`FOR THE WESTERN DISTRICT OF TEXAS
`
`CIVIL ACTION NO. 6:21-cv-00397
`
`JURY DEMAND
`
`LOGANTREE LP
`
`Plaintiff,
`
`v.
`
`APPLE, INC.,
`
`Defendant.
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`
`1.
`
`Plaintiff LoganTree LP (“LoganTree”) files this, its Original Complaint for patent
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`infringement. Plaintiff asserts claims for patent infringement of U.S. Patent No. 6,059,576 (“the
`
`‘576 Patent”), as reexamined, against Defendant Apple, Inc. (“Apple” or “Defendant”), under 35
`
`U.S.C. § 271, et seq. In support thereof, LoganTree would respectfully show the Court the
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`following:
`
`I.
`
`PARTIES
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`2.
`
`Plaintiff LoganTree LP (“Plaintiff” or LoganTree”) is a partnership organized
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`under the laws of the state of Nevada. LoganTree’s sole general partner is Gulfstream Ventures,
`
`LLC (“Gulfstream”), a limited liability company organized under the laws of the state of Nevada.
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`Theodore and Anne Brann are the owners and sole managing members of Gulfstream, and their
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`address is P.O. Box 2345, Boerne, Texas 78006.
`
`3.
`
`Defendant Apple, Inc. is a corporation incorporated in California, with its principal
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`place of business at One Apple Park Way, Cupertino, California 95014. Apple can be served with
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`1
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`APPLE 1004
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`
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`process by serving their registered agent CT Corporation System at 1999 Byran St., Suite 900,
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`Dallas, Texas 75201-3136.
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`4.
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`Apple sells and offers to sell products and services throughout the United States,
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`including in this judicial district, and introduces products and services into the stream of commerce
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`that incorporate infringing technology knowing that they would be sold in this judicial district and
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`elsewhere in the United States.
`
`II.
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`JURISDICTION AND VENUE
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`5.
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`This is an action for patent infringement arising under the patent laws of the United
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`States, Title 35, United States Code. This Court has subject matter jurisdiction over this action
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`under 28 U.S.C. §§ 1331 and 1338(a).
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`6.
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`This Court has general and specific personal jurisdiction over Apple because Apple
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`is present within and/or has sufficient minimum contacts with the State of Texas and the Western
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`District of Texas pursuant to the Due Process Clause of the United States Constitution and the law
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`of Texas. Apple has purposefully availed itself of the privileges of conducting business in the State
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`of Texas and in the Western District of Texas by entering into contracts with Texas businesses and
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`by developing and producing the infringing products in and through Texas businesses. Apple has
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`sought protection and benefit from the laws of the State of Texas. Moreover, Apple has
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`purposefully and voluntarily placed infringing products in the stream of commerce with the
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`expectation that its products will be purchased by end users in the State of Texas and in the Western
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`District of Texas. Apple has committed the tort of patent infringement within the State of Texas
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`and within the Western District of Texas. Finally, Plaintiff’s causes of action arise directly from
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`Apple’s business contacts and other activities in the State of Texas and in the Western District of
`
`Texas.
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`2
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`
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`7.
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`More specifically, Apple directly and/or through intermediaries (including
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`distributors, retailers, and others) ships, distributes, offers for sale, sells, and/or advertises its
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`products in the United States, the State of Texas, and the Western District of Texas, including but
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`not limited to the Accused Products identified below. Apple solicits customers in the State of Texas
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`and in the Western District of Texas. Apple has customers who are residents of the State of Texas
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`and the Western District of Texas and who use Apple’s products and services, including the
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`Accused Products, in the State of Texas and in the Western District of Texas. Apple derives
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`substantial revenue from goods and service provided to individuals in Texas and in the Western
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`District of Texas.
`
`8.
`
`Venue is proper in the Western District of Texas under 28 U.S.C. § 1400(b).
`
`Defendant Apple has committed acts of patent infringement in the State of Texas and in the
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`Western District of Texas and has a regular and established place of business in the State of Texas
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`and the Western District of Texas. See TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137
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`S. Ct. 1514 (2017). Moreover, Apple has transacted business in this district, and has directly and/or
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`indirectly committed and/or induced acts of patent infringement in this district.
