Case 6:12-cv-00659-LED Document 1 Filed 09/17/12 Page 1 of 15 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`Personalweb Technologies LLC and
`Level 3 Communications, LLC.,
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`Civil Action No. 6:12-cv-659
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`JURY TRIAL REQUESTED
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`Plaintiffs,
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`v.
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`Rackspace US, Inc. and Rackspace Hosting,
`Inc.
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`Defendants.
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff PersonalWeb Technologies LLC (“PersonalWeb”) files this Complaint for
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`Patent Infringement against Rackspace US, Inc., and Rackspace Hosting, Inc. (collectively,
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`“Rackspace” or “Defendant”). Plaintiff PersonalWeb Technologies, LLC alleges:
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`PRELIMINARY STATEMENT
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`1.
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`PersonalWeb and Level 3 Communications, LLC (“Level 3”) are parties to an
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`agreement between Kinetech, Inc. and Digital Island, Inc. dated September 1, 2000 (the
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`“Agreement”). Pursuant to the Agreement, PersonalWeb and Level 3 each own a fifty percent
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`(50%) undivided interest in and to the patents at issue in this action: U.S. Patent Nos.
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`5,978,791, 6,415,280, 6,928,442, 7,802,310, 7,945,539, 7,945,544, 7,949,662, 8,001,096 and
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`8,099,420 (“Patents-in-Suit”). Level 3 has joined in this Complaint pursuant to its contractual
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`obligations under the Agreement, at the request of PersonalWeb.
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`2.
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`Pursuant to the Agreement, Level 3 has, among other rights, certain defined rights
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`to use, practice, license, sublicense and enforce and/or litigate the Patents-in-Suit in connection
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`with a particular field of use (“Level 3 Exclusive Field”). Pursuant to the Agreement,
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`PersonalWeb has, among other rights, certain defined rights to use, practice, license,
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`sublicense, enforce and/or litigate the Patents-in-Suit in fields other than the Level 3 Exclusive
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`Field (the “PersonalWeb Patent Field”).
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`3. All infringement allegations, statements describing PersonalWeb, statements
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`describing any Defendant (or any Defendant products) and any statements made regarding
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`jurisdiction and venue are made by PersonalWeb alone, and not by Level 3. PersonalWeb
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`alleges that the infringements at issue in this case all occur within, and are limited to, the
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`PersonalWeb Patent Field. Accordingly, PersonalWeb has not provided notice to Level
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`3―under Section 6.4.1 of the Agreement or otherwise―that PersonalWeb desires to bring suit
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`in the Level 3 Exclusive Field in its own name on its own behalf or that PersonalWeb knows or
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`suspects that Defendant are infringing or have infringed any of Level 3’s rights in the patents.
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`THE PARTIES
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`4.
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`PersonalWeb Technologies LLC (“PersonalWeb”) is a limited liability company
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`organized under the laws of Texas with its principal place of business at 112 E. Line Street,
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`Suite 204, Tyler, Texas, 75702. PersonalWeb was founded in August 2010 and is in the
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`business of developing and distributing software based on its technology assets.
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`5. Level 3 Communications, LLC is a limited liability company organized under the
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`laws of Delaware with its principal place of business at 1025 Eldorado Boulevard, Broomfield,
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`CO 80021.
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`6.
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`PersonalWeb’s infringement claims asserted in this case are asserted by
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`PersonalWeb and all fall outside the Level 3 Exclusive Field. Level 3 is currently not asserting
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`patent infringement in this case in the Level 3 Exclusive Field against any Defendant.
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`7. Defendant Rackspace US, Inc. is a Delaware corporation with its principal
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`executive offices at 800 Brazos, St, Ste. 400, Austin, Texas 78701-2548. Rackspace is
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`qualified to do business in the state of Texas, Filing No. 0800837400, and has appointed
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`Capitol Corporate Services, Inc., 800 Brazos, St, Ste. 400, Austin, Texas 78701-2548, as its
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`agent for service of process.
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`8. Defendant Rackspace Hosting, Inc. is a Delaware corporation with its principal
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`executive offices at 9725 Datapoint Dr., Ste 100, San Antonio, Texas 78229-2384. Rackspace
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`Hosting is qualified to do business in the state of Texas, Filing No. 0013193706, and has
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`appointed Capitol Corporate Services, Inc., 800 Brazos, St, Ste. 400, Austin, Texas 78701-
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`2548, as its agent for service of process.
