UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`KOSS CORPORATION,
`
`Plaintiff,
`
`v.
`
`SKULLCANDY, INC.,
`
` Defendant.
`
`Case No. 6:20-cv-00664
`
`COMPLAINT FOR PATENT
`INFRINGEMENT
`
`DEMAND FOR JURY TRIAL
`
`ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff, Koss Corporation (“Koss”), files this complaint for patent infringement against
`
`Skullcandy, Inc. (“Skullcandy” or “Defendant”) 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 Skullcandy’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”), 10,491,982 (“the ’982 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.
`
`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
`
`customer’s brand.
`
`5.
`
`On information and belief, Skullcandy is a Delaware Corporation with a principal
`
`place of business at 6301 N. Landmark Dr., Park City, Utah 84098. On information and belief
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`Skullcandy may be served in this district through its registered agent Chris Silverthorne at 2109
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`Campfield Parkway, Austin, Texas, 78745.
`
`6.
`
`On information and belief, Skullcandy has transacted business in this district and
`
`has committed acts of direct and indirect infringement in this District by, among other things,
`
`importing, offering to sell, and selling products that infringe the asserted patents to businesses in
`
`this district including, but not limited to Target, Best Buy, Kohl’s, Office Depot, Office Max, and
`
`Wal-Mart stores located in, inter alia, El Paso, Austin, San Antonio, and other cities within this
`
`district.
`
`JURISDICTION AND VENUE
`
`7.
`
`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.
`
`8.
`
`This Court has personal jurisdiction over Skullcandy in this action because
`
`Skullcandys has committed acts of infringement within the State of Texas and within this District
`
`through, for example, the sale of Skullcandy headphones both online and from the retail locations
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`of its partners in this District. Skullcandy regularly transacts business in the State of Texas and
`
`within this District. Skullcandy engages in other persistent courses of conduct and derives
`
`substantial revenue from products and/or services provided in this District and in Texas, and has
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`purposefully established substantial, systematic, and continuous contacts within this District and
`
`should reasonably expect to be sued in a court in this District. For example, Skullcandy has a
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`registered agent for service in this District. Skullcandy operates a website and various advertising
`
`campaigns that solicit sales of the infringing products by consumers in this District and in Texas.
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`Skullcandy has entered into partnerships with numerous resellers and distributors to sell and offer
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`for sale the Accused Products to consumers in this District, both online and in stores, and offers
`
`support service to customers in this District. Given these contacts, the Court’s exercise of
`
`jurisdiction over Skullcandy will not offend traditional notions of fair play and substantial justice.
`
`9.
`
`Venue in the Western District of Texas is proper pursuant to 28 U.S.C. §§ 1391(b),
`
`(c) and 1400(b).
`
`10.
`
`On information and belief, Skullcandy has transacted business in this district and
`
`has committed acts of direct and indirect infringement in this District by, among other things,
`
`importing, offering to sell, and selling products that infringe the asserted patents to businesses in
`
`this district including, but not limited to Target, Best Buy, Kohl’s, Office Depot, Office Max, and
`
`Wal-Mart stores located in, inter alia, El Paso, Austin, San Antonio, and other cities within this
`
`district.
`
`11.
`
`12.
`
`KOSS’S LEGACY OF AUDIO INNOVATION
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`Koss was founded in 1953 as a television rental company in Milwaukee, Wisconsin.
`
`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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`13.
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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.
`
`14.
`
`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.
`
`15.
`
`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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`16.
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`Koss’s commitment to headphone development continued into the 1960s and
`
`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:
`
`
`
`17.
`
`Due to the success and quality of the Pro/4, the United States government awarded
`
`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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`18.
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`In 1970, Koss moved its World Headquarters to the current location at 4129 North
`
`Port Washington Ave., Milwaukee, Wisconsin:
`
`
`
`19.
`
`Also in 1970, Koss set the standard for full-size professional headphones with its
`
`
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`Pro/4AA:
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`20.
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`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
`
`capabilities.
`
`21.
`
`Koss continued improving its Stereophone product line throughout the 1970s and
`
`into the 1980s. In 1984, Koss introduced the Porta Pro, an acclaimed product that set performance
`
`and comfort standards for on-the-go listening:
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`22.
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`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:
`
`they’re
`
`the
`
`ideal companion for mobile audiophiles and home
`
`theater enthusiasts.”
`
`(https://www.cnet.com/reviews/koss-portapro-with-case-review/).
`
`23.
`
`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
`
`In Classical Guitar Concert, BILLBOARD, May 27, 1967, at 71.
`
`24.
`
`Following on Acoustech X, Koss went on to develop a number of additional
`
`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
`
`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.
`
`25.
`
`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.
`
`Related to the KSC/50, Koss’s KSC/5000 included a built-in amplifier. Those products were
`
`profiled in a Newsweek feature on October 12, 1987:
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`26.