`
`III. THE PATENT-IN-SUIT
`
`9.
`
`On May 9, 2000, the United States Patent and Trademark Office (“PTO”) duly and
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`lawfully issued the ‘576 Patent, entitled “Training and Safety Device, System and Method to Aid
`
`in Proper Movement During Physical Activity,” after a full and fair examination. A true and correct
`
`copy of the ‘576 Patent is attached hereto as Exhibit A.
`
`10.
`
`On March 17, 2015, following a reexamination requested by LoganTree, the PTO
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`issued a reexamination certificate for the ‘576 Patent, bearing U.S. Patent No. 6,059,576 C1 (“the
`
`‘576 Reexamination Certificate”). A true and correct copy of the ‘576 Reexamination Certificate
`
`
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`3
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`
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`is attached hereto as Exhibit B. The ‘576 Patent as reexamined is referred to as the “Reexamined
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`‘576 Patent.”
`
`11.
`
`The named inventor of the ‘576 Patent is Theodore L. Brann.
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`12. Mr. Brann assigned all right, title, and interest in the ‘576 Patent to LoganTree.
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`LoganTree possess all rights of recovery under the ‘576 Patent and the Reexamined ‘576 Patent,
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`including the exclusive right to sue for infringement and recover past damages.
`
`IV.
`
`THE REEXAMINATION
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`13.
`
`The ‘576 Patent sets forth three independent claims—one each for the device,
`
`system, and method of the invention described above—along with twenty-six dependent claims.
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`Id. at 17–18. On March 17, 2015, following a reexamination requested by LoganTree, the PTO
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`issued the ‘576 Reexamination Certificate reaffirming the patentability of all of the ‘576 Patent
`
`claims, as amended, and further determining that an additional 156 dependent claims are
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`patentable, for a total of 185 patented claims. Ex. B. Claims 1, 13, and 20 of the Reexamined ‘576
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`Patent are independent claims, and the remaining 182 claims are dependent on Claims 1, 13, or
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`20.
`
`14.
`
`As stated in Claim No. 1 of the ‘576 Reexamination Certificate, the patented
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`“device” consists of:
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`A portable, self-contained device for monitoring movement of body parts during
`physical activity, said device comprising:
`
`a movement sensor capable of measuring data associated with unrestrained
`movement in any direction and generating signals indicative of said movement;
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`a power source;
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`a microprocessor connected to said movement sensor and to said power source, said
`microprocessor capable of receiving, interpreting, storing and responding to said
`movement data based on user-defined operational parameters, detecting a first
`user-defined event based on the movement data and at least one of the user-defined
`operational parameters regarding the movement data, and storing first event
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`
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`4
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`
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`information related to the selected first user-defined event along with the first time
`stamp information reflecting a time at which the movement data causing the first
`user-defined event occurred;
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`at least one user input connected to said microprocessor for controlling the
`operation of said device;
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`a real-time clock connected to said microprocessor; memory for storing said
`movement data; and
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`an output indictor connected to said microprocessor for signaling the occurrence of
`user-defined events;
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`wherein said movement sensor measures the angle and velocity of said movement.
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`Id. at 3.1
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`15.
`
`Claim 13 (the “System Claim”) defines the patented “system” to comprise the
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`Claim 1 device when connected via a “download device” to “a computer running a program
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`capable of interpreting” the data gathered by the Claim 1 device.
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`16.
`
`Claim 13 of the Reexamined ‘576 Patent is for: “A system to aid in training and
`
`safety during physical activity, said system comprising:
`
`A portable, self-contained movement measuring device, said movement measuring
`device further comprising:
`
`A movement sensor capable of measuring data associated with unrestrained
`movement in any direction and generating signals indicative of said movement;
`
`A power source;
`
`A microprocessor connected to said movement sensor and to said power source,
`said microprocessor capable of receiving, interpreting, storing and responding to
`said movement data based on user-defined operational parameters, detecting a first
`user-defined event based on the movement data and at least one of the user-defined
`operational parameters regarding the movement data, and storing first event
`information related to the selected first user-defined event along with the first time
`stamp information reflecting a time at which the movement data causing the first
`user-defined event occurred;
`
`
`1 The text in italics “indicates additions made to the patent” as a result of the reexamination. Id. at
`3.
