`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`KOSS CORPORATION,
`
`Plaintiff,
`
`v.
`
`PLANTRONICS, INC. and
`POLYCOM, INC.,
`
`Defendants.
`
`Case No. 6:20-cv-00663
`
`COMPLAINT FOR PATENT
`INFRINGEMENT
`
`DEMAND FOR JURY TRIAL
`
`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff, Koss Corporation (“Koss”), files this complaint for patent infringement against
`
`Plantronics, Inc. and Polycom, Inc. (“Plantronics” or “Defendants”) alleging, based on its own
`
`knowledge as to itself and its own actions, and based on information and belief as to all other
`
`matters, as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is a civil action arising under the patent laws of the United States, 35 U.S.C. §
`
`1 et seq., including specifically 35 U.S.C. § 271, based on Plantronics’s willful infringement of
`
`U.S. Patent Nos. 10,206,025 (“the ’025 Patent”), 10,368,155 (“the ’155 Patent”), 10,469,934 (“the
`
`’934 Patent”), and 10,506,325 (“the ’325 Patent”) (collectively “the Patents-in-Suit”).
`
`THE PARTIES
`
`2.
`
`Plaintiff Koss Corporation is a corporation existing under the laws of the State of
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`Delaware having its principal place of business located at 4129 North Port Washington Avenue,
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`Milwaukee, Wisconsin 53212.
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`3.
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`Koss markets a complete line of high-fidelity headphones and audio accessories.
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`Koss’s products, branded under the Koss brand name or private label brands, are sold at various
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`retail chains throughout the United States and the world, including Walmart stores and other large
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`brick-and-mortar establishments, as well as direct to customers in at least the following cities in
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`this District: Alpine, Austin, Del Rio, El Paso, Midland, Odessa, San Antonio, and Waco.
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`4.
`
`Koss also serves as an Original Equipment Manufacturer (“OEM”) for a customer
`
`in this Judicial District. In this role, Koss manufactures OEM headphones sold under its
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`customer’s brand.
`
`5.
`
`On information and belief, Plantronics, Inc. is a Delaware Corporation with its
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`principal place of business at 345 Encinal St., Santa Cruz, California 95060. Plantronics may be
`
`served through its registered agent CT Corporation System, 1999 Bryan Street, Suite 900, Dallas,
`
`Texas 75201. On information and belief, Plantronics, Inc. is registered to do business in the State
`
`of Texas and has been since at least May 9, 2006.
`
`6.
`
`On information and belief, Polycom, Inc. is a Delaware Corporation with its
`
`principal place of business at 345 Encinal Street, Santa Cruz, California 95060. Polycom, Inc. may
`
`be served through its registered agent CT Corporation System, 1999 Bryan Street, Suite 900,
`
`Dallas, Texas 75201. On information and belief, Polycom, Inc. is registered to do business in the
`
`State of Texas and has been since at least July 27, 2000.
`
`7.
`
`On information and belief, on or about March 28, 2018, Plantronics, Inc. acquired
`
`Polycom, Inc. On information and belief, by March 2019, Plantronics, Inc. and Polycom, Inc.
`
`integrated their business operations, management, facilities, and product offerings. On information
`
`and belief, the combined businesses of Plantronics, Inc. and its wholly-owned subsidiary Polycom,
`
`Inc. conducts their combined business operations under the name “Poly.” On March 18, 2019,
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`“Plantronics, Inc. . . . announced that the company will transform into Poly, a technology company
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`focused on the human experience of communications and collaboration, aiming to make
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`communication as rich and natural as in-person. Poly, which means, ‘many’ leverages the
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`legendary audio and video expertise of Plantronics and Polycom . . . .” Meet Poly: Plantronics +
`
`Polycom Relaunches To Focus On Driving The Power Of Many, POLY WEBSITE, available at:
`
`https://www.poly.com/us/en/about/newsroom/plantronics-and-polycom-nowtogether-as-poly.
`
`8.
`
`Plantronics has at least one regular and established place of business in this district,
`
`including, at 7700 West Parmer Lane, Building C, 1st Floor, Austin, TX 78729. Plantronics has
`
`offices in the Western District of Texas where it sells, develops, and/or markets its products
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`including sales offices in Austin.
`
`9.
`
`Plantronics has transacted business in this district and has committed acts of direct
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`and indirect infringement in this District by, among other things, importing, offering to sell, and
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`selling products that infringe the asserted patents.
