`ELBIT SYSTEMS LAND AND C4I LTD. and
`ELBIT SYSTEMS OF AMERICA, LLC,
`
`
`
`
`
`HUGHES NETWORK SYSTEMS, LLC,
`BLACK ELK ENERGY OFFSHORE
`OPERATIONS, LLC, BLUETIDE
`COMMUNICATIONS, INC., and COUNTRY
`HOME INVESTMENTS, INC.,
`
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`
`Defendants.
`
`
`
`
`
`
`C.A. No. 2:15-cv-00037-RWS-RSP
`
`JURY TRIAL DEMANDED
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`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 1 of 23 PageID #: 717
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`SECOND AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`
`
`Plaintiffs Elbit Systems Land and C4I Ltd. (“Elbit”) and Elbit Systems of
`
`America, LLC (“Elbit Systems of America”) (collectively, “Plaintiffs”), by their undersigned
`
`attorneys, for their Complaint against defendants Hughes Network Systems, LLC (“Hughes”),
`
`Black Elk Energy Offshore Operations, LLC (“Black Elk”), BlueTide Communications, Inc.
`
`(“BlueTide”), and Country Home Investments, Inc. (“Country Home”) (collectively,
`
`“Defendants”), hereby allege as follows, upon actual knowledge with respect to themselves and
`
`their own acts, and upon information and belief as to all other matters:
`
`THE PARTIES
`
`1.
`
`Plaintiff Elbit is a corporation organized and existing under the laws of
`
`Israel. Elbit is a wholly-owned subsidiary of Elbit Systems Ltd., an international defense
`
`

`

`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 2 of 23 PageID #: 718
`
`electronics company engaged in a wide range of programs throughout the world. Elbit maintains
`
`its principal place of business at 5 HaGavish Street, Netanya, Israel, 4250705.
`
`2.
`
`Plaintiff Elbit Systems of America is a limited liability company organized
`
`and existing under the laws of the State of Delaware. Elbit Systems of America is a wholly-
`
`owned subsidiary of Elbit Systems Ltd. Elbit Systems of America maintains its principal place
`
`of business at 4700 Marine Creek Parkway, Fort Worth, Texas, 76179.
`
`3.
`
`Defendant Hughes is a limited liability company organized and existing
`
`under the laws of Delaware. Hughes maintains its principal place of business at 11717
`
`Exploration Lane, Germantown, Maryland, 20876. Hughes maintains a registered agent in
`
`Texas, Corporation Service Company, located at 211 E. 7th Street, Suite 620, Austin, TX 78701.
`
`4.
`
`Defendant Black Elk is a limited liability company organized and existing
`
`under the laws of Texas. Black Elk maintains its principal place of business at 3100 South
`
`Gessner Road, Suite 215, Houston, TX 77063. Black Elk maintains a registered agent in Texas,
`
`CT Corporation System, located at 1999 Bryan St., Suite 900, Dallas, TX 75201.
`
`5.
`
`Defendant BlueTide (d/b/a “BlueTide Communications Corporation”) is a
`
`company organized and existing under the laws of Louisiana. BlueTide maintains its principal
`
`place of business at 200 Cummings Road, Broussard, LA 70518.
`
`6.
`
`Defendant Country Home is a corporation organized and existing under
`
`the laws of Texas. Country Home owns and operates the Best Western Premier, Crown Chase
`
`Inn & Suites, located at 2450 Brinker Road, Denton, TX 76208, and maintains its headquarters at
`
`PO Box 789, Sulphur Springs, TX 75483.1
`
`
`1 In the original Complaint, Plaintiffs named “Helm Hotels Group” as a defendant, Dkt. 1 at ¶ 6.
`Helm responded, asserting that the Best Western Premier of Denton “is owned and operated by
`Country Home Investments, Inc.,” and Country Home, “therefore, is the appropriate party
`(continued…)
`
`
`
`2
`
`