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`9. Rackspace makes, distributes, and uses storage and software products, and offers
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`storage and software services, to consumers in the United States and, more particularly, in the
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`Eastern District of Texas.
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`JURISDICTION AND VENUE
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`10. This is an action for patent infringement arising under the patent laws of the
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`United States, Title 35, United States Code. Jurisdiction as to these claims is conferred on this
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`Court by 35 U.S.C. §§ 1331 and 1338(a).
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`11. Venue is proper in the Eastern District of Texas under 28 U.S.C. §§ 1391 and
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`1400(b). PersonalWeb is a limited liability company incorporated in Smith County, Texas
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`with its principal place of business in Tyler, Texas. A substantial part of the events giving rise
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`to the asserted claims occurred in this judicial district, Defendant transact business in this
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`judicial district, and the patents were infringed in this judicial district.
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`12. This Court has personal jurisdiction over Rackspace. Rackspace has conducted
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`and continues to conduct business within the State of Texas. Rackspace, directly or through
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`intermediaries (including distributors, retailers, and others), ships, distributes, offers for sale,
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`sells, and advertises its products and offers its products and services in the United States, the
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`State of Texas, and the Eastern District of Texas. Rackspace has purposefully and voluntarily
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`sold infringing software and performed infringing services in the PersonalWeb Patent Field
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`with the expectation that they will be purchased and used by consumers in the Eastern District
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`of Texas. These infringing products and services have been and continue to be purchased and
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`used by consumers in the Eastern District of Texas. Rackspace has committed acts of patent
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`infringement within the State of Texas and, more particularly, within the Eastern District of
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`Texas.
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`PERSONALWEB BACKGROUND
`13. PersonalWeb is in the business of developing and distributing software based on
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`its technology assets. PersonalWeb draws on its proprietary technology to innovate and
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`develop software products, including a social learning platform and digital content
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`management system.
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`14. PersonalWeb’s products include a product referred to as “StudyPods…where
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`social meets study™”, a new social learning platform that enables students to connect,
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`collaborate and share academic knowledge with each other at their own university or colleges
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`worldwide. PersonalWeb’s also is developing enterprise solutions, including proprietary
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`technology assets utilizing natural language processing and semantic analysis to search for and
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`deliver relevant content available on the Internet to users.
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`15.
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`PersonalWeb also is developing the Global File Registry (“GFR”) digital content
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`management system, an online copyright protection and crime prevention tool that is a
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`consolidated database containing unique identifiers of millions of infringing files captured and
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`collected on behalf of multiple content owners and interested parties.
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`16.
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`PersonalWeb protects its proprietary business applications and operations through
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`a portfolio of patents in which it is an owner, including 13 issued and pending United States
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`patents.
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`INFRINGEMENT OF U.S. PATENT NO. 5,978,791
`On November 2, 1999, United States Patent No. 5,978,791 (the “’791 patent”)
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`17.
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`was duly and legally issued for an invention entitled “Data Processing System Using
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`Substantially Unique Identifiers to Identify Data Items, Whereby Data Items Have the Same
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`Identifiers.” PersonalWeb has an ownership interest in the ’791 patent by assignment, including
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`the exclusive right to enforce the ’791 patent within the PersonalWeb Patent Field, and continues
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`to hold that ownership interest in the ’791 patent. A true and correct copy of the ’791 patent is
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`attached hereto as Exhibit A.
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`18.
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`Rackspace has infringed and continues to infringe the ’791 patent by its
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`manufacture, use, sale, importation, and/or offer for sale of the following products and services
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`within the PersonalWeb Patent Field: Rackspace Cloud Servers and GitHub Code Hosting
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`Service. Rackspace further contributes to and induces others to manufacture, use, sell, import,
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`and/or offer for sale these infringing products and services. Rackspace is liable for its
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`infringement of the ’791 patent pursuant to 35 U.S.C. § 271.
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`19.
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`Rackspace’s described acts of infringement have caused damage to PersonalWeb,
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`and PersonalWeb is entitled to recover from Defendant the damages sustained by PersonalWeb
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`as a result of Defendant’s wrongful acts in an amount subject to proof at trial. Defendant’s
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`infringement of PersonalWeb’s rights under the ’791 patent will continue to damage
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`PersonalWeb, causing irreparable harm for which there is no adequate remedy at law, unless
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`enjoined by this Court.