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`JURISDICTION AND VENUE
`
`10.
`
`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
`
`1338(a) because the claims herein arise under the patent laws of the United States, 35 U.S.C. § 1
`
`et seq., including 35 U.S.C. § 271.
`
`11.
`
`This Court has personal jurisdiction over Plantronics in this action because
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`Plantronics has committed acts of infringement within the State of Texas and within this District
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`through, for example, the sale of Plantronics headphones, such as Backbeat-branded headphones,
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`both online and from the retail locations of its partners in this District. Plantronics regularly
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`transacts business in the State of Texas and within this District. Plantronics engages in other
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`persistent courses of conduct and derives substantial revenue from products and/or services
`
`provided in this District and in Texas, and has purposefully established substantial, systematic,
`
`and continuous contacts within this District and should reasonably expect to be sued in a court in
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`this District. For example, Plantronics has offices in this District and has a Texas registered agent
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`for service. Plantronics operates a website and various advertising campaigns that solicit sales of
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`the infringing products by consumers in this District and in Texas. Plantronics has entered into
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`partnerships with numerous resellers and distributors to sell and offer for sale the Accused
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`Products to consumers in this District, both online and in stores, and offers support service to
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`customers in this District. Given these contacts, the Court’s exercise of jurisdiction over
`
`Plantronics will not offend traditional notions of fair play and substantial justice.
`
`12.
`
`Venue in the Western District of Texas is proper pursuant to 28 U.S.C. §§ 1391(b),
`
`(c) and 1400(b). Plantronics has at least one regular and established place of business in this
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`district, including, at 7700 West Parmer Lane, Building C, 1st Floor, Austin, TX 78729.
`
`13.
`
`Plantronics has committed acts within this judicial district giving rise to this action.
`
`Plantronics continues to conduct business in this judicial district, including one or more acts of
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`making, selling, using, importing and/or offering for sale infringing products or providing support
`
`service to Plantronics’s customers in this District.
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`KOSS’S LEGACY OF AUDIO INNOVATION
`
`14.
`
`15.
`
`Koss was founded in 1953 as a television rental company in Milwaukee, Wisconsin.
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`In 1958, John C. Koss invented the world’s first SP/3 Stereophone as part of a
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`“private listening system” that would enable the wearer to listen to a phonograph without
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`disturbing others in the vicinity:
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`16.
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`The SP/3 Stereophone provided, for the first time, a high-quality stereophonic
`
`headphone that approximated the sounds of a concert hall.
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`17.
`
`John C. Koss demonstrated the SP/3 Stereophone at a Wisconsin audio show in
`
`1958. Initially designed to demonstrate the high-fidelity stereo sound that a portable phonograph
`
`player delivered, these revolutionary SP/3 Stereophones became the hit of the show.
`
`18.
`
`The SP/3 Stereophone has since been enshrined in the Smithsonian Museum’s
`
`collection in Washington, DC, with John C. Koss delivering the SP/3 for enshrinement along with
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`an explanation of the story of the SP/3 in 1972:
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`19.
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`Koss’s commitment to headphone development continued into the 1960s and
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`beyond. In 1962, Koss developed and brought to market the PRO/4 Stereophone, which was
`
`bestowed with Consumer Union Magazine’s #1 choice award in 1963:
`
`
`
`20.
`
`Due to the success and quality of the Pro/4, the United States government awarded
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`Koss with a contract to install fifty (50) Pro/4 units in the staff, press, and presidential quarters of
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`Air Force One. Passengers accessing the aircraft’s state-of-the-art entertainment system listened
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`to the system using the Pro/4:
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`21.
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`In 1970, Koss moved its World Headquarters to the current location at 4129 North
`
`Port Washington Ave., Milwaukee, Wisconsin:
`
`22.
`
`Also in 1970, Koss set the standard for full-size professional headphones with its
`
`
`
`Pro/4AA:
`
`23.
`
`At the time of introduction, the Pro/4AA were regarded as the first dynamic
`
`headphones to deliver true full frequency and high-fidelity performance with noise-isolating
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`
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`capabilities.
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`24.
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`Koss continued improving its Stereophone product line throughout the 1970s and
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`into the 1980s. In 1984, Koss introduced the Porta Pro, an acclaimed product that set performance
`
`and comfort standards for on-the-go listening:
`
`
`
`25.