`

`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 3 of 23 PageID #: 719
`
`JURISDICTION AND VENUE
`
`7.
`
`This is an action for patent infringement of United States Patent Nos.
`
`6,240,073 (“the ’073 patent”) and 7,245,874 (“the ’874 patent”), arising under the United States
`
`patent laws, Title 35, United States Code, including but not limited to 35 U.S.C. § 271.
`
`8.
`
`This Court has jurisdiction over the subject matter of this action under 28
`
`U.S.C. §§ 1331 and 1338(a) because this action arises under the patent laws of the United States,
`
`35 U.S.C. §§ 1 et seq.
`
`9.
`
`This Court has personal jurisdiction over Defendants. Defendants conduct
`
`business in this judicial district and elsewhere in Texas and throughout the United States.
`
`Further, Defendants have committed and continue to commit acts of patent infringement in this
`
`District and elsewhere in Texas by marketing, selling, offering to sell, and/or using infringing
`
`broadband satellite systems and components, entitling Plaintiffs to relief.
`
`10.
`
`Venue in this District is proper pursuant to 28 U.S.C. § 1391 and 28
`
`U.S.C. § 1400(b), at least because each defendant has sold, offered to sell, or used the infringing
`
`broadband satellite systems and components in this District pursuant at least to 35 U.S.C.
`
`§ 271(a), 35 U.S.C. § 271(b), and/or 43 U.S.C. § 1333(a).
`
`THE IPOS STANDARD
`
`11.
`
`The claimed invention of the ’073 patent is infringed by broadband
`
`satellite systems that operate according to the Internet Protocol over Satellite (“IPoS”) Standard,
`
`which was ratified as a U.S. Telecommunications Industry Association standard (TIA-1008-
`
`
`against whom any allegations of infringement by Best Western Denton should have been
`asserted.” Dkt. 21 at 2. To facilitate resolution of Helm’s motion and reduce the Court’s burden,
`Plaintiffs have amended the Complaint as a matter of course under Federal Rule of Civil
`Procedure 15(a)(1)(B) to name Country Home as a defendant instead of Helm.
`
`
`
`3
`
`

`

`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 4 of 23 PageID #: 720
`
`2003) in November 2003. A true and correct copy of a Hughes White Paper describing the IPoS
`
`standard is attached as Exhibit A.
`
`12.
`
`The IPoS standard specifies architecture and protocols for the transmission
`
`of Internet Protocol (“IP”) packets between a central hub station and remote satellite terminals
`
`using geosynchronous satellites.
`
`13.
`
`The IPoS standard is based upon Defendant Hughes’s “HughesNet®”
`
`two-way satellite system.
`
`14.
`
`Defendant Hughes manufactures and sells broadband satellite systems that
`
`are compliant with the IPoS standard, and components that make up such systems, such as the
`
`Hughes HX/HN broadband satellite systems. A true and correct copy of a Hughes publication
`
`advertising its IPoS-compliant broadband satellite systems is attached as Exhibit B.
`
`15.
`
`Defendant BlueTide is a Louisiana-based company that has partnered with
`
`Hughes to install and manage Hughes’s IPoS-compliant HX/HN broadband satellite systems for
`
`individual customers in the specific maritime context. In 2014, BlueTide spun off from
`
`Environmental & Safety Services International, Inc. (“ESSI”), where it had previously performed
`
`these functions for Hughes as the Communications Division of ESSI. A true and correct copy of
`
`a MarineLink news article discussing the relationship between Hughes and ESSI/BlueTide is
`
`attached as Exhibit C. As noted in the article, “[w]ith Hughes as the well-funded and reliable
`
`parent and the Hughes Maritime Broadband network at their disposal, ESSI is arguably the
`
`perfect service provider and conduit to the maritime customer; utilizing U.S. built Hughes hubs
`
`and modems, selling to end users and providing tier one and two support.” Defendant Black Elk,
`
`for example, explained in the article that “the ESSI Deck Vision solution coupled with the
`
`Hughes Maritime Broadband service helps us operate more efficiently than ever.”
`
`
`
`4
`
`