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`INFRINGEMENT OF U.S. PATENT NO. 6,415,280
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`20.
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`On July 2, 2002, United States Patent No. 6,415,280 (the “’280 patent”) was duly
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`and legally issued for an invention entitled “Identifying and Requesting Data in Network Using
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`Identifiers Which Are Based On Contents of Data.” PersonalWeb has an ownership interest in
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`the ’280 patent by assignment, including the exclusive right to enforce the ’280 patent within the
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`PersonalWeb Patent Field, and continues to hold that ownership interest in the ’280 patent. A
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`true and correct copy of the ’280 patent is attached hereto as Exhibit B.
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`21.
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`Rackspace has infringed and continues to infringe the ’280 patent by its
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`manufacture, use, sale, importation, and/or offer for sale of the following products and services
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`within the PersonalWeb Patent Field: Rackspace Cloud Servers and GitHub Code Hosting
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`Service. Rackspace further contributes to and induces others to manufacture, use, sell, import,
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`and/or offer for sale these infringing products and services. Rackspace is liable for its
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`infringement of the ’280 patent pursuant to 35 U.S.C. § 271.
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`22.
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`Rackspace’s described acts of infringement have caused damage to PersonalWeb,
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`and PersonalWeb is entitled to recover from Defendant the damages sustained by PersonalWeb
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`as a result of Defendant’s wrongful acts in an amount subject to proof at trial. Defendant’s
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`infringement of PersonalWeb’s rights under the ’280 patent will continue to damage
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`PersonalWeb, causing irreparable harm for which there is no adequate remedy at law, unless
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`enjoined by this Court.
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`INFRINGEMENT OF U.S. PATENT NO. 6,928,442
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`23.
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`On Aug 9, 2005, United States Patent No. 6,928,442 (the “’442 patent”) was duly
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`and legally issued for an invention entitled “Enforcement and Policing of Licensed Content
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`Using Content-based Identifiers.” PersonalWeb has an ownership interest in the ’442 patent by
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`assignment, including the exclusive right to enforce the ’442 patent within the PersonalWeb
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`Patent Field, and continues to hold that ownership interest in the ’442 patent. A true and correct
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`copy of the ’442 patent is attached hereto as Exhibit C.
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`24.
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`Rackspace has infringed and continues to infringe the ’442 patent by its
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`manufacture, use, sale, importation, and/or offer for sale of the following products and services
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`services within the PersonalWeb Patent Field: Rackspace Cloud Servers and GitHub Code
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`Hosting Service. Rackspace further contributes to and induces others to manufacture, use, sell,
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`import, and/or offer for sale these infringing products and services. Rackspace is liable for its
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`infringement of the ’442 patent pursuant to 35 U.S.C. § 271.
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`25.
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`Rackspace’s described acts of infringement have caused damage to PersonalWeb,
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`and PersonalWeb is entitled to recover from Defendant the damages sustained by PersonalWeb
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`as a result of Defendant’s wrongful acts in an amount subject to proof at trial. Defendant’s
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`infringement of PersonalWeb’s rights under the ’442 patent will continue to damage
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`PersonalWeb, causing irreparable harm for which there is no adequate remedy at law, unless
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`enjoined by this Court.
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`INFRINGEMENT OF U.S. PATENT NO. 7,802,310
`On September 21, 2010, United States Patent No. 7,802,310 (the “’310 patent”)
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`26.
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`was duly and legally issued for an invention entitled “Controlling Access to Data in a Data
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`Processing System.” PersonalWeb has an ownership interest in the ’310 patent by assignment,
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`including the exclusive right to enforce the ’310 patent within the PersonalWeb Patent Field, and
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`continues to hold that ownership interest in the ’310 patent. A true and correct copy of the ’310
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`patent is attached hereto as Exhibit D.
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`27.
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`Rackspace has infringed and continues to infringe the ’310 patent by its
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`manufacture, use, sale, importation, and/or offer for sale of the following products and services
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`within the PersonalWeb Patent Field: Rackspace Cloud Servers and GitHub Code Hosting
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`Service. Rackspace further contributes to and induces others to manufacture, use, sell, import,
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`and/or offer for sale these infringing products and services. Rackspace is liable for its
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`infringement of the ’310 patent pursuant to 35 U.S.C. § 271.
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`28.