`
`The Porta Pro continues to be one of the most popular headphone products around
`
`the world, particularly because of its exceptional audio fidelity and performance capabilities. In
`
`fact, as recently as 2008, CNET awarded the Porta Pros a four-star rating of 8.3 (out of 10), with
`
`a performance score of 9 (out of 10), stating that “there’s no denying the sound quality here:
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`they’re
`
`the
`
`ideal companion for mobile audiophiles and home
`
`theater enthusiasts.”
`
`(https://www.cnet.com/reviews/koss-portapro-with-case-review/).
`
`26.
`
`In 1965, Koss introduced the award-winning speaker, the Acoustech X, which was
`
`heralded as a breakthrough product by Billboard Magazine, touting its concert hall quality and
`
`ability to accurately amplify an acoustic guitar to large concert halls. Acoustic System Succeeds
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`In Classical Guitar Concert, BILLBOARD, May 27, 1967, at 71.
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`27.
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`Following on Acoustech X, Koss went on to develop a number of additional
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`products: the world’s first computer maximized loudspeaker in 1976; the Kossfire speaker line in
`
`the 1980s; the dynamic audio/video Dynamite bookshelf series speaker line; a line of
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`portable/desktop computer speakers that employed a unique magnetic shield to protect nearby
`
`computer video and data equipment; and an amplified portable loudspeaker, the M/100, in early
`
`1987.
`
`28.
`
`In 1987, Koss pioneered one of the earliest completely wireless infrared speaker
`
`systems: the JCK 5000. In 1986, Koss also unveiled a portable speaker, the KSC/50, which was
`
`utilized by thousands of members of the United States military during the Gulf War in 1990.
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`Related to the KSC/50, Koss’s KSC/5000 included a built-in amplifier. Those products were
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`profiled in a Newsweek feature on October 12, 1987:
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`29.
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`Over the following years, Koss continued to expand its portable speaker offerings,
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`including by expanding into speakerphones for teleconferencing systems with the Speakeasy line,
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`followed by various additional wireless models for portable use.
`
`30.
`
`Elite musicians including Tony Bennett, Les Brown, and Frank Sinatra Jr., have
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`used Koss headphones, including the Pro/4, while recording and/or performing. Koss’s official
`
`spokespeople have included music legends Mel “the Velvet Fog” Tormé and Doc Severinsen, the
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`trumpet-playing bandleader for Johnny Carson’s Tonight Show band.
`
`31.
`
`32.
`
`In 1979, John C. Koss was inducted into the Audio Hall of Fame.
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`In 2000, John C. Koss was inducted into the inaugural class of the Consumer
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`Electronics Hall of Fame.
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`33.
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`In 2004, John C. Koss was inducted into the Wisconsin Business Hall of Fame.
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`KOSS DEVELOPS THE FIRST EVER TRUE WIRELESS HEADPHONES
`
`34.
`
`Continuing its culture of innovation in high-fidelity audio equipment, in the early
`
`2000s, Koss began developing what became known as the “Striva” project. The vision for the
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`Striva project was borne out of Koss’s recognition that wireless headphones were going to be an
`
`integral part of peoples’ audio consumption. In particular, Koss recognized that as radios were
`
`needing progressive less power and as batteries and other power sources became smaller and more
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`efficient, people would eventually consume audio content through headphones wirelessly
`
`connected to some kind of a source, be it a handheld computing device or in the cloud.
`
`35.
`
`In the early 2000s, Koss began making substantial monetary investments in the
`
`Striva project, with the goal of bringing “True Wireless” listening to its loyal customers as the next
`
`in a long series of headphone innovations.
`
`36.
`
`Koss recognized that the future was a wireless world, complete with mobile internet
`
`connectivity that went beyond traditional hardwired, or computer-based, network topologies. It
`
`recognized that wireless ubiquity was coming, and would extend to wearable devices, including
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`Koss’s area of expertise: the headphone.
`
`37. With these recognitions in mind, Koss made a substantial commitment to investing
`
`in what it saw as the future of headphone technology. This work eventually became the Striva
`
`project, and over the course of its work, Koss invested tens of millions of dollars developing chips,
`
`fabrication techniques, prototype headphones, and other related technology to bring the Striva
`
`vision to life.
`
`38.