`
`
`
`5
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`
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`At least one user input connected to said microprocessor for controlling the
`operation of said device;
`
`A real-time clock connected to said microprocessor; memory for storing said
`movement data; and
`
`At least one input/output port connected to said microprocessor for downloading
`said data and uploading said operational parameters;
`
`An output indicator connected to said microprocessor;
`
`A computer running program capable of interpreting and reporting said movement
`data based on said operational parameters; and
`
`A download device electronically connected to said movement measuring device
`and said computer for transmitting said movement data and operational parameters
`between said movement measuring device and said computer for analysis, reporting
`and operating purposes;
`
`Wherein said movement sensor measures the angle and velocity of said movement.
`
`Id.
`
`17.
`
`Claim 20 (the “Method Claim”) provides a parallel definition for the patented
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`“method.” Id.
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`18.
`
`Claim 20 is for: “A method to monitor physical movement of a body part
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`comprising the steps of:
`
`Attaching a portable, self-contained movement measuring device to said body part
`for measuring unrestrained movement in any direction;
`
`Measuring data associated with said physical movement; interpreting, using a
`microprocessor included in the portable, self-contained measuring device, said
`physical movement data based on user-defined operational parameters and a real-
`time clock; [and]
`
`Storing said data in memory;
`
`Detecting, using the microprocessor, a first user-defined event based on the
`movement data and at least one of the user-defined operational parameters
`regarding the movement data; and
`
`Storing, in said memory, first event information related to the detected first user-
`defined event along with first time stamp information reflecting a time at which the
`movement data causing the first user-defined event occurred.
`
`
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`6
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`
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`Id.
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`V.
`
`19.
`
`20.
`
`COUNT ONE: INFRINGEMENT OF THE REEXAMINED ‘576 PATENT
`
`Plaintiff realleges paragraphs 1 through 22 herein.
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`Apple, directly or through intermediaries, makes, made, has made, used, imported,
`
`manufactured, provided, supplied, distributed, sold, and/or offered for sale to customers within the
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`United States accelerometer-based activity monitoring devices that infringe the Reexamined ‘576
`
`Patent either literally and/or under the doctrine of equivalents, including but not limited to the
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`following models of wearable accelerometer-based activity tracker: Apple Watch 1st Generation
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`Family, Apple Watch Series 1 Family, Apple Watch Series 2 Family, and Apple Watch Series 3
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`Family (collectively “Accused Products”).
`
`21.
`
`Third parties, including Defendant’s customers, have directly infringed, and
`
`continue to directly infringe under 35 U.S.C. § 271(a), one or more claims of the ‘576 Patent,
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`either literally and/or under the doctrine of equivalents, by making, using, selling, and/or offering
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`for sale the Accused Products in the United States that infringe one or more claims of the ‘576
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`Patent.
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`22.
`
`Defendant has had prior knowledge and notice of the ‘576 Patent and its
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`infringement through prior correspondence from counsel of LoganTree to Defendant and its
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`General Counsel as discussed below.
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`23.
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`Defendant has induced infringement under 35 U.S.C. § 271(b). Defendant has
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`actively, knowingly, and intentionally induced, infringement of the ‘576 Patent by selling or
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`otherwise supplying the Accused Products with the knowledge and intent that third parties will
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`use, sell, and/or offer for sale in the United States, for their intended purpose to infringe the ‘576
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`Patent, and with the knowledge and intent to encourage and facilitate infringement through the
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`dissemination of the Accused Products and/or the creation and dissemination of documentation
`7
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`and technical information to customers and prospective customers related to the Accused Products,
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`as well actively providing Defendant’s app for use by customers with the Accused Products.
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`24.