`

`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 5 of 23 PageID #: 721
`
`16.
`
`Defendant Black Elk, a Houston-based oil and gas company, is a customer
`
`of Hughes and a user of Hughes’s IPoS-compliant HX broadband satellite system. A true and
`
`correct copy of a Hughes publication advertising Black Elk’s use of its broadband satellite
`
`system is attached as Exhibit D. As described in the publication, Hughes and/or ESSI/BlueTide
`
`have worked with Black Elk to implement the Hughes broadband satellite system within Black
`
`Elk’s communications framework, which Hughes describes as the “Hughes Maritime Broadband
`
`solution.” The publication notes that Hughes and ESSI “are equipping Black Elk-operated
`
`production platforms in the Gulf of Mexico with HX broadband satellite routers and providing
`
`high-speed Internet, SCADA, Wi-Fi, Fax, and VHF radio backhaul services,” which Hughes
`
`describes as “a fully managed broadband satellite solution.” Upon information and belief, Black
`
`Elk operates production platforms in Texas waters and in federal waters in the Gulf of Mexico,
`
`including in federal waters adjacent to this District.
`
`17.
`
`Defendant Country Home, the owner and operator of the Best Western
`
`Premier hotel in Denton, Texas, is a customer of Hughes and a user of Hughes’s IPoS-compliant
`
`HX/HN broadband satellite systems. A true and correct copy of a Hughes publication
`
`advertising the use of its broadband satellite systems at the Best Western Premier hotel in
`
`Denton, Texas is attached as Exhibit E. As described in the publication, Hughes has worked
`
`with Country Home to install a Hughes Digital Concierge, which relies on the Hughes broadband
`
`satellite systems, at least in Country Home’s Best Western Premier property in Denton, Texas.
`
`The publication notes that Hughes “manages the interactive touchscreen displays” and “handles
`
`the technology and support.” A true and correct copy of the Best Western Premier’s webpage is
`
`also attached as Exhibit F, in which the hotel displays the Hughes Digital Concierge and notes
`
`that its “unique lobby” comes with a “touchscreen concierge,” which it lists as an amenity.
`
`
`
`5
`
`

`

`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 6 of 23 PageID #: 722
`
`18.
`
`Real Time Communications, LLC (“Real Time”), a Kilgore, Texas-based
`
`satellite communications services provider, is also a customer of Hughes and a provider of
`
`Hughes’s HughesNet® broadband satellite Internet service, a service powered by Hughes’s
`
`infringing satellite communications systems and their components.2 A true and correct copy of a
`
`Hughes publication that advertises that Real Time manages service for “HughesNet mobile
`
`customers,” signed by “Bryan Young” of “Real Time Communications,” is attached as Exhibit
`
`N. A true and correct copy of a Hughes press release advertising how Real Time assisted, for
`
`example, customer M/D Totco in implementing the “HughesNet Optimized Virtual Private
`
`Network” is attached as Exhibit O.
`
`19.
`
`Upon information and belief, Hughes has sold its IPoS-compliant HX/HN
`
`broadband satellite systems to other customers for use in a variety of contexts throughout the
`
`United States and worldwide, including but not limited to other maritime customers, in addition
`
`to Defendant Black Elk, for use in federal waters in the U.S. Gulf of Mexico. According to a
`
`true and correct copy of an ESSI publication, attached as Exhibit G, ESSI/BlueTide is a
`
`“specialist maritime systems integrator” that carries out the “installation and ongoing support” of
`
`the Hughes system for these maritime customers. The publication notes that Hughes provides
`
`technical support for its maritime customers, and that, “[b]ecause it is a fully-managed service,
`
`Hughes, in partnership with ESSI, can deliver a whole array of equipment” to the customers for
`
`use in the Hughes systems.
`
`20.
`
`For example, Triton Diving Services, LLC (“Triton Diving”), a Louisiana-
`
`based limited liability company with its sales office in Houston, Texas, is a customer of Hughes
`
`2 Real Time was described in the Declaration of Emil Regard, “Managing Director and CEO” of
`BlueTide, as a Kilgore, Texas-based customer of “satellite service coverage” from BlueTide.
`Dkt. 23-3 at ¶ 5.
`
`
`
`6
`
`

