Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 1 of 83
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`P/I. o
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`OEP1j,
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`AFFINITY LABS OF TEXAS, INC.,
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`Plaintiff,
`
`V.
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`FORD MOTOR COMPANY,
`
`Defendant.
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`AFFINITY LABS OF TEXAS, INC.,
`
`Plaintiff,
`
`V.
`
`TOYOTA MOTOR NORTH AMERICA, INC.,
`ETAL.,
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`Defendants.
`
`AFFINITY LABS OF TEXAS, INC.,
`
`Plaintiff,
`
`v.
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`VOLVO CARS OF NORTH AMERICA, LLC
`and AB VOLVO',
`
`Defendants.
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`Civil Action No. WA:13-CV-363
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`Civil Action No. WA:13-CV-365
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`Civil Action No. WA:13-CV-366
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`Plaintiff voluntarily dismissed AB Volvo on February 24, 2014.
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`

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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 2 of 83
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`AFFINITY LABS OF TEXAS, INC.,
`
`Plaintiff,
`
`V.
`
`HONDA NORTH AMERICA INC., ET AL.,
`
`Defendants.
`
`AFFINITY LABS OF TEXAS, INC.,
`
`Plaintiff,
`
`V.
`
`JAGUAR LAND ROVER NORTH AMERICA,:
`
`Defendant.
`
`AFFINITY LABS OF TEXAS, INC.,
`
`Plaintiff,
`
`V.
`
`NISSAN NORTH AMERICA INC. and
`NISSAN MOTOR CO., LTD.,
`
`Defendants.
`
`AFFINITY LABS OF TEXAS, INC.,
`
`Plaintiff,
`
`V.
`
`GENERAL MOTORS LLC,
`
`Defendant.
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`Civil Action No. WA:13-CV-367
`
`Civil Action No. WA:13-CV-368
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`Civil Action No. WA:13-CV-369
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`Civil Action No. WA:13-CV-370
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`

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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 3 of 83
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`DEFENDANTS NISSAN MOTOR CO., LTD. AND NISSAN NORTH AMERICA, INC.'s
`THIRD-PARTY COMPLAINT
`
`Defendants Nissan Motor Co., Ltd. ("NML") and Nissan North America, Inc. ("NINA")
`
`hereby for their third-party complaint, pursuant to Rule 14 of the Federal Rules of Civil
`
`Procedure, against Robert Bosch LLC ("Bosch" or "third-party defendant") state as follows:
`
`NATURE OF ACTION
`1. This is an action for indemnity against Bosch for claims of infringement of U.S. Patent
`Nos. 8,544,191 (the "191 patent"), and 8,588,680 (the "680 patent") (collectively, the
`
`"patents-in-suit") brought by Affinity Labs of Texas, LLC ("Affinity") against NINA and
`
`NML.
`
`2. Affinity's complaint alleges that NINA and NML are liable for patent infringement
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`because NINA and NML manufacture, sell, import, and/or offer for sale Nissan and
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`Infinity vehicles utilizing sound systems that are able to pair with a portable electronic
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`device, such as an MP3 player or cell phone. NINA and NML incorporate here by
`
`reference the allegations made by Affinity in its complaint (ECF No. 1), which is
`
`attached as Exhibit A.
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`3. NINA and NML deny any liability to Affinity, but assert that, if held liable to Affinity,
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`NNA and NML are entitled to indemnification from the third-party defendant.
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`4. NINA and NML manufacture and distribute motor vehicles.
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`5. Bosch supplies NINA with parts, including audio head units, which are installed into
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`motor vehicles manufactured by NINA.
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`PARTIES
`6. NINA is a California corporation with a principal place of business located in Franklin,
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`Termessee. NNA is responsible for the design, manufacturing, distribution, marketing,
`
`and sales of Nissan and Infiniti brand vehicles, and maintains a network of regional
`
`offices that support more than 1,100 independent, franchisee dealerships across the
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`United States.