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`Over the following years, Koss continued to expand its portable speaker offerings,
`
`including by expanding into speakerphones for teleconferencing systems with the Speakeasy line,
`
`followed by various additional wireless models for portable use.
`
`27.
`
`Elite musicians including Tony Bennett, Les Brown, and Frank Sinatra Jr., have
`
`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,
`
`trumpet-playing bandleader for Johnny Carson’s Tonight Show band.
`
`28.
`
`29.
`
`In 1979, John C. Koss was inducted into the Audio Hall of Fame.
`
`In 2000, John C. Koss was inducted into the inaugural class of the Consumer
`
`Electronics Hall of Fame.
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`30.
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`In 2004, John C. Koss was inducted into the Wisconsin Business Hall of Fame.
`
`KOSS DEVELOPS THE FIRST EVER TRUE WIRELESS HEADPHONES
`
`31.
`
`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
`
`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 progressively less power and as batteries and other power sources became smaller and
`
`more 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.
`
`32.
`
`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.
`
`33.
`
`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
`
`Koss’s area of expertise: the headphone.
`
`34. 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.
`
`35.
`
`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
`
`processing on a low power budget for incorporation into headphones of various form factors:
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`36.
`
`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
`
`of a microphone (with appropriate voice recognition software and circuitry) could provide a
`
`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.
`
`37.
`
`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.
`
`38.
`
`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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`39.
`
`In 2012, Koss introduced Wi-Fi-nabled 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/).
`
`40.
`
`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):
`
`41.
`
`The Striva Tap, a smaller, in-ear version of the Striva Pro Wi-Fi headphone,
`
`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:
`
`
`
`42.
`
`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
`
`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.
`
`43.
`
`The Striva-based speaker product, referred to as the LS2, exists as a working
`
`prototype:
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`44.
`
`Unfortunately, the economic reality of Koss’s market position did not permit it to
`
`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
`
`into upheaval in the late-2000’s and early-2010’s.
`
`45. Moreover, Koss conducted market research during the mid-2000’s, and concluded
`
`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
`
`the like.
`
`46.
`
`The circumstances above, and other circumstances outside of Koss’s control, meant
`
`that the advanced features first developed for Striva were not able to be fully experienced by the
`
`majority of the purchasing public.
`
`47.
`
`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
`
`become standardized, with whole listening ecosystems having been built around the techniques
`
`Koss conceived of over a decade ago.
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`48. More fundamentally, Koss is responsible for creating an entire headphone industry
`
`beginning from its release of the pioneering Stereophone as a ubiquitous way to consume
`
`information in 1958. Skullcandy 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
`
`49.
`
`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.
`
`50.
`
`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.
`
`51.
`
`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.
`
`52.
`
`On November 26, 2019, U.S. Patent No. 10,491,982, 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 ’982 Patent is attached hereto as Exhibit D.
`
`53.
`
`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 E.
`
`54.
`
`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.
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`DEFENDANT’S KNOWLEDGE OF THE PATENTS-IN-SUIT
`
`55.
`
`On July 10, 2020, Defendant was notified of its infringement by way of the letter
`
`attached hereto as Exhibit I.
`
`FIRST CAUSE OF ACTION
`
`(Infringement of the ’025 Patent)
`
`56.
`
`Koss incorporates by reference and realleges each and every allegation of
`
`Paragraphs 1 through 55 as if set forth herein.
`
`57.
`
`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.
`
`58.
`
`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.
`
`59.
`
`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.
`
`60.
`
`Skullcandy has made, had made, used, imported, supplied, distributed, sold, and/or
`
`offered for sale products and/or systems, including systems in which its Skullcandy-branded
`
`products and/or systems, including the Sesh TWS headphones, are incorporated (“Accused
`
`Headphones”).
`
`61.
`
`As set forth in the attached non-limiting Claim chart (Exhibit F), Skullcandy 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
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`particular, the use of the Accused Headphones by Skullcandy 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.
`
`62.
`
`Skullcandy 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. Skullcandy aids, instructs, or otherwise acts with
`
`the intent to cause an end user to use the Accused Headphones. Skullcandy 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.
`
`63.
`
`Skullcandy 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 periphery device, such as, for example, an Apple Watch, the end user
`
`directly infringes Claim 1 of the ’025 Patent. Skullcandy 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, Skullcandy contributes to the infringement of the ’025 Patent by others.
`
`64.
`
`Koss has been damaged as a result of the infringing conduct by Skullcandy alleged
`
`above. Thus, Skullcandy 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.
`
`65.
`
`Skullcandy’s infringement of the ’025 Patent has caused, and will continue to
`
`cause, Koss to suffer substantial and irreparable harm.
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`66.
`
`Skullcandy 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, Skullcandy has failed to cease its infringing activities.
`
`67.
`
`Skullcandy’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.
`
`68.
`
`Koss has complied with 35 U.S.C. § 287 with respect to the ’025 Patent.
`
`SECOND CAUSE OF ACTION
`
`(Infringement of the ’155 Patent)
`
`69.