`

`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 7 of 23 PageID #: 723
`
`and uses Hughes’s IPoS-compliant HX broadband satellite system in providing diving services to
`
`oil and gas companies in the U.S. Gulf of Mexico. A true and correct copy of a Hughes
`
`publication advertising Triton Diving’s use of its broadband satellite system is attached as
`
`Exhibit H. As described in the publication, Hughes and/or ESSI/BlueTide have worked with
`
`Triton Diving to implement the Hughes broadband satellite system within Triton Diving’s
`
`communications framework, which Hughes describes as the “Hughes Maritime Broadband
`
`solution.” The publication notes that “Triton’s broadband network and applications are fully
`
`managed by Hughes in partnership with ESSI,” and that “ESSI installed Hughes’s marine-
`
`stabilized VSAT antennas on Triton’s fleet.”
`
`21.
`
`For further example, Hercules Offshore, Inc. (“Hercules”), a Delaware
`
`corporation based in Houston that provides drilling and liftboat services to oil and gas companies
`
`in the U.S. Gulf of Mexico and elsewhere, is and/or was a customer of Hughes and a user of
`
`Hughes’s HX IPoS-compliant broadband satellite system. A true and correct copy of a Hughes
`
`publication advertising Hercules’s use of its broadband satellite system is attached as Exhibit I.
`
`As described in the publication, Hughes and/or ESSI/BlueTide have worked with Hercules to
`
`implement the Hughes broadband satellite system within Hercules’s communications framework,
`
`which Hughes describes as the “Hughes Maritime Broadband solution.” The publication notes
`
`that Hughes and ESSI “are equipping the entire Hercules Offshore fleet of Class 120 to Class
`
`230 liftboats in the U.S. Gulf of Mexico . . . with Hughes satellite-based broadband maritime
`
`services,” and that the “broadband satellite services for Hercules Offshore are fully managed by
`
`Hughes in partnership with ESSI.”
`
`22.
`
`For further example, Bee Mar LLC (“Bee Mar”), a Louisiana-based
`
`maritime transportation limited liability company with its sales office in Sugar Land, TX, is a
`
`
`
`7
`
`

`

`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 8 of 23 PageID #: 724
`
`customer of Hughes and a user of Hughes’s IPoS-compliant HX broadband satellite system. A
`
`true and correct copy of a Hughes publication advertising Bee Mar’s use of its broadband
`
`satellite system is attached as Exhibit J. As described in the publication, Hughes and/or
`
`ESSI/BlueTide have worked with Bee Mar to implement the Hughes broadband satellite system
`
`within Bee Mar’s communications framework, which Hughes describes as the “Hughes Maritime
`
`Broadband solution.” The publication notes that Hughes “is equipping Bee Mar’s entire fleet of
`
`platform supply vessels,” including those that serve “the Gulf of Mexico,” “with its fully
`
`managed maritime solution in partnership with ESSI.”
`
`23.
`
`On information and belief, Hughes provides each of Black Elk, Country
`
`Home, Triton Diving, Hercules, and Bee Mar access to Hughes’s IPoS-compliant HX/HN
`
`broadband satellite systems, and Hughes, BlueTide, and/or Real Time fully manage and support
`
`the customers’ shared use of these systems.
`
`THE GMR-1 STANDARD
`
`24.
`
`The claimed invention of the ’073 patent is also infringed by satellite
`
`communications systems that operate according to the European Telecommunications Standards
`
`Institute’s (“ETSI”) GEO-Mobile Radio Interface Specifications (“GMR-1”) standard and/or its
`
`variants. A true and correct copy of Version 3.3.1 of the Technical Specification for ETSI’S
`
`GMR-1 standard (“ETSI TS 101 376-1-3”) is attached as Exhibit P.
`
`25.
`
`The GMR-1 standard, and/or its variants, specify an interface and
`
`architecture that allows mobile satellite terminals to communicate over a satellite network.
`
`26.
`
`Defendant Hughes manufactures and sells broadband satellite systems that
`
`are compliant with the GMR-1 standard (and/or its variants), and components that make up such
`
`systems. A true and correct copy of a publication, co-authored by a Hughes employee,
`
`
`
`8
`
`