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`Rackspace’s described acts of infringement have caused damage to PersonalWeb,
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`and PersonalWeb is entitled to recover from Defendant the damages sustained by PersonalWeb
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`as a result of Defendant’s wrongful acts in an amount subject to proof at trial. Defendant’s
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`infringement of PersonalWeb’s rights under the ’310 patent will continue to damage
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`PersonalWeb, causing irreparable harm for which there is no adequate remedy at law, unless
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`enjoined by this Court.
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`INFRINGEMENT OF U.S. PATENT NO. 7,945,539
`On May 17, 2011, United States Patent No. 7,945,539 (the “’539 patent”) was
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`29.
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`duly and legally issued for an invention entitled “Distributing and Accessing Data in a Data
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`Processing System.” PersonalWeb has an ownership interest in the ’539 patent by assignment,
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`including the exclusive right to enforce the ’539 patent within the PersonalWeb Patent Field,
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`continues to hold that ownership interest in the ’539 patent. A true and correct copy of the ’539
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`patent is attached hereto as Exhibit E.
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`30.
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`Rackspace has infringed and continues to infringe the ’539 patent by its
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`manufacture, use, sale, importation, and/or offer for sale of the following products and services
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`within the PersonalWeb Patent Field: Rackspace Cloud Servers and GitHub Code Hosting
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`Service. Rackspace further contributes to and induces others to manufacture, use, sell, import,
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`and/or offer for sale these infringing products and services. Rackspace is liable for its
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`infringement of the ’539 patent pursuant to 35 U.S.C. § 271.
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`31.
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`Defendant Rackspace’s described acts of infringement have caused damage to
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`PersonalWeb, and PersonalWeb is entitled to recover from Defendant the damages sustained by
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`PersonalWeb as a result of Defendant’s wrongful acts in an amount subject to proof at trial.
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`Defendant’s infringement of PersonalWeb’s rights under the ’539 patent will continue to damage
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`PersonalWeb, causing irreparable harm for which there is no adequate remedy at law, unless
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`enjoined by this Court.
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`INFRINGEMENT OF U.S. PATENT NO. 7,945,544
`On May 17, 2011, United States Patent No. 7,945,544 (the “’544 patent”) was
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`32.
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`duly and legally issued for an invention entitled “Similarity-Based Access Control of Data in a
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`Data Processing System.” PersonalWeb has an ownership interest in the ’544 patent by
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`assignment, including the exclusive right to enforce the ’544 patent within the PersonalWeb
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`Patent Field, and continues to hold that ownership interest in the ’544 patent. A true and correct
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`copy of the ’544 patent is attached hereto as Exhibit F.
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`33.
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`Rackspace has infringed and continues to infringe the ’544 patent by its
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`manufacture, use, sale, importation, and/or offer for sale of the following products and services
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`within the PersonalWeb Patent Field: Rackspace Cloud Servers and GitHub Code Hosting
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`Service. Rackspace further contributes to and induces others to manufacture, use, sell, import,
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`and/or offer for sale these infringing products and services. Rackspace is liable for its
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`infringement of the ’544 patent pursuant to 35 U.S.C. § 271.
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`34.
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`Defendant Rackspace’s described acts of infringement have caused damage to
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`PersonalWeb, and PersonalWeb is entitled to recover from Defendant the damages sustained by
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`PersonalWeb as a result of Defendant’s wrongful acts in an amount subject to proof at trial.
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`Defendant’s infringement of PersonalWeb’s rights under the ’544 patent will continue to damage
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`PersonalWeb, causing irreparable harm for which there is no adequate remedy at law, unless
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`enjoined by this Court.
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`INFRINGEMENT OF U.S. PATENT NO. 7,949,662
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`35.
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`On May 24, 2011, United States Patent No. 7,949,662 (the “’662 patent”) was
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`duly and legally issued for an invention entitled “De-duplication of Data in a Data Processing
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`System.” PersonalWeb has an ownership interest in the ’662 patent by assignment, including the
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`exclusive right to enforce the ’662 patent within the PersonalWeb Patent Field, and continues to
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`hold that ownership interest in the ’662 patent. A true and correct copy of the ’662 patent is
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`attached hereto as Exhibit G.
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`36.