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`

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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 4 of 83
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`7. NML is a Japanese corporation with a principal place of business located in Yokohama,
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`Japan. NML is responsible for designing, manufacturing, distributing, marketing, and
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`selling Nissan and Infiniti brand vehicles. NML sells Nissan and Infiniti brand vehicles
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`to NNA, and NNA distributes those vehicles to its network of dealerships.
`
`8. On information and belief, Plaintiff Affinity Labs of Texas, LLC is a Texas corporation
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`with its principal place of business at 31884 RR 12, Dripping Springs, TX 78620.
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`Affinity asserts it is the assignee and owner of the patents-in-suit.
`
`9. Robert Bosch LLC is, on information and belief, the subsidiary of a German corporation,
`Robert Bosch GmbH, organized and existing under the laws of Delaware, and having its
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`registered office at 2800 S. 25th Avenue; Broadview, Illinois 60155. Bosch designs,
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`manufactures, and sells audio sound systems used around the world by automobile
`
`manufacturers, such as NNA and NML. Bosch is registered and actively engaged in
`business within the State of Texas, and maintains an agent for service of process at
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`Corporation Service Company, dba, SCS Lawyers Inco.; 701 Brazos Suite 1050;
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`Austin, Texas 78701.
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`JURISDICTION AND VENUE
`10. The Court has original jurisdiction under 28 U.S.C. § 1331 and 1338 over related patent
`
`infringement claims. The Court has subject matter jurisdiction over this action against
`
`Boschunder28 U.S.C. § 1367(a).
`11. The Court has personal jurisdiction over Bosch pursuant to the Texas long-arm statute
`
`Tex. Civ. Prac. & Rem. Code § 17.041 et seq., since Bosch transacts business and has
`contacts in Texas directly by designing, manufacturing, and selling NINA automobile
`
`components, including audio head units, that are installed into vehicles manufactured by
`
`NINA, which NINA then sells in the State of Texas and in this District through its
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`independent dealerships. Further, Bosch is, on information and belief, fully aware that it
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`designs, manufactures, and sells automobile components that are sold throughout the
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`

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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 5 of 83
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`United States, and particularly in Texas. By designing, manufacturing, and selling
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`automobile components that Bosch is fully aware will be used in the State of Texas and
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`in this District, Bosch has participated in the allegedly infringing acts asserted by Affinity
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`in its complaint.
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`12. Bosch has sufficient minimum contacts within the State of Texas such that maintenance
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`of this suit does not offend traditional notions of fair play and substantial justice.
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`13. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) because a substantial
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`number of the alleged acts giving rise to this cause of action occurred within the Western
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`District of Texas, Waco Division. Further, venue is proper in this district pursuant to 28
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`U.S.C. § 1391(c)(2), as Bosch is subject to personal jurisdiction in this District, and
`therefore resides in this District for purposes of venue.
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`FACTUAL BACKGROUND
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`14. Bosch has a valid and enforceable contract dated January 8, 2011 with NINA, known as
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`the Master Purchase Agreement ("NINA- Bosch MPA"), for the supply of audio system
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`parts. Under this contract, Bosch designs, develops, and tests components for NINA.
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`NINA then issues purchase orders for components that Bosch then manufactures, sells,
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`and delivers to NNA. NNA then installs these components into Nissan and Infiniti
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`vehicles, including vehicles sold in the State of Texas. The NINA-Bosch MPA contains
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`specific provisions whereby Bosch agreed to indemnify NNA for any loss, liability,
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`damages, costs and expenses, including reasonable attorney fees and expert fees arising
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`from any claim alleging infringement in connection with the supplied components. The
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`NNA-Bosch MPA also contains general indemnification provisions, where Bosch agreed
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`to indemnify NINA for any third party claims. Having been sued by Affinity for
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`infringement based on their use of automobile components designed, manufactured, and
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`supplied by Bosch that are used in Nissan and Infiniti vehicles, NNA seeks
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`indemnification under the NNA-Bosch MPA.
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`3
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`

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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 6 of 83
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`COUNT!
