.
`
`30. On information and belief, the identified structures and functionalities of the BLU
`
`VIVO One and VIVO XI+ shown in the claim chart are representative of the structure and
`
`functionality present in all Infringing Instrumentalities including but not limited to BLU families
`
`of products with the following designations or trade names: Advance Series, C Series, Dash
`
`Series, Energy Series, Grand Series, Life Series, Neo Series, Pure Series, R Series, Studio Series,
`
`Tank Series, Touchbook Series, and Vivo Series. On information and belief, any other product
`
`of BLU that uses cloud services is also an Infringing Instrumentality. Additional details relating
`
`to Infringing Instrumentalities and their infringement are within the possession, custody or
`
`control of Defendant.
`
`31.
`
`Plaintiff offers this preliminary identification and description of infringement
`
`without the benefit of discovery or claim construction in this action, and expressly reserves the
`
`right to augment, supplement, and revise its identification and description of infringement based
`
`on additional information obtained through discovery or otherwise.
`
`32. On information and belief, Defendant had knowledge and became aware that its
`
`products that use cloud services infringe the ’780 Patent prior to the filing of this Complaint. By
`
`way of example, prior to the filing of this Complaint, BLU received a letter from SynKloud
`
`stating that the ’780 Patent was being practiced in cloud service-enabled products that were
`
`being used, offered for sale and sold by BLU. Discovery in this matter may reveal that
`
`Defendant has induced others to infringe the ’780 Patent.
`
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`PHIL1 7767230v.1
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`Adobe - Exhibit 1037, page 8
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`Case 1:19-cv-00553-UNA Document 1 Filed 03/22/19 Page 9 of 13 PageID #: 9
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`33. Defendant had pre-suit knowledge that it was using the ’780 Patent and has
`
`knowingly made, used, offered to sell, sold, and/or imported into the United States the Infringing
`
`Instrumentalities that infringed and continue to infringe the ’780 Patent under 35 U.S.C. § 271.
`
`Because Defendant did so with such knowledge of the ’780 Patent, Defendant is liable for willful
`
`infringement
`
`34. Defendant’s acts of infringement have caused damage to Plaintiff, and Plaintiff is
`
`entitled to recover from Defendant the damages it has sustained as a result of Defendant’s
`
`wrongful acts in an amount subject to proof at trial.
`
`COUNT 3
`INFRINGEMENT OF U.S. PATENT NO. 10,015,254
`
`35. The allegations set forth in the foregoing paragraphs 1 through 10 are
`
`incorporated by reference into this claim for relief.
`
`36. On July 3, 2018, the ’254 Patent, entitled “System and Method for
`
`Wireless Device Access to External Storage,” was duly and legally issued by the United
`
`States Patent and Trademark Office. A true and correct copy of the ’254 Patent is
`
`attached as Exhibit 5.
`
`37. The ’254 Patent issued from United States Patent Application No.
`
`14/977,509 (“the ’509 Application”), filed on December 21, 2015. The ’509 Application
`
`is a Continuation of U.S. Patent Application No. 14/036,744, filed on September 25,
`
`2013, now U.S. Patent No. 9,239,686, which is a Continuation of U.S. Patent Application
`
`No. 10/726,897, filed on December 4, 2003, now U.S. Patent No. 8,606,880.
`
`38.
`
`Plaintiff is the assignee and owner of the right, title, and interest in and to the ’254
`
`Patent, including the right to assert all causes of action arising under the ’254 Patent and the right
`
`to any remedies for infringement of the ’254 Patent.
`
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`PHIL1 7767230v.1
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`Adobe - Exhibit 1037, page 9
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`Case 1:19-cv-00553-UNA Document 1 Filed 03/22/19 Page 10 of 13 PageID #: 10
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`39. Defendant has infringed and continues to infringe the ’254 Patent under 35 U.S.C.
`
`§ 271, literally or under the doctrine of equivalents, by making, using, selling, and/or offering for
`
`sale in the United States, and/or importing into the United States, infringing products without
`
`authorization (hereafter “Infringing Instrumentalities”). At a minimum, Infringing
`
`Instrumentalities include all BLU smartphones and tablets that use cloud services like Google
`
`Drive. This includes products like the VIVO One and VIVO XI+ that use cloud services like
`
`Google Drive.
`
`40. Defendant directly infringed and continues to directly infringe at least claim 13 of
`
`the ’254 Patent by making, using, selling, offering to sell, importing and/or providing and
`
`causing to be used the BLU VIVO One and VIVO XI+ which satisfies, literally or under the
`
`doctrine of equivalents, each and every claim limitation of claim 1 of the ’254 Patent. The
`
`correspondence between the limitations of claim 1 of the ’254 Patent and the VIVO One and
`
`VIVO XI+ smartphones is shown in the claim chart attached hereto as Exhibit 6. The claim
`
`chart is incorporated by reference as if set forth herein. Additional details relating to the BLU
`
`VIVO One and VIVO XI+ and their infringement are within the possession, custody or control
`
`of Defendant.