`
`In particular, Koss’s work on Striva resulted in the development of a system-on-
`
`chip smaller than a human fingertip that could provide audio and wireless communications
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`processing on a low power budget for incorporation into headphones of various form factors:
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`39.
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`Koss’s work to develop Striva also predicted some of the interactions that modern
`
`headphone users take for granted today. In particular, Koss recognized early on that the inclusion
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`of a microphone (with appropriate voice recognition software and circuitry) could provide a
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`convenient, hands-free way to interact with wireless headphones. Koss developed technology that
`
`could react to such voice prompts, and in fact implemented prototypes that reacted to users saying
`
`“Striva” into a headphone-mounted microphone to begin a voice-based interaction to, for example,
`
`switch tracks or adjust headphone volume.
`
`40.
`
`Koss also recognized a headphone concept that users today take for granted:
`
`different headphones for different applications. In particular, as part of the Striva project, Koss
`
`developed different form factors with different performance capabilities depending on anticipated
`
`use. Over-ear headphones provided users with higher-quality sound, ambient noise dampening
`
`capabilities, and better battery life (due to additional battery real estate), while in-ear headphones
`
`provided portability and capability in a smaller, less-intrusive package.
`
`41.
`
`Koss developed prototype in-ear headphones that relied on its chip development
`
`efforts, with working prototypes from the mid-2000s looking very much like commonly-known
`
`consumer products that flood the market a decade-and-a-half later:
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`42.
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`In 2012, Koss introduced Wi-Fi enabled headphones, the result of its Striva project,
`
`which BizTimes hailed as the first wireless headphones to use Wi-Fi transmission and credited
`
`Koss with “introducing personal listening to the Internet.” (https://biztimes.com/koss-creates-
`
`wireless-headphones-for-wi-fi-music-access/).
`
`43.
`
`In April 2012, Koss brought to market both an in-ear and over-ear embodiment of
`
`the Striva vision, with the Striva Pro model being the first true Wi-Fi over the ear headphones (and
`
`mirroring many features and aesthetics modern-day users expect in wireless, over-ear
`
`headphones):
`
`44.
`
`The Striva Tap, a smaller, in-ear version of the Striva Pro Wi-Fi headphone,
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`provided users with some of the features that modern-day consumers take for granted in in-ear
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`headphones, like independent wireless earphones with touch gestures to control listening
`
`preferences by manipulating the surface of the headphones:
`
`
`
`45.
`
`Koss also developed (though ultimately did not market) a smart speaker that
`
`incorporated many of the Striva features, albeit in a non-wearable form factor. The Striva-based
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`speaker product had a capacitive touch interface to mimic the features of the Striva headphones,
`
`and also included a microphone for voice control. In addition, the Striva-based speaker had the
`
`capability to be included in a distributed network as part of a precursor to the presently-understood
`
`Internet of Things, such that the input devices (e.g., the microphone) could be used to control other
`
`items in the distributed network (e.g., light switches). The speaker therefore allowed, for example,
`
`a user to say “Striva, turn on the lights,” and the lights would turn on.
`
`46.
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`The Striva-based speaker product, referred to as the LS2, exists as a working
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`prototype:
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`47.
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`Unfortunately, the economic reality of Koss’s market position did not permit it to
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`bring its Striva-based product vision to the masses. In particular, due to events abroad (and Koss’s
`
`reliance on sales into those foreign countries), Koss’s supply chain and customer base were thrown
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`into upheaval in the late-2000’s and early-2010’s.
`
`48. Moreover, Koss conducted market research during the mid-2000’s, and concluded
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`that given the market that was likely to develop for wireless headphones, larger companies with
`
`more manufacturing capability would become a substantial threat to bringing Striva fully to
`
`market. As a result, Koss invested substantially on part-purchasing, machinery, fabrication, and
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`the like.
`
`49.
`
`The circumstances above, and other circumstances outside of Koss’s control, meant
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`that the advanced features first developed for Striva were not able to be fully experienced by the
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`majority of the purchasing public.
`
`50.
`
`Koss brings the instant lawsuit because the industry has caught up to Koss’s early-
`
`2000s vision: the technology Koss developed as part of its substantial Striva investment has
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`become standardized, with whole listening ecosystems having been built around the techniques
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`Koss conceived of over a decade ago.