`

`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 9 of 23 PageID #: 725
`
`advertising a GMR-1-compliant “mobile satellite system” that uses “handheld terminals provided
`
`by Hughes Network Systems” is attached as Exhibit Q. The publication notes that “[Hughes
`
`Network Systems] is currently developing and deploying mobile satellite systems for Thuraya
`
`and ICO as well as Inmarsat Project BGAN-R.”
`
`CELLULAR BACKHAUL SERVICES
`
`27.
`
`The claimed invention of the ’874 patent is infringed by broadband
`
`satellite systems that provide cellular backhaul services via connections to E1/T1 interfaces at
`
`cellular backhaul base stations, including, but not limited to, the HX/HN broadband satellite
`
`systems. A true and correct copy of a Hughes white paper for cellular backhaul solutions is
`
`attached as Exhibit M.
`
`28.
`
`As described in the white paper, Defendant Hughes “offers a full range of
`
`satellite-based Radio Access Network (RAN) backhaul solutions” that “provide high-quality
`
`links while optimizing space segment resource utilization by coupling the appropriate satellite
`
`technology with intelligent traffic optimization.” Ex. M at 1. Defendant Hughes further states
`
`that it has “conducted extensive integration and certification testing with many of the industry-
`
`leading IP optimizers including: Memotec CX-U series of optimizers, Memotec NetPerformer-II
`
`optimizer, and Sevis 6000 series.” Id. at 4. These IP optimizers are a material part of the
`
`patented system claimed in the ’874 patent.
`
`29.
`
`On information and belief, the Memotec CX-U series optimizers are
`
`marketed and sold by Memotec, Inc., which is a wholly owned subsidiary of Comtech EF Data
`
`Corp. On information and belief, Comtech EF Data Corp. is a corporation headquartered in
`
`Tempe, Arizona. A true and correct copy of a datasheet for the Memotec CX-U series, dated
`
`October 10, 2013, is attached as Exhibit R. As described in this datasheet, the CX-U series
`
`“brings together a flexible access device and mobile backhaul traffic optimization, offering a
`9
`
`
`
`

`

`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 10 of 23 PageID #: 726
`
`variety of backhaul interfaces and transmission options” and the CX-U series products “support
`
`digital fractional T1/E1, high-speed serial and Ethernet network interfaces with a choice of
`
`protocols.” Ex. R at 1. Furthermore, the datasheet states that “Memotec’s satellite backhaul
`
`solution is unrivaled for backhauling mobile base station traffic over satellite links.” Id. at 2.
`
`30.
`
`On information and belief, the Memotec NetPerformer-II optimizer is
`
`marketed and sold by Memotec, Inc. which is a wholly owned subsidiary of Comtech EF Data
`
`Corp. On information and belief, Comtech EF Data Corp. is a corporation headquartered in
`
`Tempe, Arizona. A true and correct copy of a datasheet for the Memotec NetPerformer series,
`
`dated August 15, 2014, is attached as Exhibit S. As described in this datasheet, the NetPerformer
`
`series “provides a safe migration path from legacy TDM or Frame Relay networks to IP-centric
`
`networks.” Ex. S at 1.
`
`31.
`
`On information and belief, the Sevis 6000 series optimizers are marketed
`
`and sold by Sevis Systems, Inc., a corporation based out of 320 E. Main Street, Lewisville,
`
`Texas, in Denton County. A true and correct copy of a Sevis webpage advertising the Sevis
`
`6000 series is attached as Exhibit T. As described on the webpage, the Sevis 6000 series
`
`optimizers “[c]onvert[] from E1 TDM to more efficient packet-based IP.” Ex. T at 1.
`
`Furthermore, as described on the webpage, the Sevis 6000 series optimizers are “interoperable
`
`with major satellite vendors and provide[] support for SCPC, TDMA, and IP broadband satellite
`
`technologies.” Id. at 3.
`
`COUNT I: INFRINGEMENT OF U.S. PATENT NO. 6,240,073
`
`32.
`
`On May 29, 2001, United States Patent No. 6,240,073 (“the ’073 patent”),
`
`which is entitled “Reverse Link for a Satellite Communication Network,” was legally issued by
`
`the United States Patent and Trademark Office. A true and correct copy of the ’073 patent is
`
`attached as Exhibit K.
`
`
`
`10
`
`