`
`Defendant has contributed to the infringement by third parties, including its
`
`customers, of one or more claims of the ‘576 Patent under 35 U.S.C. § 271(c), by selling and/or
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`offering for sale in the United States knowing that those products constitute a material part of the
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`inventions of the ‘576 Patent, knowing that those products are especially made or adapted to
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`infringe the ’576 Patent, and knowing that those products are not staple articles of commerce
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`suitable for substantial non-infringing use.
`
`25.
`
`The Accused Products infringe the Reexamined ‘576 Patent because each of the
`
`Accused Products is a portable, self-contained device that uses an accelerometer to measure the
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`angle and velocity of body movements, a user-programmable microprocessor capable of
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`recognizing and analyzing data generated by the accelerometer, and internal memory and a clock
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`for storing the data along with a timestamp.
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`26.
`
`The Accused Products infringe the Device Claim of the Reexamined ‘576 Patent,
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`and other claims dependent on the Device Claim, in that each of the Accused Products:
`
`a. Is a portable, self-contained devices for monitoring body movements during
`
`physical activity (e.g., each is a smartwatch that tracks body movements);
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`b. Contains a movement sensor (e.g., an accelerometer and gyroscope) capable
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`of measuring data associated with body movements and generating signals
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`indicative of such movements, and which measures the angle and velocity
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`of such movements;
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`c. Contains a power source (e.g., a rechargeable internal battery);
`
`
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`8
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`
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`d. Contains a microprocessor connected to the movement sensor and power
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`source capable of receiving, interpreting, storing, and responding to
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`movement data generated by the accelerometer based on user-defined
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`operational parameters (e.g., distance), and detecting a first user-defined
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`event based on the movement data and at least one of the user-defined
`
`operational parameters regarding the movement data (e.g., distance goal),
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`and storing first event information related to the selected first user-defined
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`event along with the first time stamp information reflecting a time at which
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`the movement data causing the first user-defined event occurred;
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`e. Contains user inputs (e.g., buttons, touch screen, etc.) connected to the
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`microprocessor for controlling the device;
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`f. Contains a real-time clock and memory for storing movement data; and
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`g. Includes an output indicator connected to said microprocessor for signaling
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`the occurrence of user-defined events (e.g., screen, LED readout, colored
`
`lights, vibration of the watch etc.).
`
`27.
`
`As reflected in the chart attached hereto as Exhibit C, the information Apple makes
`
`public about the Accused Products further demonstrates how they infringe the Device Claim of
`
`the Reexamined ‘576 Patent. Ex. C. While Exhibit C demonstrates the element-by-element
`
`infringement of one or more Accused Products, all of Apple’s Accused Products incorporate
`
`equivalent body motion-tracking technology and design, and all infringe the Device Claim of the
`
`Reexamined ‘576 Patent.
`
`28.
`
`Each of the Accused Products is designed to be and is cable of being connected to
`
`an external computer (such as a laptop or smart phone) and/or computer network operating
`
`
`
`9
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`
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`software capable of accessing and downloading stored data from the Accused Products, analyzing
`
`that data, and presenting the data to the user in different forms. When so connected, each of the
`
`Accused Products infringes the System Claim in of the Reexamined ‘576 Patent, and other claims
`
`dependent on the System Claim, in that the Accused product so connected:
`
`a. Is a system to aid in training and safety during physical activity;
`
`b. Contains a portable, self-contained movement measuring device of the kind
`
`described in Paragraph 26, supra (e.g., the Accused Product itself);
`
`c. Contains a computer (e.g., a personal computer or smart phone) running a
`
`program capable of interpreting and reporting movement data collected by
`
`the device;
`
`d. Contains a download device (e.g., cord, USB dongle, Bluetooth transmitter,
`
`etc.) electronically connected to the movement measuring device and the
`
`computer for transmitting data between the movement device and the
`
`computer for analysis.