`Indemnity
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`15. NNA and NML restate and reallege paragraphs 1 through 14 as though fully set forth
`
`herein.
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`16. Affinity filed a complaint against NNA and NML alleging damages and seeking
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`injunctive relief for infringement of the patents in suit, attached as Exhibit A. NNA and
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`NML incorporate Affinity's complaint by reference, solely for the limited purpose of its
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`allegations.
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`17. NNA and NML deny any liability, but if Affinity is successful in its claims, NNA and
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`NML may be held liable for the damages and injunctive relief prayed for in Affinity's
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`complaint solely because of the conduct of the third-party defendant, namely the use of
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`components designed, manufactured, and sold by the third-party defendant to NINA and
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`NML that are then used in Nissan and Infiniti vehicles. NINA and NML's liability would
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`be vicarious only and the direct and proximate result of the active and affirmative
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`conduct on the part of the third-party defendant.
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`18. NINA, on the one hand, has a valid and enforceable contract with the third party
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`defendant, on the other hand, as explained above.
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`19. Indemnity is express in the contract between NNA, on the one hand, and the third-party
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`defendant, on the other hand, as explained above.
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`20. NINA and NML are entitled to complete indemnification by the third-party defendant for
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`all costs of defense, costs of suit, and reasonable attorney and expert fees incurred by
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`NINA and NML in the defense of Affinity's complaint.
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`JURY DEMAND
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`NNA and NML demand a trial by jury on all issues presented in this third-party complaint.
`
`I-
`
`/I
`
`II
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`

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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 7 of 83
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`PRAYER FOR RELIEF
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`WHEREFORE, Third-party plaintiffs NNA and NML respectfully pray for:
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`A.
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`An order of the Court declaring that third-party defendant is liable for all damages
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`awarded based on Affinity's complaint against NNA and/or NML;
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`B.
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`An order of the Court awarding judgment in favor of NNA and NML against
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`third-party defendant in an amount based on the relative percentage of damages traceable to each
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`third-party defendant;
`
`C.
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`An order of the Court that NNA and NML are entitled to be fully indemnified by
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`third-party defendant for all settlements, compromises, or judgments entered into by NNA and/or
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`NML as a result of this action;
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`D.
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`For attorneys' fees, court costs, investigative costs, expert costs, and other
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`expenses incurred in the defense of Affinity's complaint;
`
`E.
`
`F.
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`A trial by jury for all issues so triable; and
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`Such other and further relief as this Court deems just.
`
`Respectfully submitted,
`
`Dated: August 13, 2014
`
`BOWMAN AND BROOKE LL
`
`SBurnett
`State Bar No. 20648050
`susan.burnett(),bowmanandbrooke.com
`Gary W. Davis, Jr.
`State Bar No. 05492500
`gary.davis(bowmanandbrooke.com
`William G. Childs
`State Bar No. 24086361
`bill.childs@bowmanandbrooke.com
`2901 Via Fortuna Drive, Ste. 500
`Austin, Texas 78746
`(512) 874-3800 (Telephone)
`(512) 874-3801 (Facsimile)
`
`

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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 8 of 83
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`JENNER & BLOCK, LLP
`
`Reginald J. Hill
`Admitted Pro Hac Vice
`rhill@jenner.com
`Peter J. Brennan
`Admitted Pro Hac Vice
`pbrennanj enner.com
`Chad J. Ray
`Admitted Pro Hac Vice
`cray@jenner.com
`353 N. Clark Street
`Chicago, Illinois 60654
`Telephone: (312) 923-2606
`Facsimile: (312) 923-2706
`
`Attorneys for Defendants
`NISSAN NORTH AMERICA, INC. and
`NISSAN MOTOR CO., LTD.
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`

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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 9 of 83
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`CERTIFICATE OF SERVICE
`
`I hereby certify that I caused a true and correct copy of the foregoing documents to be
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`served to the following via Email on this 13th day of August, 2014:
`
`Cyrus A. Morton
`Kristine A. Tietz
`Patrick M. Arenz
`ROBINS, KAPLAN, MILLER & CIRESI L.L. P.