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`51. More fundamentally, Koss is responsible for creating an entire headphone industry
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`beginning from its release of the pioneering Stereophone as a ubiquitous way to consume
`
`information in 1958 has lead to an entire headphone industry. Plantronics and others are reaping
`
`enormous benefits due to John C. Koss’s vision, and Koss Corporation’s commitment to that
`
`vision, for more than six decades.
`
`THE PATENTS-IN-SUIT
`
`52.
`
`On February 12, 2019, U.S. Patent No. 10,206,025, entitled “System with Wireless
`
`Earphones,” was duly and legally issued by the United States Patent and Trademark Office. A
`
`true and accurate copy of the ’025 Patent is attached hereto as Exhibit A.
`
`53.
`
`On July 30, 2019, U.S. Patent No. 10,368,155, entitled “System with Wireless
`
`Earphones,” was duly and legally issued by the United States Patent and Trademark Office. A
`
`true and accurate copy of the ’155 Patent is attached hereto as Exhibit B.
`
`54.
`
`On November 5, 2019, U.S. Patent No. 10,469,934, entitled “System with Wireless
`
`Earphones,” was duly and legally issued by the United States Patent and Trademark Office. A
`
`true and accurate copy of the ’934 Patent is attached hereto as Exhibit C.
`
`55.
`
`On December 10, 2019, U.S. Patent No. 10,506,325, entitled “System with
`
`Wireless Earphones,” was duly and legally issued by the United States Patent and Trademark
`
`Office. A true and accurate copy of the ’325 Patent is attached hereto as Exhibit D.
`
`56.
`
`The Patents-in-Suit represent Koss’s significant investment into the wireless
`
`headphone and wearable technology space, including its commitment in the form of decades of
`
`research and millions of dollars.
`
`DEFENDANTS’ KNOWLEDGE OF THE PATENTS-IN-SUIT
`
`57.
`
`On July 10, 2020, Defendants were notified of its infringement by way of the letter
`
`attached hereto as Exhibit I.
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`FIRST CAUSE OF ACTION
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`(Infringement of the ’025 Patent)
`
`58.
`
`Koss incorporates by reference and realleges each and every allegation of
`
`Paragraphs 1 through 57 as if set forth herein.
`
`59.
`
`Koss owns all substantial rights, interest, and title in and to the ’025 Patent,
`
`including the sole and exclusive right to prosecute this action and enforce the ’025 Patent against
`
`infringers, and to collect damages for all relevant times.
`
`60.
`
`The ’025 Patent generally describes wireless earphones that comprise a transceiver
`
`circuit for receiving streaming audio from a data source, such as a digital audio player or a
`
`computer, over a wireless network.
`
`61.
`
`The written description of the ’025 Patent describes in technical detail each of the
`
`limitations of the claims, allowing a skilled artisan to understand the scope of the claims and how
`
`the non-conventional and non-generic combination of claim limitations is patentably distinct from
`
`and improved upon what may have been considered conventional or generic in the art at the time
`
`of the invention.
`
`62.
`
`Plantronics has made, had made, used, imported, supplied, distributed, sold, and/or
`
`offered for sale products and/or systems, including systems in which its Backbeat-branded
`
`products and/or systems, including the Backbeat Pro 5100 Headphones, are incorporated
`
`(“Accused Headphones”).
`
`63.
`
`As set forth in the attached non-limiting Claim chart (Exhibit E), Plantronics has
`
`infringed and is infringing at least Claim 1 of the ’025 Patent by making, having made, using,
`
`importing, supplying, distributing, selling, and/or offering for sale the Accused Headphones. In
`
`particular, the use of the Accused Headphones by Plantronics to, for example, demonstrate those
`
`products in brick-and-mortar stores in Austin, Texas or to, for example, test those products,
`
`constitute acts of direct infringement of Claim 1 of the ‘025 Patent.
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`64.
`
`Plantronics actively induces infringement of at least Claim 1 of the ’025 Patent by
`
`selling the Accused Headphones with instructions as to how to use the Accused Headphones in a
`
`system such as that recited in the ‘025 Patent. Plantronics aids, instructs, or otherwise acts with
`
`the intent to cause an end user to use the Accused Headphones. Plantronics knew of the ’025
`
`Patent and knew that its use and sale of the Accused Headphones infringe at least Claim 1 of the
`
`’025 Patent.
`
`65.