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`Rackspace has infringed and continues to infringe the ’662 patent by its
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`manufacture, use, sale, importation, and/or offer for sale of the following products and services
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`within the PersonalWeb Patent Field: Rackspace Cloud Servers and GitHub Code Hosting
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`Service. Rackspace further contributes to and induces others to manufacture, use, sell, import,
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`and/or offer for sale these infringing products and services. Rackspace is liable for its
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`infringement of the ’662 patent pursuant to 35 U.S.C. § 271.
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`37.
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`Defendant Rackspace’s described acts of infringement have caused damage to
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`PersonalWeb, and PersonalWeb is entitled to recover from Defendant the damages sustained by
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`PersonalWeb as a result of Defendant’s wrongful acts in an amount subject to proof at trial.
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`Defendant’s infringement of PersonalWeb’s rights under the ’662 patent will continue to damage
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`PersonalWeb, causing irreparable harm for which there is no adequate remedy at law, unless
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`enjoined by this Court.
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`INFRINGEMENT OF U.S. PATENT NO. 8,001,096
`On August 16, 2011, United States Patent No. 8,001,096 (the “’096 patent”) was
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`38.
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`duly and legally issued for an invention entitled “Computer File System Using Content-
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`Dependent File Identifiers.” PersonalWeb has an ownership interest in the ’096 patent by
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`assignment, including the exclusive right to enforce the ’096 patent within the PersonalWeb
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`Patent Field, and continues to hold that ownership interest in the ’096 patent. A true and correct
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`copy of the ’096 patent is attached hereto as Exhibit H.
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`39.
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`Rackspace has infringed and continues to infringe the ’096 patent by its
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`manufacture, use, sale, importation, and/or offer for sale of the following products and services
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`within the PersonalWeb Patent Field: Rackspace Cloud Servers and GitHub Code Hosting
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`Service. Rackspace further contributes to and induces others to manufacture, use, sell, import,
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`and/or offer for sale these infringing products and services. Rackspace is liable for its
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`infringement of the ’096 patent pursuant to 35 U.S.C. § 271.
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`40.
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`Defendant Rackspace’s described acts of infringement have caused damage to
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`PersonalWeb, and PersonalWeb is entitled to recover from Defendant the damages sustained by
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`PersonalWeb as a result of Defendant’s wrongful acts in an amount subject to proof at trial.
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`Defendant’s infringement of PersonalWeb’s rights under the ’096 patent will continue to damage
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`PersonalWeb, causing irreparable harm for which there is no adequate remedy at law, unless
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`enjoined by this Court.
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`INFRINGEMENT OF U.S. PATENT NO. 8,099,420
`On January 17, 2012, United States Patent No. 8,099,420 (the “’420 patent”) was
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`41.
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`duly and legally issued for an invention entitled “Accessing Data in a Data Processing System.”
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`PersonalWeb has an ownership interest in the ’420 patent by assignment, including the exclusive
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`right to enforce the ’420 patent within the PersonalWeb Patent Field, continues to hold that
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`ownership interest in the ’420 patent. A true and correct copy of the ’420 patent is attached
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`hereto as Exhibit I.
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`42.
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`Rackspace has infringed and continues to infringe the ’420 patent by its
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`manufacture, use, sale, importation, and/or offer for sale of the following products and services
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`within the PersonalWeb Patent Field: Rackspace Cloud Servers and GitHub Code Hosting
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`Service. Rackspace further contributes to and induces others to manufacture, use, sell, import,
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`and/or offer for sale these infringing products and services. Rackspace is liable for its
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`infringement of the ’420 patent pursuant to 35 U.S.C. § 271.
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`43.
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`Rackspace’s described acts of infringement have caused damage to PersonalWeb,
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`and PersonalWeb is entitled to recover from Defendant the damages sustained by PersonalWeb
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`as a result of Defendant’s wrongful acts in an amount subject to proof at trial. Defendant’s
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`infringement of PersonalWeb’s rights under the ’420 patent will continue to damage
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`PersonalWeb, causing irreparable harm for which there is no adequate remedy at law, unless
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`enjoined by this Court.
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`COUNT ONE—PATENT INFRINGEMENT AGAINST RACKSPACE
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`44. PersonalWeb incorporates herein by reference the allegations set forth in
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`paragraphs 1-40 of this Complaint as though fully set forth herein.