`800 LaSalle Avenue, Suite 2800
`Minneapolis, Minnesota 55402
`camorton@kmc.corn
`katietz@rkmc.com
`pmarenz@rkmc.com
`AffinityServiceList@rkmc.com
`
`Attorneys for Plaint?ff
`
`Susan E. Burnett
`
`

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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 10 of 83
`Case 6:13—cv—OO369—JCM Document 68 Filed 08/13/14 Page 10 of 83
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`EXHIBIT A
`EXHIBIT A
`
`

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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 11 of 83
`Case 6:13-cv-00369-WSS Document 1 Filed 11/21/13 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`AFFINITY LABS OF TEXAS, LLC,
`
`Plaintiff,
`
`V.
`
`NISSAN NORTH AMERICA INC.,
`NISSAN MOTOR CO., LTD.,
`
`Defendants.
`
`Case No. 6:13-cv-369
`
`JURY TRIAL DEMANDED
`
`COMPLAINT FOR PATENT INFRINGEMENT
`
`Plaintiff Affinity Labs of Texas, LLC ("Affinity Labs") for its causes of action against
`
`Defendants, Nissan North America Inc. and Nissan Motor Co., Ltd. (collectively, "Nissan"
`
`and/or "Defendants"), states and alleges on knowledge and information and belief as follows:
`
`PARTIES
`
`1.
`
`Plaintiff Affinity Labs is a Texas limited liability company having offices at 31884
`
`RR 12, Dripping Springs, TX 78620.
`
`2.
`
`On information and belief, Defendant Nissan North America, Inc. is a California
`
`corporation with its principal place of business located at I Nissan Way, Franklin, Tennessee,
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`37067.
`
`3.
`
`On information and belief, Defendant Nissan Motor Co., Ltd., is a Japanese company
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`with its headquarters located at 1-1, Takashima 1 -chome, Nishi-ku, Yokohama-shi, Kanagawa
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`220-8686, Japan.
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`1823818.1
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`1
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`

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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 12 of 83
`Case 6:13-cv-00369-WSS Document 1 EHed 11/21/13 Page 2 of 14
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`JURISDICTION
`
`4.
`
`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
`
`1331 and 1338(a), in that this action arises under the federal patent statutes, 35 U.S.C. § 271
`
`and 28 1-285.
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`5.
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`This Court has personal jurisdiction over Nissan. Upon information and belief,
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`Nissan has committed and continues to commit acts giving rise to this action within Texas and
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`within this judicial district and Nissan has established minimum contacts within the forum such
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`that the exercise of jurisdiction over Nissan would not offend traditional notions of fair play and
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`substantial justice. For example, Nissan has committed and continues to commit acts of
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`infringement in this District, by among other things, offering to sell and selling products that
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`infringe the Asserted Patents, including the Nissan Altima with the Nissan Connect stereo
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`system. In conducting its business in Texas and this judicial district, Nissan derives substantial
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`revenue from infringing products being sold, used, imported, and/or offered for sale or providing
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`service and support to Nissan's customers in Texas and this District, and will continue to do so
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`unless enjoined by this Court.
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`VENUE
`
`6.
`
`Venue in the Western District of Texas is proper pursuant to 28 U.S.C. § 139 1(b)
`
`and (c) and 1400(b) because Nissan has committed acts within this judicial district giving rise to
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`this action, and Nissan has and continues to conduct business in this judicial district, including
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`one or more acts of selling, using, importing, and/or offering for sale infringing products or
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`providing service and support to Nissan's customers in this District.
`
`7.
`
`Venue in the Western District of Texas is also proper because on information and
`
`belief, Nissan North America, Inc. is authorized to do business in Texas and has appointed
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`1823818.1
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`2
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`

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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 13 of 83
`Case 6:13-cv-00369-WSS Document 1 Filed 11/21/13 Page 3 of 14
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`LexisNexis Document Solutions, Inc., 211 E. 7th Street, Suite 620, Austin, Texas 78701-3218 as
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`its agent for service of process.