`

`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 11 of 23 PageID #: 727
`
`33.
`
`Pursuant to 35 U.S.C. § 282, the ’073 patent is presumed valid.
`
`34. When
`
`issued,
`
`the ’073 patent was assigned
`
`to Shiron Satellite
`
`Communications (1996) Ltd. (“Shiron”), and Shiron was the sole owner of the ’073 patent. In
`
`February 2009, Shiron became a wholly-owned subsidiary of Elbit Systems Ltd., and now
`
`operates as part of Elbit Systems Ltd. By assignment, Elbit is the sole owner of the ’073 patent.
`
`Elbit and Elbit Systems of America jointly retain the exclusive right to enforce the ’073 patent.
`
`35.
`
`Hughes manufactures and sells broadband satellite systems that comply
`
`with the IPoS standard, including but not limited to the HX/HN broadband satellite systems.
`
`Hughes also manufactures and sells broadband satellite systems that comply with other
`
`standards, including but not limited to the GMR-1 standard. Hughes has infringed and continues
`
`to infringe one or more claims of the ’073 patent. The infringing acts include, but are not limited
`
`to, the manufacture, use, sale, importation, and/or offer for sale in or within the United States of
`
`products practicing the IPoS standard, the GMR-1 standard, and/or other relevant satellite
`
`communications standards. By manufacturing, using, selling, importing, and/or offering to sell
`
`these products and their components, Hughes has in the past and continues to infringe one or
`
`more of the claims of the ’073 patent, including under 35 U.S.C. § 271(a), either literally or
`
`under the doctrine of equivalents.
`
`36.
`
`Defendant BlueTide partners with Hughes to implement the infringing
`
`IPoS-compliant HX/HN broadband satellite systems for maritime customers, and to support
`
`those customers in using the infringing systems. BlueTide is a recent spinoff of ESSI, which
`
`previously performed these functions. BlueTide has infringed and continues to infringe one or
`
`more claims of the ’073 patent, both while acting as the Communications Division of ESSI and
`
`since its spin off into an independent company. The infringing acts include, but are not limited
`
`
`
`11
`
`