`
`Plantronics is also liable for contributory infringement of at least Claim 1 of the
`
`’025 Patent by providing, and by having knowingly provided, a material part of the
`
`instrumentalities, namely the Accused Headphones, used to infringe Claim 1 of the ’025 Patent.
`
`The Accused Headphones have no substantial non-infringing uses. When an end user uses the
`
`Accused Headphones in combination with, for example, a smart phone such as, for example, an
`
`Apple iPhone and/or a peripheral device such as, for example, an Apple Watch, the end user
`
`directly infringes Claim 1 of the ’025 Patent. Plantronics knew that the Accused Headphones were
`
`especially made for use in an infringing manner prior to the filing of this lawsuit. For at least the
`
`reasons set forth above, Plantronics contributes to the infringement of the ’025 Patent by others.
`
`66.
`
`Koss has been damaged as a result of the infringing conduct by Plantronics alleged
`
`above. Thus, Plantronics is liable to Koss in an amount that compensates it for such infringement,
`
`which by law cannot be less than a reasonable royalty, together with interest and costs as fixed by
`
`this Court under 35 U.S.C. § 284.
`
`67.
`
`Plantronics’s infringement of the ’025 Patent has caused, and will continue to
`
`cause, Koss to suffer substantial and irreparable harm.
`
`68.
`
`Plantronics has been aware that it infringes the ’025 Patent since at least July 10,
`
`2020, upon the receipt of the letter attached as Exhibit I. Since obtaining knowledge of its
`
`infringing activities, Plantronics has failed to cease its infringing activities.
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`69.
`
`Plantronics’s infringement of the ’025 Patent is, has been, and continues to be,
`
`willful, intentional, deliberate, and/or in conscious disregard of Koss’s rights under the patent.
`
`70.
`
`Koss has complied with 35 U.S.C. § 287 with respect to the ’025 Patent.
`
`SECOND CAUSE OF ACTION
`
`(Infringement of the ’155 Patent)
`
`71.
`
`Koss incorporates by reference and realleges each and every allegation of
`
`Paragraphs 1 through 70 as if set forth herein.
`
`72.
`
`Koss owns all substantial rights, interest, and title in and to the ’155 Patent,
`
`including the sole and exclusive right to prosecute this action and enforce the ’155 Patent against
`
`infringers, and to collect damages for all relevant times.
`
`73.
`
`The ’155 Patent generally describes wireless earphones that comprise a transceiver
`
`circuit for receiving streaming audio from a data source, such as a digital audio player or a
`
`computer, over a wireless network.
`
`74.
`
`The written description of the ’155 Patent describes in technical detail each of the
`
`limitations of the claims, allowing a skilled artisan to understand the scope of the claims and how
`
`the non-conventional and non-generic combination of claim limitations is patentably distinct from
`
`and improved upon what may have been considered conventional or generic in the art at the time
`
`of the invention.
`
`75.
`
`Plantronics has made, had made, used, imported, supplied, distributed, sold, and/or
`
`offered for sale products and/or systems, including systems in which its Backbeat-branded
`
`products and/or systems, including the BackBeat Pro 5100 Headphones, are incorporated
`
`(“Accused Headphones”).
`
`76.
`
`As set forth in the attached non-limiting Claim chart (Exhibit F), Plantronics has
`
`infringed and is infringing at least Claim 1 of the ’155 Patent by making, having made, using,
`
`importing, supplying, distributing, selling, and/or offering for sale the Accused Headphones. In
`-19-
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`particular, the use of the Accused Headphones by Plantronics to, for example, demonstrate those
`
`products in brick-and-mortar stores in Austin, Texas or to, for example, test those products,
`
`constitute acts of direct infringement of Claim 1 of the ’155 Patent.
`
`77.
`
`Plantronics actively induces infringement of at least Claim 1 of the ’155 Patent by
`
`selling the Accused Headphones with instructions as to how to use the Accused Headphones in a
`
`system such as that recited in the ’155 Patent. Plantronics aids, instructs, or otherwise acts with
`
`the intent to cause an end user to use the Accused Headphones. Plantronics knew of the ’155
`
`Patent and knew that its use and sale of the Accused Headphones infringe at least Claim 1 of the
`
`’155 Patent.
`
`78.
`
`Plantronics is also liable for contributory infringement of at least Claim 1 of the
`
`’155 Patent by providing, and by having knowingly provided, a material part of the
`
`instrumentalities, namely the Accused Headphones, used to infringe Claim 1 of the ’155 Patent.