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`Venue in the Western District of Texas is further proper because Nissan North
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`8.
`America, Inc. sells Nissan-branded products in Texas, including in the Western District of Texas,
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`through authorized dealers. Consumers can go to Nissan North America, Inc.'s website
`(www.nissanusa.com) and click on "Find a Dealer," which directs such inquiries to a list of
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`Nissan-branded automobile dealerships, including South Point Nissan in Austin, Texas and
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`Town North Nissan in Austin, Texas. Consumers can also request quotes on Nissan-branded
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`automobiles via the nissanusa,com website. Consumers can also browse local dealership
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`inventories directly on the nissanusa.com website.
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`9.
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`Venue in the Western District of Texas is also proper because Nissan North
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`America, Inc. sells Infiniti-branded automobiles in the Western District of Texas. Clicking on
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`"Locate a Retailer" from Nissan's website (www.infinitiusa.com) directs such inquiries to a list
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`of Infiniti-branded automobile dealerships, including Austin Infiniti, an authorized Infiniti-
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`branded dealership in Austin, Texas. Consumers can request quotes on Infiniti-branded
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`automobiles via the infinitiusa.com website. Consumers can also browse local dealership
`
`inventories directly on the infinitiusa.com website.
`
`10. Venue in the Western District of Texas is further proper because Affinity Labs is
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`headquartered in this District in Dripping Springs, Texas.
`Ii. Venue in the Western District of Texas is further proper because the majority of
`Affinity Labs' documents and relevant evidence is located at Affinity Labs' headquarters within
`
`this District and numerous witnesses are also located within this District.
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`1823818.1
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`3
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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 14 of 83
`Case 6:13-cv-00369-WSS Document 1 Filed 11/21/13 Page 4 of 14
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`12. Venue in the Western District of Texas is also proper because Affinity Labs is
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`organized and governed by the limited liability company laws of Texas and is subject to taxes in
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`Texas. Affinity Labs maintains a registered agent for service of process in Texas.
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`13. Venue in the Western District of Texas is also proper because this District is
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`centrally located to resolve common issues of fact among Affinity Labs and the Defendants.
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`BACKGROUND
`
`Affinity Labs
`
`14. Affinity Labs restates and realleges each of the allegations set forth above and
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`incorporates them herein.
`
`15. Affinity Labs was founded in 2008 by Russell White and Harlie Frost.
`
`16. Russell White is a successful entrepreneur and patent attorney. Mr. White grew up
`
`in Houston, Texas, and has an undergraduate degree in mechanical engineering from Texas
`
`A&M. Mr. White also graduated from the University of Temple Law School. After earning his
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`law degree, Mr. White co-founded SBC Knowledge Ventures, an entity within AT&T.
`
`17. Mr. White is also a prolific inventor. Mr. White is listed as an inventor on at least
`
`twenty-five separate United States patents.
`
`18. On March 28, 2000, Mr. White and Kevin R. Imes filed a detailed patent application,
`
`No. 09/537,812 ("the '812 application") with the United States Patent and Trademark Office
`
`("PTO")
`
`19.
`
`The '812 application addressed the problem of navigating through and playing audio
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`content stored on a portable electronic audio device, such as an MP3 player or cell phone, using
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`a different electronic device.
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`1823818.1
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`4
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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 15 of 83
`Case 6:13-cv-00369-WSS Document 1 Filed 11/21/13 Page 5 of 14
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`20. The '812 application disclosed the ability to connect a portable electronic device,
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`such as an MP3 player or cell phone, to a second device such as an automobile with a display
`
`and sound system. As disclosed in the '812 application, the music available on the portable
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`device can then be displayed and selected using controls on an automobile stereo system, and
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`played through the speakers.