`
`Koss incorporates by reference and realleges each and every allegation of
`
`Paragraphs 1 through 68 as if set forth herein.
`
`70.
`
`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.
`
`71.
`
`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.
`
`72.
`
`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.
`
`73.
`
`Skullcandy has made, had made, used, imported, supplied, distributed, sold, and/or
`
`offered for sale products and/or systems, including systems in which its Skullcandy-branded
`
`products and/or systems, including the Crusher headphones, are incorporated (“Accused
`
`Headphones”).
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`74.
`
`As set forth in the attached non-limiting Claim chart (Exhibit G), Skullcandy 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
`
`particular, the use of the Accused Headphones by Skullcandy 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.
`
`75.
`
`Skullcandy 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. Skullcandy aids, instructs, or otherwise acts with
`
`the intent to cause an end user to use the Accused Headphones. Skullcandy 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.
`
`76.
`
`Skullcandy 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. Skullcandy 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, Skullcandy contributes to the infringement of the ’155 Patent by others.
`
`77.
`
`Koss has been damaged as a result of the infringing conduct by Skullcandy alleged
`
`above. Thus, Skullcandy 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.
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`78.
`
`Skullcandy’s infringement of the ’155 Patent has caused, and will continue to
`
`cause, Koss to suffer substantial and irreparable harm.
`
`79.
`
`Skullcandy 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, Skullcandy has failed to cease its infringing activities.
`
`80.
`
`Skullcandy’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.
`
`81.
`
`Koss has complied with 35 U.S.C. § 287 with respect to the ’155 Patent.
`
`THIRD CAUSE OF ACTION
`
`(Infringement of the ’982 Patent)
`
`82.
`
`Koss incorporates by reference and realleges each and every allegation of
`
`Paragraphs 1 through 81 as if set forth herein.
`
`83.
`
`Koss owns all substantial rights, interest, and title in and to the ’982 Patent,
`
`including the sole and exclusive right to prosecute this action and enforce the ’982 Patent against
`
`infringers, and to collect damages for all relevant times.
`
`84.
`
`The ’982 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.
`
`85.
`
`The written description of the ’982 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.
`
`86.
`
`Skullcandy has made, had made, used, imported, supplied, distributed, sold, and/or
`
`offered for sale products and/or systems, including systems in which its Skullcandy products
`-20-
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`and/or systems, including the Indy Fuel headphones, are incorporated (“Accused Indy-branded
`
`Headphones”).
`
`87.
`
`As set forth in the attached non-limiting Claim chart (Exhibit H), Skullcandy has
`
`infringed and is infringing at least Claim 1 of the ’982 Patent by making, having made, using,
`
`importing, supplying, distributing, selling, and/or offering for sale the Accused Indy-branded
`
`Headphones. In particular, the use of the Accused Indy-branded Headphones by Skullcandy 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 ’982 Patent.
`
`88.
`
`Skullcandy actively induces infringement of at least Claim 1 of the ’982 Patent by
`
`selling the Accused Indy-branded Headphones with instructions as to how to use the Accused
`
`Indy-branded Headphones in a system such as that recited in the ’982 Patent. Skullcandy aids,
`
`instructs, or otherwise acts with the intent to cause an end user to use the Accused Indy-branded
`
`Headphones. Skullcandy knew of the ’982 Patent and knew that its use and sale of the Accused
`
`Indy-branded Headphones infringe at least Claim 1 of the ’982 Patent.
`
`89.
`
`Skullcandy is also liable for contributory infringement of at least Claim 1 of the
`
`’982 Patent by providing, and by having knowingly provided, a material part of the
`
`instrumentalities, namely the Accused Indy-branded Headphones, used to infringe Claim 1 of the
`
`’982 Patent. The Accused Indy-branded Headphones have no substantial non-infringing uses.
`
`When an end user uses the Accused Indy-branded Headphones in combination with, for example,
`
`a smart phone such as, for example, Apple iPhone and/or a peripheral devices such as, for example,
`
`an Apple Watch, the end user directly infringes Claim 1 of the ’982 Patent. Skullcandy knew that
`
`the Accused Indy-branded 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, Skullcandy contributes to the
`
`infringement of the ’982 Patent by others.
`
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`90.
`
`Koss has been damaged as a result of the infringing conduct by Skullcandy alleged
`
`above. Thus, Skullcandy 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.
`
`91.
`
`Skullcandy’s infringement of the ’982 Patent has caused, and will continue to
`
`cause, Koss to suffer substantial and irreparable harm.
`
`92.
`
`Skullcandy has been aware that it infringes the ’982 Patent since at least July 10,
`
`2020, upon the receipt of the letter attached as Exhibit I. Since obtaining knowledge of its
`
`infringing activities, Skullcandy has failed to cease its infringing activities.
`
`93.
`
`Skullcandy’s infringement of the ’982 Patent is, has been, and continues to be,
`
`willful, intentional, deliberate