`
`The Accused Headphones have no substantial non-infringing uses. When an end user uses the
`
`Accused Headphones in combination with, for example, a smart phone such as, for example, an
`
`Apple iPhone and/or a peripheral device such as, for example, an Apple Watch, the end user
`
`directly infringes Claim 1 of the ’155 Patent. Plantronics knew that the Accused Headphones were
`
`especially made for use in an infringing manner prior to the filing of this lawsuit. For at least the
`
`reasons set forth above, Plantronics contributes to the infringement of the ’155 Patent by others.
`
`79.
`
`Koss has been damaged as a result of the infringing conduct by Plantronics alleged
`
`above. Thus, Plantronics is liable to Koss in an amount that compensates it for such infringement,
`
`which by law cannot be less than a reasonable royalty, together with interest and costs as fixed by
`
`this Court under 35 U.S.C. § 284.
`
`80.
`
`Plantronics’s infringement of the ’155 Patent has caused, and will continue to
`
`cause, Koss to suffer substantial and irreparable harm.
`
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`81.
`
`Plantronics has been aware that it infringes the ’155 Patent since at least July 10,
`
`2020, upon the receipt of the letter attached as Exhibit I. Since obtaining knowledge of its
`
`infringing activities, Plantronics has failed to cease its infringing activities.
`
`82.
`
`Plantronics’s infringement of the ’155 Patent is, has been, and continues to be,
`
`willful, intentional, deliberate, and/or in conscious disregard of Koss’s rights under the patent.
`
`83.
`
`Koss has complied with 35 U.S.C. § 287 with respect to the ’155 Patent.
`
`THIRD CAUSE OF ACTION
`
` (Infringement of the ’934 Patent)
`
`84.
`
`Koss incorporates by reference and realleges each and every allegation of
`
`Paragraphs 1 through 83 as if set forth herein.
`
`85.
`
`Koss owns all substantial rights, interest, and title in and to the ’934 Patent,
`
`including the sole and exclusive right to prosecute this action and enforce the ’934 Patent against
`
`infringers, and to collect damages for all relevant times.
`
`86.
`
`The ’934 Patent generally describes wireless earphones that comprise a transceiver
`
`circuit for receiving streaming audio from a data source, such as a digital audio player or a
`
`computer, over a wireless network.
`
`87.
`
`The written description of the ’934 Patent describes in technical detail each of the
`
`limitations of the claims, allowing a skilled artisan to understand the scope of the claims and how
`
`the non-conventional and non-generic combination of claim limitations is patentably distinct from
`
`and improved upon what may have been considered conventional or generic in the art at the time
`
`of the invention.
`
`88.
`
`Plantronics has made, had made, used, imported, supplied, distributed, sold, and/or
`
`offered for sale products and/or systems, including systems in which its Backbeat-branded
`
`products and/or systems, including the BackBeat Pro 5100 Headphones are incorporated
`
`(“Accused Headphones”).
`
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`89.
`
`As set forth in the attached non-limiting Claim chart (Exhibit G), Plantronics has
`
`infringed and is infringing at least Claim 1 of the ’934 Patent by making, having made, using,
`
`importing, supplying, distributing, selling, and/or offering for sale the Accused Headphones. In
`
`particular, the use of the Accused Headphones by Plantronics to, for example, demonstrate those
`
`products in brick-and-mortar stores in Austin, Texas or to, for example, test those products,
`
`constitute acts of direct infringement of Claim 1 of the ’934 Patent.
`
`90.
`
`Plantronics actively induces infringement of at least Claim 1 of the ’934 Patent by
`
`selling the Accused Headphones with instructions as to how to use the Accused Headphones in a
`
`system such as that recited in the ’934 Patent. Plantronics aids, instructs, or otherwise acts with
`
`the intent to cause an end user to use the Accused Headphones. Plantronics knew of the ’934
`
`Patent and knew that its use and sale of the Accused Headphones infringe at least Claim 1 of the
`
`’934 Patent.
`
`91.
`
`Plantronics is also liable for contributory infringement of at least Claim 1 of the
`
`’934 Patent by providing, and by having knowingly provided, a material part of the
`
`instrumentalities, namely the Accused Headphones, used to infringe Claim 1 of the ’934 Paten