`

`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 12 of 23 PageID #: 728
`
`to, the use, sale, importation, and/or offer for sale in or within the United States of products
`
`practicing the IPoS standard. By using, selling, importing, and/or offering to sell these products
`
`and their components, BlueTide has in the past and continues to infringe one or more of the
`
`claims of the ’073 patent, including under 35 U.S.C. § 271(a), either literally or under the
`
`doctrine of equivalents.
`
`37.
`
`Defendant Black Elk is a maritime customer of Hughes and/or BlueTide
`
`and a user of the Hughes IPoS-compliant HX infringing broadband satellite system, which
`
`Hughes, in the maritime context, refers to as the “Hughes Maritime Broadband solution.”
`
`Hughes and/or ESSI/BlueTide have worked with Black Elk to implement the Hughes HX system
`
`within Black Elk’s communications framework, with Hughes and/or BlueTide fully managing
`
`and supporting the system on an ongoing basis. Black Elk has infringed and continues to
`
`infringe one or more claims of the ’073 patent. The infringing acts include, but are not limited
`
`to, the use in the United States of products practicing the IPoS standard. By using these products
`
`and their components, Black Elk has in the past and continues to infringe one or more of the
`
`claims of the ’073 patent, including under 35 U.S.C. § 271(a), either literally or under the
`
`doctrine of equivalents.
`
`38.
`
`Upon information and belief, Hughes and ESSI/BlueTide have sold or
`
`offered to sell Black Elk components of, and access to, the Hughes IPoS-compliant HX
`
`infringing broadband satellite system for use on Black Elk oil platforms and wells located in
`
`Texas waters, and Black Elk has used the infringing system on these installations. Based on
`
`these activities, Hughes, BlueTide, and Black Elk have each committed the tort of patent
`
`infringement in Texas, and this action arises at least in part from such infringement.
`
`
`
`12
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`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 13 of 23 PageID #: 729
`
`39.
`
`Upon information and belief, Hughes and ESSI/BlueTide have sold or
`
`offered to sell Black Elk components of, and access to, the Hughes IPoS-compliant HX
`
`infringing broadband satellite system for use on Black Elk oil platforms and wells located in
`
`federal waters in the U.S. Gulf of Mexico adjacent to this District, and Black Elk has used the
`
`infringing system on these installations. Upon information and belief, the Black Elk platforms
`
`and wells located in the U.S. Gulf of Mexico adjacent to this District are installations
`
`permanently or temporarily attached to the seabed for purposes of exploring for, developing, or
`
`producing resources, and the laws of the United States, including the Patent Act, are extended to
`
`these platforms and wells pursuant to the Outer Continental Shelf Lands Act (“OCSLA”), 43
`
`U.S.C. § 1333(a). Based on these activities, Hughes, BlueTide, and Black Elk have each
`
`committed the tort of patent infringement in this District, and this action arises at least in part
`
`from such infringement.
`
`40.
`
`Defendant Country Home is a customer of Hughes and a user of the
`
`Hughes IPoS-compliant HX/HN infringing broadband satellite systems. Hughes has worked
`
`with Country Home to implement the infringing Hughes satellite systems at least in the Hughes
`
`Digital Concierge in Country Home’s Best Western Premier property in Denton, Texas, with
`
`Hughes fully managing and supporting the systems on an ongoing basis. Country Home has
`
`infringed and continues to infringe one or more claims of the ’073 patent. The infringing acts
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`include, but are not limited to, the use in the United States of products practicing the IPoS
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`standard. By using these products and their components, Country Home has in the past and
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`continues to infringe one or more of the claims of the ’073 patent, including under 35 U.S.C.
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`§ 271(a), either literally or under the doctrine of equivalents.
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`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 14 of 23 PageID #: 730
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`41.
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`Upon information and belief, Hughes has sold or offered to sell Country
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`Home components of, and access to, the Hughes IPoS-compliant HX/HN infringing broadband
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`satellite systems for use by Country Home in this District, and Country Home has used the
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`infringing systems in this District. Based on these activities, Hughes and Country Home have
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`each committed the tort of patent infringement in this District, and this action arises at least in
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`part from such infringement.
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`42.
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`Defendants have thus each infringed one or more claims of the ’073 patent
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`by making, using, selling, importing, and/or offering for sale the same infringing Hughes IPoS-
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`compliant HX/HN broadband satellite systems, including within this District. Moreover, Hughes
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`and/or BlueTide fully implement, manage, and support the infringing HX/HN broadband satellite
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`systems for shared use by Black Elk and Country Home.
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`43.
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`Hughes’s customers, including at least Defendants BlueTide, Black Elk,
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`and Country Home, and non-parties Real Time, Triton Diving, Hercules, and Bee Mar, have
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`been and are now infringing, including under 35 U.S.C. § 271(a), one or more claims of the ‘073
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`patent by using, selling, offering to sell, and/or importing in or within the United States Hughes
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`HX/HN broadband satellite systems practicing the IPoS standard.
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`44.
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`Hughes has, since at least October 2005, known or been willfully blind to
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`the fact that such acts by its customers of using, selling, offering to sell, and/or importing Hughes
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`HX/HN broadband satellite systems directly infringe the ’073 patent.
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`45.
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`For example, during the prosecution of Hughes’s U.S. Patent No.