`
`29. When used as intended and instructed by Apple, each of the Accused Products
`
`infringes the Method Claim of the Reexamined ‘576 Patent, and other claims dependent on the
`
`Method Claim, in that the Accused Product, so used:
`
`a. Is a method to monitor physical movement of a body part comprising the
`
`steps of:
`
`b. Attaching a portable, self-contained movement measuring device (e.g., the
`
`Accused Product itself) to said body part for measuring unrestrained
`
`movement in any direction;
`
`
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`10
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`
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`c. Measuring data associated with physical movement of the body part (using
`
`the accelerometer and gyroscope described above);
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`d. Interpreting said data using a microprocessor contained in the self-
`
`contained movement measuring device based on user-defined parameters
`
`and a real-time clock;
`
`e. Storing said data in memory;
`
`f. Detecting, using the microprocessor, a first user-defined event based on the
`
`movement data and at least one of the user-defined operational parameters
`
`regarding the movement data; and
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`g. Storing, in said memory, first event information related to the detected first
`
`user-defined event along with first time stamp information reflecting a time
`
`at which the movement data causing the first user-defined event occurred.
`
`30.
`
`The infringing actions of Apple are and have at all times been without the consent
`
`of, authority of, or license from Plaintiff.
`
`31.
`
`As a direct and proximate result of the infringement of the Reexamined ‘576 Patent
`
`by Apple, Plaintiff has suffered damages in an amount that cannot yet be fully ascertained, which
`
`will be proven at trial.
`
`VI.
`
`PLAINTIFF’S ATTEMPTS TO CONTACT DEFENDANT
`
`32.
`
`On July 7, 2017, Plaintiff’s attorneys sent a letter by mail with a Certified Mail
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`Return Receipt Requested (CMRRR) addressed to the General Counsel of Defendant Apple.
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`LoganTree’s letter informed the General Counsel and Defendants that it had products that infringe
`
`the ‘576 Patent. LoganTree in its letter indicated the hope of resolving the matter amicably and
`
`
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`11
`
`
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`requested a discussion of extending a non-exclusive license or cessation within fourteen (14) days.
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`Apple’s general counsel responded denying the claims asserted.
`
`33.
`
`Having had prior knowledge of the ‘576 Patent, Defendant knew or should have
`
`known that, without taking a license to the patents-in-suit, its actions continued to infringe one or
`
`more claims of the ‘576 Patent. Therefore, Defendant has willfully infringed the ‘576 Patent.
`
`34.
`
`The conduct of Defendant in infringing the ‘576 Patent renders this case
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`exceptional within the meaning of 35 U.S.C. § 285.
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`VII. PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff LoganTree requests that the Court grant the following relief:
`
`a)
`
`Enter judgment that Defendant is infringing and have directly infringed the
`
`Reexamined ‘576 Patent under 35 U.S.C. § 271(a);
`
`b)
`
`Order Defendant to pay damages adequate to compensate Plaintiff for Defendant’s
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`infringement of the Reexamined ‘576 Patent pursuant to 35 U.S.C. § 284, together
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`with pre-judgment and post-judgment interests, in an amount according to proof;
`
`c)
`
`Enter a judgment that the infringement was willful and that such damages be trebled
`
`pursuant to 35 U.S.C. § 284;
`
`d)
`
`Enter judgment that this case is exceptional under 35 U.S.C. § 285 and award
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`Plaintiffs reasonable attorneys’ fees and costs incurred in this action; and
`
`e)
`
`Award such other and further relief, at law or in equity, as the Court deems just and
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`proper.
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`VIII. DEMAND FOR JURY TRIAL
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`Plaintiff respectfully requests a trial by jury on all issues so triable, pursuant to Fed. R. Civ.
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`P. 38.
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`12
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`DATED: April 23, 2021
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`Respectfully submitted by:
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`MCCATHERN, PLLC
`
`
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`
`
`/s/Arnold Shokouhi
`Arnold Shokouhi
`Bar No. 24056315
`arnolds@mccathernlaw.com
`James E. Sherry
`Bar No. 24086340
`jsherry@mccathernlaw.com
`
`McCathern, PLLC
`3710 Rawlins Street, Suite 1600
`Dallas, TX 75219
`Phone: (214) 443-4478
`Facsimile: (214) 741-4717
`
`PLAINTIFF’S COUNSEL
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`13
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