`
`21. Mr. White and Mr. Imes made this disclosure in the '812 application over a year
`
`before the iPod was released in October 2001, and years before the functionality of having the
`
`music available on a portable device be displayed and selected using controls on an automobile
`
`stereo system and played through the speakers was available using an iPhone and some luxury
`
`vehicles.
`
`22. On October 8, 2013, the PTO issued United States Patent No. 8,554,191, entitled
`
`"System and Method for Managing Media" ("the '191 patent"), a copy of which is attached as
`Exhibit A. The '191 patent was issued from a continuation application claiming priority to the
`
`'812 application.
`
`23. On November 19, 2013, the PTO issued United States Patent No. 8,588,680, entitled
`"System and Method to Communicate Targeted Information" ("the '680 patent"), a copy of
`which is attached as Exhibit B. The '680 patent was issued from a continuation application
`
`claiming priority to the '812 application.
`24. The '191 and '680 patents (collectively, "the Asserted Patents") are in the same
`
`patent family and both claim priority to the '812 application, which was filed with the PTO on
`March 28, 2000 and issued on March 6, 2007 as United States Patent No. 7,187,947, entitled
`
`"System and Method for Communicating Selected Information to an Electronic Device."
`
`1823818.1
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`5
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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 16 of 83
`Case 6:13-cv-00369-WSS Document 1 Filed 11/21/13 Page 6 of 14
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`25. Other patents in the '191 and '680 patent family have been cited by major businesses
`
`in the computer, software, communications, automotive, and mobile industries. For example,
`
`U.S. Patent No. 7,324,833 and U.S. Patent No. 7,634,228 have been cited in at least 38 patents
`
`and publications, with many of these patents assigned to corporations such as Apple, AT&T,
`
`Toyota, Google, Nokia, Bose, and Volkswagen.
`
`26. Affinity Labs holds legal title, by assignment, to the Asserted Patents.
`
`COUNT I
`
`Infringement of U.S. Patent No. 8,554,191 by Nissan
`
`27. On information and belief, Nissan manufactures, uses, sells, offers to sell, markets,
`
`imports, has manufactured, used, sold, offered to sell, marketed, and/or imported products that
`
`infringe or have infringed the '191 patent.
`
`28. As a result, Affinity Labs brings this action to seek damages and injunctive relief
`
`arising out of Nissan's infringing acts.
`
`29. Affinity Labs restates and realleges each of the allegations set forth above and
`
`incorporates them herein.
`30. Upon information and belief, in violation of 35 U.S.C. § 27 1(a), Nissan has
`
`infringed, and if not enjoined, will continue to infringe the '191 patent by (1) manufacturing,
`
`using, marketing, selling, offering for sale, and/or importing, without authority, products and
`
`services that are covered by one or more claims of the '191 patent, literally and/or under the
`doctrine of equivalents; (2) inducing infringement of one or more claims of the '191 patent, in
`violation of 35 U.S.C. § 271(b); and/or (3) contributing to the infringement of one or more
`claims of the '191 patent, in violation of 35 U.S.C. § 271(c). In particular, Nissan infringes one
`or more claims of the '191 patent directly and indirectly, literally and under the doctrine of
`
`1823818.1
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`6
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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 17 of 83
`Case 6:13-cv-00369-WSS Document 1 FHed 11/21/13 Page 7 of 14
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`equivalents, and by inducement and contributory
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`infringement by (1) manufacture, use,
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`marketing of, sale, offer for sale, and/or importation of Nissan automobiles with sound systems,
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`including at least, for example, the Nissan Altima; and (2) using Nissan automobiles with sound
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`systems, including at least, for example, the Nissan Altima, as part of the audio system and
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`methods claimed in the '191 patent.
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`31. Also on information and belief, Nissan markets and sells Nissan automobiles with
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`sound systems, including at least, for example, the Nissan Altima. Nissan markets and sells its
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`Nissan automobiles with sound systems to customers and potential customers that include, for
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`example, dealerships and other companies in the vehicle industry in the United States, in addition
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`to individual customers in the United States.