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`7,085,247, entitled “Scheduling and queue servicing in a satellite terminal for bandwidth
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`allocations in a broadband satellite communications system,” issued August 1, 2006, the patent
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`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 15 of 23 PageID #: 731
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`examiner at the United States Patent and Trademark Office cited the ’073 patent as relevant prior
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`art to Hughes.
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`46. Moreover, during the prosecution of Hughes’s U.S. Patent No. 7,164,661,
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`entitled “System and Method for Providing a Two-Way Satellite System,” which issued on
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`January 16, 2007, the patent examiner not only cited the ’073 patent as relevant prior art to
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`Hughes, but asserted the ’073 patent as anticipatory prior art that was used to reject the pending
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`claims of the Hughes patent application. On October 20, 2005, in response to this rejection,
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`Hughes submitted an Amendment and Remarks that analyzed and described the teachings of the
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`’073 patent.
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`47.
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`Additionally, during the prosecution of Hughes’s U.S. Patent No.
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`7,468,972, entitled “Method and system for providing efficient data transmission based upon a
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`contention protocol,” which was issued on December 23, 2008, the patent examiner cited the
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`’073 patent as relevant prior art to Hughes.
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`48.
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`Hughes’s extensive knowledge of the ’073 patent, which covers the
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`Hughes HX/HN broadband satellite systems, made it known to Hughes that any use, sale, offer
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`to sell, or importation of the Hughes HX/HN broadband satellite systems would directly infringe
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`the ’073 patent, or, at the very least, rendered Hughes willfully blind to the fact that any use,
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`sale, offer to sell, or importation of the Hughes HX/HN broadband satellite systems would
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`directly infringe the ’073 patent.
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`49.
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`Having known or been willfully blind to the fact that its customers’ use,
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`sale, offer to sell, or importation of the Hughes HX/HN broadband satellite systems would
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`directly infringe the ’073 patent, Hughes, upon information and belief, actively encouraged and
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`continues to actively encourage its customers to directly infringe the ’073 patent by using,
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`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 16 of 23 PageID #: 732
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`selling, offering to sell, or importing Hughes’s HX/HN broadband satellite systems, by, for
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`example, marketing its infringing systems to customers; working with its customers to
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`implement and install the infringing systems and components thereof; assisting BlueTide and
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`Real Time in implementing and installing the infringing systems and components thereof for
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`customers; fully supporting and managing its customers’ continued use of the infringing systems;
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`and providing technical assistance to customers during their continued use of the infringing
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`systems.
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`50.
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`Thus, Hughes has specifically intended to induce, and has induced, its
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`customers to infringe one or more claims of the ’073 patent, and Hughes has known of or been
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`willfully blind to such infringement. Hughes has advised, encouraged, and/or aided its
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`customers to engage in direct infringement, including through its encouragement, advice, and
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`assistance to customers to use the infringing HX/HN broadband satellite systems.
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`51.
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`Based on, among other things, the foregoing facts, Hughes has induced,
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`and continues to induce, infringement under 35 U.S.C. § 271(b) of one or more claims of the
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`’073 patent.
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`52.
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`Further, Hughes sells components to its customers that are especially
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`made and adapted—and specifically intended by Hughes—to be used as components and
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`material parts of the system covered by the ’073 patent. For example, Hughes sells HX/HN
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`series satellite modems to customers, which customers use to access and implement the
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`infringing HX/HN broadband satellite systems, and without which customers would be unable to
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`use the infringing HX/HN broadband satellite systems.
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`53.
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`Upon information and belief, these components, including the infringing
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`HX/HN series satellite modems, are not staple articles or commodities of commerce, and,
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`Case 2:15-cv-00037-RWS Document 53 Filed 11/23/15 Page 17 of 23 PageID #: 733
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`because they are designed to work only with the HX/HN broadband satellite systems, they do not
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`have substantial non-infringing uses.
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`54.
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`At leas