`
`41. Defendant provides users with support material for the BLU VIVO One and VIVO
`
`XI+ with instructions about their use of cloud services like Google Drive that practice at least
`
`claim 1 of the ’254 Patent.
`
`42. On information and belief, the identified structures and functionalities of the BLU
`
`VIVO One and VIVO XI+ shown in the claim chart are representative of the structure and
`
`3 Plaintiff reserves the right to identify additional asserted claims and accused products as
`this litigation proceeds. For example, Plaintiff expressly reserves the right to identify
`additional asserted claims and accused products in its infringement contentions to be
`served during the discovery process.
`
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`PHIL1 7767230v.1
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`Adobe - Exhibit 1037, page 10
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`Case 1:19-cv-00553-UNA Document 1 Filed 03/22/19 Page 11 of 13 PageID #: 11
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`functionality present in all Infringing Instrumentalities including but not limited to BLU families
`
`of products with the following designations or trade names: Advance Series, C Series, Dash
`
`Series, Energy Series, Grand Series, Life Series, Neo Series, Pure Series, R Series, Studio Series,
`
`Tank Series, Touchbook Series, and Vivo Series. On information and belief, any other product
`
`of BLU that uses cloud services is also an Infringing Instrumentality. Additional details relating
`
`to Infringing Instrumentalities and their infringement are within the possession, custody or
`
`control of Defendant.
`
`43.
`
`Plaintiff offers this preliminary identification and description of infringement
`
`without the benefit of discovery or claim construction in this action, and expressly reserves the
`
`right to augment, supplement, and revise its identification and description of infringement based
`
`on additional information obtained through discovery or otherwise.
`
`44. On information and belief, Defendant had knowledge and became aware that its
`
`products that use cloud services infringe the ’254 Patent prior to the filing of this Complaint. By
`
`way of example, prior to the filing of this Complaint, BLU received a letter from SynKloud
`
`stating that the ’254 Patent was being practiced in cloud service-enabled products that were
`
`being used, offered for sale and sold by BLU. Discovery in this matter may reveal that
`
`Defendant has induced others to infringe the ’254 Patent.
`
`45. Defendant had pre-suit knowledge that it was using the ’254 Patent and has
`
`knowingly made, used, offered to sell, sold, and/or imported into the United States the Infringing
`
`Instrumentalities that infringed and continue to infringe the ’254 Patent under 35 U.S.C. § 271.
`
`Because Defendant did so with such knowledge of the ’254 Patent, Defendant is liable for willful
`
`infringement
`
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`PHIL1 7767230v.1
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`Adobe - Exhibit 1037, page 11
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`Case 1:19-cv-00553-UNA Document 1 Filed 03/22/19 Page 12 of 13 PageID #: 12
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`46. Defendant’s acts of infringement have caused damage to Plaintiff, and Plaintiff is
`
`entitled to recover from Defendant the damages it has sustained as a result of Defendant’s
`
`wrongful acts in an amount subject to proof at trial.
`
`JURY DEMAND
`
`47.
`
`Plaintiff requests a jury trial of all issues in this action so triable.
`
`WHEREFORE, Plaintiff prays for judgment as follows:
`
`PRAYER FOR RELIEF
`
`A.
`
`B.
`
`Declaring that Defendant has infringed the Patents-in-Suit.
`
`Awarding damages arising out of Defendant’s infringement of the Patents-
`
`in-Suit to SynKloud, including enhanced damages pursuant to 35 U.S.C. § 284, together
`
`with prejudgment and post-judgment interest, in an amount according to proof.
`
`C.
`
`Awarding attorneys’ fees to SynKloud pursuant to 35 U.S.C. § 285 or as
`
`otherwise permitted by law.
`
`D.
`
`Awarding such other costs and further relied as the Court may deem just
`
`and proper.
`
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`
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`DATED: March 22, 2019
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`
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`
`
`OF COUNSEL:
`
`Daniel S. Carlineo, Esq.
`(pro hac vice motion to be filed)
`Nelson M. Kee, Esq.
`(pro hac vice motion to be filed)
`CARLINEO KEE, PLLC
`1517 17th Street, NW; 3rd Floor
`Washington, DC 20036
`Telephone: (202) 780-6109
`dcarlineo@ck-iplaw.com
`
`
`
`
`
`KLEHR HARRISON
`HARVEY BRANZBURG LLP
`
`/s/ Sean M. Brennecke
`Sean M. Brennecke (#4686)
`919 Market Street, Suite 1000
`Wilmington, Delaware 19801
`Telephone: (302) 552-5518
`Facsimile: (302) 426-9193
`sbrennecke@klehr.com
`
`
`
`Benjamin E. Fuller, Esq.
`(pro hac vice motion to be filed)
`KLEHR HARRISON
`HARVEY BRANZBURG LLP
`1835 Market Street, Suite 1400
`Philadelphia, Pennsylvania 19103
`Telephone: (215) 569-4769
`Facsimile: (215) 568-6603
`bfuller@klehr.com
`
`- and -
`
`Attorneys for Plaintiff
`SynKloud Technologies, LLC
`
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`Adobe - Exhibit 1037, page 13
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