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`45. Rackspace has infringed and/or continues to infringe one or more claims of the
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`Patents-in-Suit as set forth above. Rackspace is liable for direct infringement, as well as
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`indirect infringement by way of inducement and/or contributory infringement, for each of the
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`Patents-in-Suit within the PersonalWeb Patent Field pursuant to 35 U.S.C. § 271 (a), (b), (c),
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`and/or (f) as set forth above. For PersonalWeb’s claims of indirect infringement, Rackspace’s
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`end-user customers and consultants are direct infringers of the Patents-in-Suit within the
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`PersonalWeb Patent Field.
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`46. Rackspace’s acts of infringement have caused damage to PersonalWeb.
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`PersonalWeb is entitled to recover from Rackspace the damages sustained by PersonalWeb as
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`a result of Rackspace’s wrongful acts in an amount subject to proof at trial. In addition, the
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`infringing acts and practices of Rackspace has caused, is causing, and, unless such acts and
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`practices are enjoined by the Court, will continue to cause immediate and irreparable harm to
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`PersonalWeb for which there is no adequate remedy at law, and for which PersonalWeb is
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`entitled to injunctive relief under 35 U.S.C. § 283.
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`47. Rackspace has received actual notice of infringement.
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`DEMAND FOR JURY TRIAL
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`PersonalWeb hereby demands a jury for all issues so triable.
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`WHEREFORE, PersonalWeb prays for judgment as follows:
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`PRAYER
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`1.
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`that Defendant has infringed, directly and/or indirectly, one or more claims of the
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`Patents-in-Suit as described in this action;
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`2.
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`3.
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`requiring Defendant to pay PersonalWeb’s actual damages;
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`requiring Defendant to pay to PersonalWeb supplemental damages for any
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`continuing post-verdict infringement up until entry of the final judgment, together with an
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`accounting as needed;
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`4.
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`requiring Defendant to pay to PersonalWeb pre-judgment and post-judgment
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`interest on the damages awarded at the maximum rate provided by law;
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`5.
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`6.
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`7.
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`requiring Defendant to pay to PersonalWeb all costs of this action;
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`requiring Defendant to pay attorneys’ fees under 35 U.S.C. § 285;
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`enjoining Defendant, its agents, employees, representatives, successors and
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`assigns, and those acting in privity or in concert with it from further infringement of the Patents-
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`in-Suit as described in this action;
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`8.
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`in the event a final injunction is not awarded, awarding a compulsory ongoing
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`royalty; and
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`McKool 725107v1
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`13
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`Case 6:12-cv-00659-LED Document 1 Filed 09/17/12 Page 14 of 15 PageID #: 14
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`9.
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`such other and further relief as the Court deems just and equitable.
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`DATED: September 17, 2012
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`Respectfully submitted,
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`McKOOL SMITH, P.C.
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`_/s/ Sam Baxter_____________________
`Sam Baxter (Lead Counsel)
`Texas State Bar No. 01938000
`sbaxter@mckoolsmith.com
`104 East Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: (903) 923-9000
`Telecopier: (903) 923-9099
`
`Theodore Stevenson, III
`Texas State Bar No. 19196650
`tstevenson@mckoolsmith.com
`David Sochia
`Texas State Bar No. 00797470
`McKool Smith, P.C.
`300 Crescent Court, Suite 1500
`Dallas, Texas 75201
`Telephone: (214) 978-4000
`Telecopier: (214) 978-4044
`
`Steve Pollinger
`Texas State Bar No. 24011919
`spollinger@mckoolsmith.com
`McKool Smith, P.C.
`300 West Sixth Street, Suite 1700
`Austin, Texas 78701
`Telephone: (512) 692-8700
`Telecopier: (512) 692-8744
`
`Roderick G. Dorman
`rdorman@mckoolsmithhennigan.com
`Lawrence M. Hadley
`lhadley@mckoolsmithhennigan.com
`McKool Smith, P.C.
`865 South Figueroa Street, Suite 2900
`Los Angeles, California 90017
`Telephone (213) 694-1200
`Telecopier: (213) 694-1234
`
`McKool 725107v1
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`14
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`

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`Case 6:12-cv-00659-LED Document 1 Filed 09/17/12 Page 15 of 15 PageID #: 15
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`Attorneys For Plaintiff
`Personalweb Technologies, LLC
`
`David D. Wier
`David.Wier@Level3.com
`
`
`
`_/s/ David Wier _____________________
`David Wier
`
`Attorneys for Plaintiff Level 3
`Communications LLC
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`McKool 725107v1
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`15