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`32. Also on information and belief, Nissan markets and sells Nissan automobiles
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`containing a Bluetooth compliant communication module supplied by Visteon.
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`33.
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`In addition, on information and belief, Nissan has actively induced and is actively
`
`inducing others, such as Nissan's customers, to directly infringe the '191 patent in this District
`
`and elsewhere in the United States in violation of 35 U.S.C. § 271(b). For example, on
`
`information and belief, Nissan and/or its distributors or representatives have sold or otherwise
`provided Nissan automobiles with sound systemsincluding at least, for example, the Nissan
`Altimato third parties, such as Nissan's customers. Nissan's customers, on information and
`belief, have directly infringed and are directly infringing the '191 patent. Moreover, Nissan
`specifically intends for and encourages its customers to use technology in violation of the '191
`patent. For example, by marketing and selling its automobiles with sound systems that are able
`to pair with a portable electronic device, such as an MP3 player or cell phone, Nissan has
`
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`encouraged and is encouraging its customers to use its automobiles with sound systems and,
`
`thus, to directly infringe the '191 patent.
`
`Furthermore, on information and belief, Nissan has also contributed to and is
`34.
`contributing to direct infringement of the '191 patent by third parties, such as Nissan's
`customers, in this District and elsewhere in the United States, in violation of 35 U.S.C. § 271(c).
`For example, on information and belief, Nissan has contributed to and is contributing to
`infringement of the '191 patent by selling its customers Nissan automobiles with sound systems
`that are able to pair with a portable electronic device, such as an MP3 player or cell phone,
`including at least, for example, the Nissan Altimathe use of which by Nissan's customers has
`
`directly infringed and is directly infringing the '191 patent.
`35. Nissan does not have a license or permission to use the claimed subject matter in the
`
`'191 patent.
`36. Affinity Labs has been injured and has been caused significant financial damage as a
`
`direct and proximate result of Nissan's infringement of the '191 patent.
`37. Nissan will continue to infringe the '191 patent, and thus cause irreparable injury and
`
`damage to Affinity Labs unless enjoined by this Court.
`38. Affinity Labs is entitled to recover from Nissan the damages sustained by Affinity
`
`Labs as a result of Nissan's wrongful acts in an amount subject to proof at trial.
`
`COUNT II
`
`Infringement of U.S. Patent No. 8,588,680 by Nissan
`39. On information and belief, Nissan manufactures, uses, sells, offers to sell, markets,
`imports, has manufactured, used, sold, offered to sell, marketed, and/or imported products that
`
`infringe or have infringed the '680 patent.
`
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`40. As a result, Affinity Labs brings this action to seek damages and injunctive relief
`
`arising out of Nissan's infringing acts.
`
`41. Affinity Labs restates and realleges each of the allegations set forth above and
`
`incorporates them herein.
`
`42. Upon information and belief, in violation of 35 U.S.C. § 271(a), Nissan has
`
`infringed, and if not enjoined, will continue to infringe the '680 patent by (1) manufacturing,
`
`using, marketing, selling, offering for sale, and/or importing, without authority, products and
`
`services that are covered by one or more claims of the '680 patent, literally and/or under the
`
`doctrine of equivalents; (2) inducing infringement of one or more claims of the '680 patent, in
`violation of 35 U.S.C. § 271(b); and/or (3) contributing to the infringement of one or more
`
`claims of the '680 patent, in violation of 35 U.S.C. § 271(c). In particular, Nissan infringes one
`or more claims of the '680 patent directly and indirectly, literally and under the doctrine of
`
`equivalents, and by inducement and contributory infringement by (1) manufacture, use,
`
`marketing of, sale, offer for sale, and/or importation of Nissan automobiles with sound systems,
`
`including at least, for example, the Nissan Altima; and (2) using Nissan automobiles with sound
`
`systems, including at least, for example, the Nissan Altima, as part of the audio system and
`
`methods claimed in the '680 patent.
`
`43. Also on information and belief, Nissan markets and sells Nissan automobiles with
`
`sound systems, including at least, for example, the Nissan Altima. Nissan markets and sells its
`Nissan automobiles with sound systems to customers and potential customers that include, for
`
`example, dealerships and other companies in the vehicle industry in the United States, in addition
`
`to individual customers in the United States.
`
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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 20 of 83
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`44.
`
`In addition, on information and belief, Nissan has actively induced and is actively
`
`inducing others, such as Nissan's customers, to directly infringe the '680 patent in this District
`
`and elsewhere in the United States in violation of 35 U.S.C. § 271(b). For example, on
`
`information and belief, Nissan and/or its distributors or representatives have sold or otherwise
`
`provided Nissan automobiles with sound systemsincluding at least, for example, the Nissan
`
`Altimato third parties, such as Nissan's customers. Nissan's customers, on information and
`belief, have directly infringed and are directly infringing the '680 patent. Moreover, Nissan
`specifically intends for and encourages its customers to use technology in violation of the '680
`
`patent. For example, by marketing and selling its automobiles with sound systems that are able
`
`to pair with a portable electronic device, such as an MP3 player or cell phone, Nissan has
`
`encouraged and is encouraging its customers to use its automobiles with sound systems and,
`
`thus, to directly infringe the '680 patent.
`
`Furthermore, on information and belief, Nissan has also contributed to and is
`
`45.
`contributing to direct infringement of the '680 patent by third parties, such as Nissan's
`customers, in this District and elsewhere in the United States, in violation of 35 U.S.C. § 271(c).
`For example, on information and belief, Nissan has contributed to and is contributing to
`
`infringement of the '680 patent by selling its customers Nissan automobiles with sound systems
`
`that are able to pair with a portable electronic device, such as an MP3 player or cell phone,
`including at least, for example, the Nissan Altimathe use of which by Nissan's customers has
`
`directly infringed and is directly infringing the '680 patent.
`46. Nissan does not have a license or permission to use the claimed subject matter in the
`
`'680 patent.
`
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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 21 of 83
`Case 6:13-cv-00369-WSS Document 1 Filed 11/21/13 Page 11 of 14
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`47. Affinity Labs has been injured and has been caused significant financial damage as a
`
`direct and proximate result of Nissan's infringement of the '680 patent.
`
`48. Nissan will continue to infringe the '680 patent, and thus cause irreparable injury and
`
`damage to Affinity Labs unless enjoined by this Court.
`
`49. Affinity Labs is entitled to recover from Nissan the damages sustained by Affinity
`
`Labs as a result of Nissan's wrongful acts in an amount subject to proof at trial.
`
`DEMAND FOR TRIAL BY JURY
`
`Affinity Labs demands a jury trial on all issues so triable, pursuant to Rule 38 of the
`
`Federal Rules of Civil Procedure.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff Affinity Labs prays for the following relief:
`
`1. A declaration that Nissan has infringed and is infringing the '191 and '680 patents
`
`and is liable to Affinity Labs for infringement;
`
`2. An order enjoining Nissan from infringing the '191 and '680 patents;
`
`3.
`
`If a permanent injunction is not granted, a judicial determination of the conditions
`
`for future infringement such as a royalty bearing compulsory license or such other relief as the
`
`Court deems appropriate;
`
`4. An award of damages, including pre-judgment and post-judgment interest, in an
`
`amount adequate to compensate Affinity Labs for Nissan's infringement of the '191 and '680
`
`patents, and that the damages be trebled pursuant to 35 U.S.C. § 284;
`
`5. An equitable accounting of damages owed by Nissan for the period of infringement
`
`of the '191 and '680 patents, following the period of damages established by Affinity Labs at
`
`trial;
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`Case 6:13-cv-00369-JCM Document 68 Filed 08/13/14 Page 22 of 83
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`6. A finding that this case is exceptional and an award of attorneys' fees pursuant to 35
`
`U.S.C. § 285;
`
`7. An award of costs, expenses, and disbursements; and
`
`8